A Brief History of Open Source Software, Part 3: The FOSS Environment Today

In its simplest form, FOSS development requires almost no traditional economic, physical or management support. All that is needed is a place to host code in a manner that allows multiple developers to collaborate on its further development. As FOSS has become more commercially valuable and widely incorporated into vendor and customer strategic plans, however, additional layers of services and structures have evolved to allow FOSS development to become more efficient and robust and the user experience even more productive. These include training, a growing certification testing network, a variety of tools to assist in legal compliance matters, and a network of hosting entities providing a wide range of supporting services and frameworks.

Linux Penguin Tux

The development of these tools has been an important factor in allowing the commercial marketplace to rapidly evolve from a closed, proprietary world to one heavily based on OSS.

The principal components of that ecosystem include the following:

Foundations and Projects: At the top of the pyramid are the “umbrella” organizations that host large numbers of independent projects.

The Linux Foundation. The most prolific host as of this writing is The Linux Foundation, which was launched in 2000 as the Open Source Development Labs (OSDL), with the mission to “accelerate the deployment of Linux for enterprise computing.”[i] In the years that followed, it merged with The Free Standards Group, changed its name, and broadened its mission to “building sustainable ecosystems around open source projects to accelerate technology development and industry adoption.” Today, it hosts over two hundred FSS projects, some of which have become mini-umbrella organizations in their own right, forming or accepting additional projects within the same discipline, such as blockchain technology (Hyperledger),[ii] cloud computing and containerization (Cloud Native Computing Foundation),[iii] Javascript (JS Foundation),[iv] networking (LF Networking),[v] and virtualization (OPNFV).[vi] Somewhat counterintuitively, The LF does not directly host Linux kernel development, which commenced more than a decade before the founding of the OSDL and continues independent of it today. Rather, it provides a variety of supporting functions, from travel budgets to training to the development of legal compliance tools and much more in order to “preserve, promote and protect” Linux and other open source software.[vii]

The LF is currently unique among umbrella organizations in the range of support it can provide, from organizing meetings on five continents to creating and supporting training programs to hiring dedicate staff to assist  individual projects. Hosted projects may take advantage of few or all of these capabilities. Projects that are very active (in ways in addition to code development) typically have multi-tier corporate membership structures with dues varying by membership tier and size of company, much like standards development consortia. Projects focused more narrowly on code development may have no corporate members or dues at all. In all cases, technical development occurs independent of any such membership considerations. Anyone can contribute code and rise up through project ranks on a meritocratic basis, regardless of whether they work for a formal member of the hosted project.[viii]

More recently, the LF has created an automated software platform to facilitate the rapid setup and efficient hosting of projects. The platform provides a complete suite of “click to accept” legal documents and associated tools to facilitate the development, vetting and legal documentation of FOSS. In December of 2018, the LF took over hosting the Joint Development Foundation,[ix] a similarly light weight platform created to facilitate the collaborative development of FOSS and open standards.

Apache Software Foundation: The Apache Software Foundation (ASF), incorporated in 1999, is also financially supported by corporate members.[x] Code development is conducted by individuals who need not be affiliated with a member. Some of its projects operate in a hierarchy, and the ASF supports an “incubator” process that permits nascent projects to mature into efforts eligible to be given full status.

The original mission of the Apache Foundation was to support the development of the LAMP stack. Over time, the ASF accepted many additional projects working in diverse areas of technology, providing a legal and technical framework in which to conduct their activities. Unlike some other umbrella organizations, hosted projects are expected to license their code under the Apache OSS license and to observe a variety of other rules and practices referred to as “the Apache Way.”[xi] It requires each contributor to sign a formal Contribution Agreement, a practice which is not currently common across other projects.

As of its 18th anniversary, ASF hosted over 350 projects and had more than 620 members.[xii]

Eclipse Foundation: The Eclipse Foundation was launched in late 2001 by IBM with the support of multiple partners, including Red Hat and Linux distribution vendor SuSE.[xiii] In 2004, IBM surrendered certain earlier-reserved rights, and EF’s influence began to grow more quickly.[xiv] Its original purpose was to host the creation of open source software development tools, based upon a platform that IBM had developed and made available as open source for that purpose. Like the ASF, it has a hierarchical project structure. As of this writing, it has over 275 members and hosts over 350 projects.[xv] It provides roughly the same types of support to its hosted projects as does the ASF.

