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AU-OSEG FAQ

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Questions Index

Questions and Answers

Q: What is open source software?

Q: What are the implications of open source software?

Q: What is the history of open source software?

Q: Why isn't open source the way all software was done?

Q: What does open source software mean for me?

Q: How is it supported?

Q: What does it really cost?

Q: Does it create jobs?

Q: How does it relate to Copyright, Patent and Competition law?

Surprisingly, FOSS is nothing but copyright law. It may have elements of contract law but, typically the right to use and distribute software licensed under an open source licence is driven entirely from the copyright law. What's more, at least for the GPL, it has been specifically designed in this way. Copyright is a legislative monopoly. It has its origins in a censorship regime which itself has its origins in the Reformation and Counter Reformation. The earliest copyright legislation not solely serving a censorship purpose is the Statute of Anne (1709). For a more detailed history see this paper.

Copyright was extended to cover software in Australia in June 1984 (and the US in 1980), so it is a very recent legislative extension of the copyright monopoly. The High Court of Australia has held that, prior to that time, it was legal to make soft copies of computer programs (Computer Edge Pty Ltd v. Apple Computer Inc. (1986) 161 CLR 171). Copyright in a work (usually) vests in the author of that work provided that the work meets certain criteria. Copyright is the entitlement to a collection of monopolies over actions. In Australian law, these entitlements include monopolies over:

The extent of these monpolies is defined by such things as fair dealing rights. However, to the extent of their definition, they are absolute monopolies.

A natural consequence of these monopolies vesting in a person is that no other person can perform any of those acts without the permission of the copyright holder. This is where licensing comes in. A licence is simply another word for permission. If I have your licence (or if I license you) to do an act, then I have your permission to do that act. Note: In the US "licences" don't exist (they are called "licenses").

FOSS licences are the means by which you (and any other person) is permitted to do something which would otherwise be absolutely prohibited by law. Without the copyright law an open source licence would be unenforceable. It is therefore utterly false to suggest that to support open source is to oppose copyright. Without copyright open source licensing would not function.

When copyright was extended to cover software, the thinking was that the most effective way of utilising it would be to use copyright as a means to jealously guard a person's software. Since that time consumers of software have seen the evolution of serial monopolies and anti-competitive licensing practices (in fact, software licensing is actually excluded from most of the prohibitions on restrictive trade practices in Part IV of the Trade Practices Act 1974). This has lead to inefficiency in the market and high prices for consumers. Open source takes a critical look at that approach. It says instead that market efficiency is maximised when copyright is used to foster and support community participation. That is, when the market for software is subject to effective deregulation. In other words, FOSS converts the old command economy model, where one vendor controls the evolution of a software package, into a free software market, where many vendors are able to compete in relation to the evolution of that package.

Q: How are people rewarded for creating FOSS?

Q: How are FOSS developers trained?

Q: Who do I talk to about FOSS?

Q: What is the difference between open source software and open standards?

Q: What are the privacy implications of FOSS?


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