Free Software but not Open Source

It is possible for software to be Free Software (in the sense of GPL version 2 compatible), and yet not satisfy the requirements of the Open Source Initiative for being an Open Source license. This is an obscure corner case in the GPL, because people usually (not always) mean Free Software when they say “Open Source” — stressing a technical detail that is a prerequisite for Freedom over Freedom itself.

The relevant bit of the GPLv2 is clause 8:

8. If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License.

You could write GPLv2 licensed software whose distribution to the United States is prohibited, for instance. This clause allowing additional restrictions based on geography has not survived in the GPL version 3.

In any case, for a GPLv2 plus geographical restriction license, the problematic requirement is requirement 5, No Discrimination Against Persons or Groups, formulated as: The license must not discriminate against any person or group of persons. Clearly restricting a GPLv2 licensed product to a certain geographical area discriminates against a specific group (i.e. those outside that area).

I’m told — but have not verified — that there are also two Open Source licenses that are not Free Software (i.e. the converse of the compatibility issue pointed out here). I’m also told that they are used by one project each, so it’s not a huge burden on the Free Software community.

7 thoughts on “Free Software but not Open Source

  1. I’m also told that they are used by one project each, so it’s not a huge burden on the Free Software community.

    — doesn’t that depend on what projects they are? Eg if the would be the linux kernel and we’d be unlucky 😉

  2. Don’t know about the compatibility and all that, I’m most definitely not a lawyer.

    But it seems to me you are reading the exclusion the wrong way around.

    The way I would interpret that is…

    If I live in a country that doesn’t recognize a certain patent that is recognized in some other countries and I create software that would be infringing that patent, I could exclude distribution to those countries where the patent is recognized.

    So if that is the case, this would be something the original author could use to protect themselves from persecution in those countries that recognize the patent, not something that can be used to arbitrarily exclude distribution in certain countries just because the author of the code doesn’t like those countries.

    Later, Seeker

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  5. @jos – yeah, but those aren’t it. If they were important projects that are regularly integrated with other software, then we would have heard of it. I’ll have to hunt down just which ones they are some day.

  6. @seeker – same effect. It’s not about the intention of the exclusion, it’s simply that there is an exclusion of a group of people at all.

  7. “same effect. It’s not about the intention of the exclusion”

    I can see arguments on both sides.

    On the one side it could be said that it is overly vague and open to interpretation, leading to the potential for abuse in terms of the broader opensource landscape.

    On the other side, if it is already considered illegal to distribute some software in a country because of the patent situation in that country… What difference does it make to the people there if you add an exception that excludes distribution to that country? Theoretically they are already excluded because of the laws within their own country.

    Seems to me the big question would be, if the situation in that country changes, the patent is overturned/expired, or the patent holder gives up the right to prosecute violations, does the exclusion still have teeth or does it automatically become OK to distribute the software in that country in spite of the exclusion since the situation that originally allowed the exclusion no longer exists?

    Later, Seeker