Primer on FOSS–from a Philippine Legal Perspective

I read an interesting blog post today from Michael Dizon, who used to be a Senior Lecturer at the UP College of Law and whose interests, among others, is ICT law, policy and practice, and Free and Open Source Software or FOSS.

He offers a nice primer on FOSS, but more interestingly, provides a perspective on the legality and enforceability of FOSS in Philippine law:

In general, FOSS licenses are valid contracts. They comply with the essential requisites of a contract: consent (implied consent through the use of the program), object (use, access, modification and subsequent distribution of the program) and cause (obligation of the user to grant subsequent users the right to access, modify and distribute the program or any derivative thereof).

However, FOSS licenses may be subject to the provisions of technology transfer arrangements (TTA) under the Intellectual Property Code. A TTA refers to contracts or agreements involving the transfer of systematic knowledge for the manufacture of a product, the application of a process, or rendering of a service including management contracts; and the transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software except computer software developed for the mass market. If they are considered TTAs, FOSS licenses must contain the mandatory provisions but none of the prohibited clauses enumerated in the Intellectual Property Code.

You can read the rest over at Michae’ls blog. This is new insight for me and find the information really useful–as its very hard to find thoughts around open source (other than trechnology) locally.

Some of the facts seem dated though. He says that:

Technical support: FOSS has limited technical support.

Warranty: Source code availability and the lack of centralized control over the code limits, limits, if not totally eliminates, any form of warranty over the FOSS products.

A lot of popular open source projects nowadays are released as “commercially supported” code or have dual licensing. This marries the advantages of commercial software in that control and support is centralized and coordinate, with the inherent advantages of open source such as code transparency, low cost, flexibility, etc. Check out projects such as MySQL, Acquia, SugarCRM, Alfresco, and many others. These projects, often are released with a dual license, which if clear legal protection is an issue for an organization–they can opt to get.