Free and open source software
Produced in partnership with Andrew Katz of Moorcrofts
Free and open source software

The following TMT practice note produced in partnership with Andrew Katz of Moorcrofts provides comprehensive and up to date legal information covering:

  • Free and open source software
  • What is free and open source software?
  • The Open Source Definition
  • The Free Software Definition
  • History
  • Origins of the FSF
  • Creation of the GPL and ‘copyleft’
  • Open source and Linus Torvalds
  • Early uses of open source
  • Open source today
  • More...

This Practice Note considers the following commercial and legal issues arising from the use of free and open source software:

  1. What is free and open source software?

  2. History

  3. Benefits

  4. Upstreaming and forking

  5. Free and open source licences

  6. Distribution of modified works (and the reciprocal effect)

  7. Software as a service (SaaS)

  8. Compliance requirements

  9. Licence incompatibility

  10. Contract or licence

  11. Patents and trade marks

  12. Corporate transactions

  13. Software licensing

  14. Enforcement

Free and open source software is the collective name for software which is available under a licence that grants the recipient the right to use it, modify it, and distribute it (either the original or the modified version) free of charge or royalty, and to which the source code of the software is available.

This is in contrast to the software licences which lawyers are typically more familiar with which may seek to restrict the licensee from accessing the source code, using the software across multiple users, locations or computers, and from making and distributing copies. Free and open source software (sometimes called ‘FOSS’) emphasises freedom over restriction. Although it is available free of charge (gratis), the ‘free’ in ‘free software’ is intended to connote liberty, not price. Another acronym, ‘FLOSS’ is sometimes used where the ‘L’ stands for ‘libre’.

This note uses the terms ‘free software’ and ‘open source’ interchangeably, which reflects usage in the real world, although there are

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