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Can One Book and One Lawyer Unmuddle Our Minds on Licensing?
on September 12, 2004
In his book, "Understanding Open Source and Free Software Licensing" (193 pages , O'Reilly Media, 2004, ISBN 0-596-00581-4), Andrew M. St. Laurent attempts to help readers understand the variations and complexities involved in deciding what kind of licensing model to apply to software being developed and how to understand the complexities and requirements of open source and free software licensing that someone may want to use and incorporate in software packages being developed for internal use and/or external distribution. If you are willing to slog through this short book (I say slog because it is full of legal terminology) to filter out his explanations, you may find this book useful. If you are not, you may find yourself frustrated.
As a lawyer, Mr. St. Laurent does a very capable job in explaining the history of copyright law and then picking apart what the individual sections of licences actually mean. But he lost me early on by the very way he organizes and characterizes certain fundamental concepts, and this presentation is carried through out the book. At the outset, he talks about the fact that licenses are in fact contracts, but does not get into detailed discussions of how contracts are formed and the issues of contracts until Chapter 6. In this chapter he talks about assumptions about contracts and meanders his ways around to discussions of the required elements to have a contract, but never addresses them as such. Instead, he treats them as "concepts" as opposed to requirements. This discussion, which should have been covered in Chapter 1 as a succinct discussion of the required elements of a valid contract, easily gets lost as the readers may have struggled through all of the legal jargon and analysis that proceeded it. If he had done so, the discussion around each of the licenses could have been presented and understood in a more straightforward manner.
That leads to my second criticism of the book. He treats each type of license (GPL, MIT, BSD, GNU General Public License, etc) individually, which made it more difficult to cross reference. As a reader interested in the best type of license to work with or how to understand a license presented, I would preferred to have each element of s standard license discussed, followed up by a comparison of how each license type addresses this issue. At the end (or even as an addendum), a chart showing the relationships, restrictions, permissions, etc of all the licenses would have been very useful.
This is not to say that the book is without merit. He does make it easy to see how people and companies/corporations can easily slip up in how they approach open source/free software. He also talks about how these different types of licensing models have evolved over time. And without saying it, he started my mind thinking about the concept of "legal capacity" and contracts. In most of the United States, a widely held legal concept is that an unemancipated minor (i.e. someone under the age of 18) does have the legal capacity to enter into a contract and these contracts cannot be legally enforced. If this continues to be held as a legal principal, how can any software license be enforced against young people who buy, sell, trade, "liberate" ( a nicer word for stealing copies), or do other things with software they have purchased? This might make for an interesting discussion down the road.
So who should read this book? This book should be retained by business control, purchasing/acquisition and information system audit professionals as a guide when reviewing licensing issues related to internal controls and IS governance. These professionals should read and digest the material, with the help of legal counsel, and educate developers, administrators, and line of business project sponsors as to what it means and how it applies. It is not a book for developers and administrators should have themselves unless they really want to get into legal nitty gritty.
The Business Controls Caddy Rating: Bogey on Short Par 4.
Christopher Byrne, IBM CAAD/CASA
The Cayuga Group, LLC
"The Business Controls Caddy"