Stand Alone Incorporated Foundations. Until recently, many new OSS projects chose to incorporate themselves, often in the United States, but also in Europe, as either public charities or trade associations led by elected or self-perpetuating boards of directors. While this practice continues, new projects supported by corporate members have increasingly approached an existing umbrella organization to request hosting in order to decrease upfront and ongoing legal and other costs. Such organizations may have significant corporate funding, when they are formed to develop commercially strategic software. When they are more narrowly focused on code development, they typically have low budgets derived primarily from donations by individual developers and other supporters.

Unincorporated Projects. The overwhelming number of FOSS projects have no legal structure at all, but exist as no more than a code base and a discussion Wiki.

Standards Setting Organizations (SSOs). Increasingly, traditional standards developers and their modern consortium counterparts are developing FOSS in one of several use cases:

  • Engineers in SSO working groups will often conclude that it makes more sense to write code capable of providing some of the functions addressed by a standard rather than describing those capabilities in traditional text. In some cases, the descriptive text is provided as well, giving an implementer of the standard the choice of using the code provided in the standard, or writing its own software in compliance with the descriptive text.
  • An SSO working group will sometimes decide to develop a reference implementation of the entire standard.
  • The SSO may commission a working group to develop FOSS independent of a standard.
  • The SSO may acquire and relicense, or a working group may develop, test suites or other software useful to the achievement of the SSO’s mission. Such software may be licensed under either a lightweight commercial license or under a FOSS license.

Because traditional SSO intellectual property rights (IPR) policies usually include terms that are incompatible with FOSS licensing, SSOs that go down this path must either first amend their IPR policies, or except those activities from the policy.

Harmonizing SSO IPR policies with FOSS development and licensing is a rapidly evolving process, with multiple approaches being considered across many SSOs. It will likely be some time before these experiments gel into widely accepted best practices.

Source Code Repositories: Global collaboration on the development of FOSS can be a remarkably inexpensive and efficient process, requiring almost no supporting infrastructure at all, as was demonstrated by the rapid success of the Linux kernel project, which was almost accidentally launched by Linus Torvalds in 1991. Given the plummeting cost of server space, the proven ability of highly distributed development teams to form and work together, and the viral way in which IT information spreads on the Web, the only (but substantial) challenge to launching a new project today is attracting and holding the interest of additional volunteer participants.

FOSS development hosting is provided by a number of companies referred to as source code repositories which provide not only server space, but a variety of other services as well, such as version control, development tools, legal contribution agreement forms, the opportunity to designate a distribution license, and a wiki-based communication platform, all of which are made available for free (additional services are usually available for a fee). SourceForge, launched in late 1999, was an early leader; as of early 2009, it reported over 2,000,000 registered users and more than 230,000 active (and inactive) OSS projects. Over time, however, it ceded dominance to GitHub, which is today the market leader by several orders of magnitude, as measured by hosted libraries.[xvi] As of this writing, GitHub hosts more than one hundred million such projects. These projects range from one-time code contributions by a single developer to code bases supported by vibrant, global developer communities.[xvii]

OSS vendors: While the OSS development model has not often provided the golden goose that venture capital investors briefly hoped it would, there have been some solid investment wins, including MySQL, a popular relational database management system owned and sponsored by a Swedish company, MySQL AB. MySQL was acquired by Sun Microsystems for approximately $1 billion in February 2008. When Microsoft acquired GitHub in October of 2018, it paid $7.4 billion. And when IBM purchased RedHat, the distributor of the most popular general purpose Linux distribution, it paid $34 billion – the largest amount IBM had ever paid to acquire another company.

For-profit corporations reap great commercial value from OSS in other ways, and in consequence provide an enormous amount of support for OSS, not only through direct monetary contributions to projects and supporting institutions (such as the ASF, EF and LF), but by allowing (or directing) their employees to participate in FOSS projects, which in turn redounds to the companies’ own benefit in a variety of ways (e.g., by gaining first-hand familiarity with or influencing code evolution as it happens and future direction as it is decided).

