Legal Issues for the Use of Free and Open Source Software in Government

Nic Suzor, BInfTech/LLB Graduand (QUT), Brian Fitzgerald, Head of the School of Law, Queensland University of Technology, Australia, and Graham Bassett, Barrister, Bank of New South Wales Chambers, Brisbane, Australia

5/09/2008
(Original Publish Date: 2004)

Software licensing has two approaches - proprietarial and non-proprietarial. Proprietary methods involve employing a team of programmers and tying them to a non-disclosure agreement. Cloistered for a period of time, they create, test and debug their code. Most importantly, copyright is claimed over the resulting code. Software is marketed as a copyright license and defined as “any product we make available for license for a fee”. Bill Gates has made it clear that code is zealously guarded and presented in executable form only: “...a competitor who is free to review Microsoft’s source code... will see the architecture, data structures, algorithms and other key aspects of the relevant Microsoft product. That will make it much easier to copy Microsoft’s innovations, which is why commercial software vendors generally do not provide source code to rivals”.