Today it is obvious that open source both as a development model as well as a licence form is generally accepted among large and small private companies. Back at the end of 2008 the research company Gartner predicted that by the end of 2009 practically all major companies would, to a varying extent, be using open source software. (See 100 Percent of Businesses To Use Opensource by 2010 Says Gartner)

When companies increasingly use open source software, it is due to the fact that there are quite a number of obvious advantages involved. Some of these advantages relate to the decentralised development model. Some relate to the freedoms and rights which the open source licences give the users of open source software.

Maybe the most important freedom which a user of open source software gets is the right always to choose a supplier or vendor freely. All open source licences give the user (the licensee) access to the source code of the software and the right to make changes therein. The user may either do it himself, or assign it to a third party.

This means quite specifically and at a basic practical level that, when a solution based on open source software has been delivered to a company, it is up to the customer to let people other than the original supplier manage the support, maintenance and development of the solution delivered. The customer may of course choose himself to take care of these tasks. This is in distinct contrast to solutions based on closed source software, where no changes can be made, unless allowed by the software suppliers, who have the IP rights to the solution delivered.

This freedom from dependency on the supplier in open source software is a great advantage to the customer. It is, however, not always certain that there actually are any suppliers of services or solutions apart from the original supplier. But, all things being equal, such alternatives will exist if there is a market for supply of (for instance) support and maintenance solutions. At any rate, there are no obstacles with regard to licence or other legal matters.

A good example of how this freedom from dependency is to the customers’ advantage is found within the Linux world. As we all know, Linux is an extremely well-developed operating system which is spread widely in large and small companies. There are multiple solutions based on Linux, and the number of companies and programmers who know about Linux and are experienced with it is so large that there is no actual risk that Linux will lose its importance and forward-looking nature, at least not the way the future appears at present.

Linux is licensed under the GNU General Public License (GPL version 2) which is a so-called open source licence with copyleft. This means very simply that everyone has the right to make changes to the Linux code, but is at the same time obliged to release these changes under the same GPL version 2.0, if they choose to distribute copies of these modifications to, for instance, customers.

Based on the great popularity of Linux, a large number of so-called Linux distributors have emerged. Among these are Novells SUSE Linux Enterprise Server, Red Hat Enterprise Linux, Ubuntu and CentOS. These Linux distributors make good money by delivering services to customers in connection with the “bare” Linux code.

GPL version 2 gives the user of Linux a great many significant user rights but, on the other hand, the licence also makes it clear that the licensors, i.e. the companies and programmers who have produced the Linux code, do not provide any guarantees as to whether the code actually works. With all the freedoms you get as a licensee under an open source licence without paying anything, it is only reasonable not to expect the usual guarantees. If you, as a company, request such guarantees, you will have to enter into an agreement with a supplier thereof.

Some of the Linux distributors in question offer such agreements, in which they may offer various types of support, maintenance in the form of correcting errors (patches), making adjustments, development, etc. Frequently they also offer to certify that the code does not violate third party copyrights, or to defend against a patent claim from a third party.

Due to the copyleft provision of the GPL, the Linux distributors are obliged to release all their modifications of the Linux code to the customers, thus that the Linux core hereby is constantly improved, updated and developed and thus remains “open”.

Seen from the customer’s point of view, the beautiful thing about this arrangement is that, particularly in connection with a Linux code which as mentioned is very popular, there will always be keen competition about delivering the best possible associated services at the lowest possible price. Hence from the supplier’s point of view, we are dealing with an extremely competitive market when compared to the support and maintenance based on closed source systems; in this case, the owner of the code, (i.e. the system to be supported and maintained) will always have a monopolistic position which can theoretically be used to make supernormal profits from the customer.

Sometimes the competition even gets so keen that even those companies which traditionally are considered as the essence of successful open source companies may feel so pressurised that they seem to forget that a fundamental condition in connection with an open source model is precisely the customer’s independence from the vendor. Within the last year there has been an example where Red Hat, one of the most important players within Linux distributions – in the light of Novell, who have entered the market and apparently tried to convince customers that Red Hat has entered into agreements with them about the support and maintenance of Red Hat products – has attempted to persuade customers, that they do not in fact enjoy vendor independence and thus is limited when considering to change to a competitor. (See Novell slapped for impersonating Red Hat)

Reportedly, Novell is now offering all Red Hat’s customers a deal to take over support and maintenance on the same terms as Red Hat provide, however at a significantly reduced price. I emphasise that I neither can nor will decide on whether the two competing services have the same value and what the contents thereof might be. I have no knowledge of this and no basis on which to comment. To me it is only important to emphasise that the fact that there are two competitors who apparently deliver the same service competing keenly on price is exactly an example of how the open source model has great advantages to the customers.

It is also important to emphasise that there are no open source licensing or other legal obstacles to competitors offering such a head-on competing service. Firstly, it is quite clear, and one of the basic terms of the GPL, that a supplier of services in connection with Linux cannot request the customer to stop using either the original Linux code or the supplier’s modifications, if the customer chooses another supplier. Such a demand would clearly be against the basic terms of GPL. It is obvious that the original supplier may terminate his services, if the agreement between him and the customer gives rise hereto, but the right to use the Linux code with modifications under the GPL cannot be budged an inch.

As a clear starting point, the fact that, under the GPL or other open source licences, you get the right to use software code gives you no right at all to use trademarks, which the supplier holds. A supplier of services in connection with Linux can thus, if the agreement between the customer and the supplier terminates, demand that the customer no longer uses the supplier’s trademarks.

However, in my opinion it is clear that the supplier cannot prevent the use of the supplier’s trademarks, if these are incorporated in the Linux code and thus are “used” in connection with the customer’s continued use of the Linux code with its modifications. If the supplier for example tries to circumvent and limit the freedoms which are a decisive part of the GPL by putting trademark-related legal obstacles in the customer’s way because of its continued use of the code, this could be considered as a violation on the supplier’s part of the GPL with regard to the original Linux code.

On the contrary, you could argue that it will be a violation of the way the legal principles of general marketing are expressed (in connection with the Danish Marketing Practices Act, section 1 about fair trading practices) if you, as a supplier in your communications with customers, try to make them believe that they will no longer have the right to use the Linux code with modifications, if they change supplier.

If in this way you try to give the customers the impression that they are obliged to “reinstall” the Linux installations which might be included in the service and maintenance agreements with the supplier, you might in my opinion argue that such practice is contrary to fair trading practices. This is motivated by the fact that you mislead the customers about the unconditional rights which they have in accordance with the GPL. The customer’s right to continue to use the Linux code is clearly secured in this.

The purpose of this blogpost is primarily to put emphasis on the vendor independence as being a very significant principle within open source solutions, and as one of the commercial advantages which may carry most weight, when a customer evaluates the cost and benefits of an open source solution. By the example mentioned above about tough competition in connection with delivery of and support to Linux, I believe that it has also been established in practice that vendor independence leads to competition which is clearly to the customer’s advantage.

(Full disclosure: I act as a lawyer for Liga Distribution ApS, which is selling support and maintenance delivered by Novell to Red Hat Enterprise Linux (RHEL) in the Danish market. Even though I of course have a bias towards my client, the above entry is not a special pleading on behalf my client but based on my own overall views on how the GPL should be understood, and how vendor independence  is crucial within open source.)

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