Promotion, support and protection: An extremely varied mix of non-profit entities has been founded to support, promote, and protect FOSS.

Two organizations foundational to the history and existence of the FOSS ecosystem are the Free Software Foundation (FSF)[xviii] and the Open Source Initiative (OSI).[xix] The former was created by Richard Stallman to promote the Free Software Definition and support the GNU Project. Later, it managed the creation and evolution of the GPL and other free software licenses. The OSI was formed in part as a delayed reaction to FSF, and is principally known today as the custodian of the Open Source Definition and the arbiter of which licenses are deemed to be compliant with that definition, and therefore to be added to the list of approved OSS licenses it hosts.

Other important organizations have been created with corporate sponsorship to either protect, or to demonstrate the determination to protect, FOSS from perceived enemies. The formation of such well-funded entities was important in the early days of the commercialization of Linux, when a company called SCO brought infringement suits against a number of large corporations then using Linux distributions. One such organization was OSDL (now the LF), which included the creation of a multi-million dollar legal defense fund in its core activities. That fund was intended to reassure FOSS developers that someone else would fund their legal defense should they be sued for inadvertent infringement of a proprietary company’s patents. When SCO later went bankrupt, and as open source software became more universally accepted, including by those companies that had originally perceived it to be a threat, the level of developer concern abated.

Patent concerns did not, however, completely disappear, due to the proliferation of “non-practicing entities” – less charitably referred to as patent “trolls.” These entities do not manufacture and sell products. Instead, they develop and patent technology — or simply purchase patents — for the purpose of demanding the payment of patent royalties from those companies that do produce products or provide services that infringe the patents.

A for-profit entity formed exclusively for protective purposes is the Open Invention Network,[xx] established in 2005 by IBM, Novell, Phillips, Red Hat and Sony with a very substantial initial capitalization in order to fund the purchase of patents that might otherwise be asserted against Linux or a variety of other important, Linux-related OSS software. These patents can then be asserted defensively by member OSS users against any companies that might allege that OSS programs they use infringe the third party’s patents. OIN seeks to increase the scope of its net of protection by recruiting additional members, and by entering into cross licenses with non-member companies under terms that allow all members and cross-licensees to use the growing pool of owned and licensed patents in the event that they are sued. As of this writing, over 60,000 patents are part of the OIN “patent nonaggression” network.

Another very active legal organization is the Software Freedom Law Center,[xxi] which has more of the character, and engages in activities more similar to, a legal aid clinic. The SFLC focuses to a much greater degree on the needs of the individual community developer and of FOSS projects of any size, and provides free legal services to its non-profit clients. It also provides helpful publications on FOSS topics, such as FOSS development best practices, and represents FOSS projects in asserting the GPL against commercial company GPL licensees that may be violating its terms.

Summary (and a Look into the Future)

The development of the FOSS phenomenon has been unique in a variety of ways, both social and legal, economic and political. Today, the same approach to open and collaborative development of resources has been extended to diverse other disciplines, leading to the coining of multiple new usages, including open hardware, open data, open science, and open pharma. This expansive process can be expected to continue as traditionally industrial, nationally-based economies complete their transition into a more unitary, globally interconnected, technology-based economy and society. If this is the case, then the careful study of the success and failures of FOSS as it has developed to date, and the close observation of how it evolves in the future, will be particularly instructive.

But in either case, there can be little doubt that FOSS is here to stay, or that the commercial significance of software developed within the FOSS process will continue to grow. What is less certain is exactly how the FOSS political, social and technical phenomenon will continue to evolve in the years to come. Some of the more interesting questions remaining to be answered include the following:

