Brussels / 31 January & 1 February 2015


Towards legal criteria for best practices in free software/open source development

This talk will propose several ideas for inclusion in a set of modern legal standards for good practices in FLOSS development and governance beyond the traditional emphasis on software freedom-conformant source code licensing. The theme will be maximizing diverse, egalitarian and authentically meritocratic participation, minimizing legal impediments, and avoiding distortion or corruption by powerful project stakeholders. Ideas to be discussed include distributed and symmetrical copyright licensing, fair trademark policies, appropriate approaches to patent nonassertion by corporate participants, and commitments by projects or associated foundations to promoting diverse and safe environments for development work.

Ideas discussed in this talk may form the basis for work done by the Open Source Initiative during the coming year.

It was traditionally assumed that licensing of source code under a free software/open source license, with its basic forkability guarantee, was sufficient for software to be free. More recently, some have suggested that source code licensing criteria is insufficient to capture what is truly normative in the development and governance of FLOSS projects, but no settled view on what constitutes "open development" or "good FLOSS governance" has yet emerged.

While some ideas that have been suggested for defining so-called "open development" and good project governance focus on technical criteria, this talk will discuss those that are essentially legal in nature, and the policy justifications for their inclusion. At root these concern the desire to maximize diverse participation on an egalitarian and authentically meritocratic basis with a minimum of legal or other structural impediments, and an avoidance of distorting or corrupting influence by relatively powerful or influential project participants or governance stakeholders.

Important examples of such legal criteria include distributed copyright ownership coupled with symmetrical inbound/outbound licensing, as well as community fairness in trademark policy formulation and the arguable need for external mechanisms of patent nonassertion for projects dominated by corporate contribution. I will also argue that it is an essential legal feature of good governance for projects or their affiliated foundations to affirmatively prevent or police abusive or exclusionary behavior by project participants. Some focus will be placed on problems presented by large-scale, well-known projects that receive significant corporate participation.


Richard Fontana