Don’t believe the hype - viral licensing is still a viable business model

Wired magazine recently published a post on its Enterprise blog discussing the increasing popularity of permissive open source licenses, like the Apache license, compared with viral free software licenses like the GPL.  There’s an interesting story to be told here, but Wired’s post doesn’t accurately describe the situation.

The article, starting with the title “Open Sourcers Drop Software Religion for Common Sense,” implies that contributors are “dropping” viral licenses like the GPL in favor of permissive licenses like Apache.  While it’s true that the percentage of open source projects using vira llicenses has declined, the number of projects using viral licenses continues to increase.  It’s just that the rate of increase in the number of projects using viral licenses isn’t as great as the rate of increase in the number of projects using permissive licenses.

I’m not aware of any evidence that “the world’s open source projects are gradually moving away from restrictive licenses such as the GPL and towards more permissive licenses such as the Apache,” as Wired claims.  In fact, unless a project has meticulously collected assignment agreements from each of its contributors, relicensing a viral code base under a permissive license is practically impossible.  Viral licensing and dual licensing (think MySQL) are still relevant to companies built on open source.

It’s wonderful that we have access to a vibrant intellectual commons with software under a variety of open source licenses.  It’s also important to remember that some thirty years ago the “free software community” was literally a single hacker carving out that commons in a world where proprietary software was the norm.  There’s a very good argument to be made that without the early viral licenses causing irrevocable contributions to grow that commons, we wouldn’t be in a position to have today’s luxury of choice.

I’ll end by noting that, to date, most financially successful open source companies (e.g., Red Hat, MySQL) are based on free software projects under a viral license.  Only time will tell whether companies leveraging permissive open source will enjoy the same measure of success.

Robert Blasi is a partner in Goodwin Procter’s Intellectual Property group and a leader of Goodwin’s open source practice. He will be speaking on patents and cloud computing on May 22 at Open Source Business Conference 2012. This article is not legal advice and the opinions expressed are Mr. Blasi’s and not those of his clients, Goodwin Procter, or the clients of Goodwin Procter.