  • Political evolution: Will the revolutionary zeal of Richard Stallman and other free software supporters sustain, or, as with so many social and political movements of the past, will it dissipate as younger developers, accustomed to the ready availability of source code, begin to take FOSS for granted? With the now-enthusiastic embrace of FOSS by Microsoft, the free software movement has lost its common enemy, and with that loss has come an ebbing of energy and the lack of a rallying point. Similarly, the marketplace has settled on the use of a small number of licenses, and those licenses have now been stable for many years. With stability has come a decrease in interest in the legal niceties of FOSS licensing and, perhaps, in the significance of the values that these licenses instantiate as well.
  • Developer leverage: Today, the ability of software engineers from around the world to collaborate in the development of software of great commercial value has given them unprecedented power and independence over the direction of their efforts, relative to the multinational corporations that increasingly rely upon OSS projects to advance their own fortunes. This dependence by corporations on forces beyond their immediate control runs counter to their usual risk-avoidance goals and strategies. Will the unprecedented influence currently enjoyed by collaborative pools of individual software engineers (“labor”) be maintained, or will the traditional advantages of corporations (“management”) find a way to reassert themselves over time, resulting in the “capture” of the OSS process? And if this happens, will it result in a “lose/lose” scenario, killing the creativity and energy that power the OSS phenomenon?
  • Legal developments: Some of the most commonly employed FOSS licenses (e.g., the GPL 2.0 and GPL 3.0) have innovative features that have as yet rarely been interpreted in court. Will they be upheld in court, and if not, how will the OSS community revise these essential tools?
  • Government uptake and endorsement: Many governments (e.g., in the European Union) have come to favor FOSS for social, economic and policy reasons. Will FOSS become increasingly preferred for government procurement, and if so, what impact will the exercise of such substantial buying power have on software development and commercialization practices generally?
  • Best practices: While the best FOSS projects are extremely successful, they often depend on the skills and leadership of individuals. At the same time, the legal and economic status (e.g., unincorporated, incorporated, sponsored, and so on) of a given project can be as much the result of accident as design. Given the increasing importance of FOSS software and the likelihood that such programs will remain useful over long periods of time, the stability and success of FOSS projects will become increasingly important. Will best practices of formation, governance, management and distribution be compiled, and if compiled, broadly implemented?
  • Support: Will questions such as these be answered as the result of haphazard evolution, or through thoughtful and respectful support from affected stakeholders, and if so, by which stakeholders and in what venues?
  • Influence: As noted, the principles underlying OSS have broad applicability to other areas, including data, hardware and drugs. At the same time, developing collaborative techniques in those areas may provide lessons for OSS development as well. How will these concurrent forces continue to affect, and be informed by, each other?
  • Standards/FOSS Interaction: The terms of the IPR policies of some standards setting organizations conflict with those of some or all FOSS licenses, making it difficult to implement the standards of those SSOs in FOSS, resulting in tensions between the two communities. Initially, some FOSS developers were openly hostile to SSOs, having little sympathy for the modes of balancing IPRs that have evolved in SSOs over many decades or the concerns they address. Instead, they have demanded that SSOs change their rules. Some developers have stated that they believe FOSS can eliminate the need for standards entirely. In the last few years, scores of SSOs have begun updating their IPR policies to permit them to not only make it easier for their standards to be implemented in FOSS, but to host the development of FOSS as well. Leaders in some FOSS projects are also concluding that application programming interface standards and other specifications are needed to make FOSS usage in the enterprise more efficient, and are reaching out to SSOs to create the standards they believe are necessary. Whether this nascent rapprochement will spread and sustain or falter remains to be seen.
  • Where will FOSS be developed: Currently, there are far more SSOs adapting to develop FOSS than there are FOSS projects acquiring competence in standards development. As SSOs become more adept at not only FOSS development, but developing related FOSS and standards in parallel, and as FOSS architectures mature in many industries, will corporations begin to shift FOSS development away from FOSS projects and into SSOs, where they can more efficiently develop hybrid collaborative solutions incorporating both standards and FOSS?
  • Patent law: The ability in the United States – where much software is developed and used – to patent inventions implemented in software has changed several times over the last twenty-five years. Today, there is great unhappiness among a range of stakeholders over what are perceived to be (at best) flaws in the U.S. patent system. These have ranged over time from the grant of overly broad patents, to the costs and variability in outcome of lawsuits (often depending on which Federal district court a plaintiff chooses as the venue in which to bring its case). Some go farther, and believe that there is no justification for applying patent protection to software inventions at all. Will the courts in the U.S. continue to narrow the gate through which successful software patents can be granted and successfully enforced, or perhaps overrule their own earlier holdings that some types of software can be patented at all, as recently occurred? If so, what will the impact be upon the software development industry, and how will it affect the future of FOSS?

The answers to questions such as these will be interesting indeed. If they are the right responses, they will have a substantial and positive impact on the global economy. Needless to say, it will be in the best interests of all if individual developers, corporations, and governments around the world are aware of the mutual benefits to be gained from OSS, and work together to nurture the unique and revolutionary process that has already produced such useful — and perhaps surprising — results.

Selective Bibliography:

Core Reading: While there are many academic and popular articles that relate to FOSS, the first-hand literature relating to the theory, origins, and significance of FOSS, and especially of free software, is more limited. The following list is of the latter variety, and includes a number of works that anyone should consider “must reads” to gain insight into OSS from an insider’s point of view.

DiBona, Stone, and Cooper, Open Sources 2.0: The Continuing Evolution (O’Reilly Media 2005)

Gay (ed.), Free Software, Free Society: Selected Essays of Richard M. Stallman (Free Software Foundation 2002)

Moody, Glyn, Rebel Code (Basic Books 2001)

Raymond, The Cathedral & the Bazaar: Musings on Linux and Open Source by an Accidental Revolutionary (O’Reilly Media 2001)

Rosen, Open Source Licensing: Software Freedom and Intellectual Property Law(Prentice Hall 2004)

Salus, Peter H., The Daemon, the Gnu and the Penguin (Reed Media 2008)

Also consider:

Lessig, Free Culture: The Nature and Future of Creativity (Penguin 2005)

Wheeler, David, Why Open Source Software / Free Software (OSS/FS, FOSS, or OSS)? Look at the Numbers! (Revised April 16, 2007)


[i] The Linux Foundation’s website can be found at: https://www.linuxfoundation.org/

[ii] Hyplerledger’s website can be found at: https://www.hyperledger.org/

[iii] Cloud Native Computing Foundation’s website can be found at: https://www.cncf.io/

[iv] JS Foundation’s website can be found at: https://js.foundation/

[v] LF Networking’s website can be found at: https://www.lfnetworking.org/

[vi] OPNFV’s website can be found at: https://www.opnfv.org/

[vii] Short descriptions of, and links to, all LF-hosted projects can be found here: https://www.linuxfoundation.org/projects/directory/

[viii] The LF has been growing rapidly in recent years. Currently with over 1,000 members, it enrolled an average of more than one new member a day in 2018.

[ix] Joint Development Foundation’s website can be found at: http://www.jointdevelopment.org/

[x] The Apache Software Foundation website can be found at: https://www.apache.org/

[xi] The Apache Way is self-described somewhat mystically as “a living, breathing interpretation of one’s experience with our community-led development process,” and is further described at: https://www.apache.org/theapacheway/

[xii] See the press release, The Apache® Software Foundation Announces 18 Years of Open Source Leadership, at https://www.globenewswire.com/news-release/2017/03/28/945724/0/en/The-Apache-Software-Foundation-Announces-18-Years-of-Open-Source-Leadership.html

[xiii] Eclipse Foundation Forms to Deliver New Era Application Development Tools, Press Release (November 21, 2001), at: http://www.eclipse.org/org/pr.html

[xiv] Eclipse Forms Independent Organization, Press Release (February 4, 2004), at: http://www.eclipse.org/org/press-release/feb2004foundationpr.html

[xv] See Wikipedia, at https://en.wikipedia.org/wiki/Eclipse_Foundation.

[xvi] GitHub’s website can be found at: https://github.com/

[xvii] GitHub was acquired by Microsoft on October 26, 2018 for $7.5 billion, an event that would have been inconceivable a decade before, when Microsoft CEO Steve Ballmer famously labeled FOSS a “cancer.” See Microsoft Acquires GitHub! What – too soon? at http://www.consortiuminfo.org/standardsblog/articles/microsoft-acquires-github-what-too-soon

[xviii] The Free Software Foundation website can be found at: https://www.fsf.org/

[xix] The Open Source Initiative website can be found at: https://opensource.org/

[xx] OIN’s website can be found at: https://www.openinventionnetwork.com/

[xxi] The SFLC website can be found at: http://www.softwarefreedom.org/

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