![]() Accordingly, the Commission asked for “flexible and effective interactions between standardization and open source communities” assuming that such flexible and effective interactions will “promote and accelerate the uptake of advanced technology development” (European Commission, 2017, p. The European Commission has recently mentioned the importance of standards for innovation and growth and also emphasized FOSS development as another driving factor for innovation (European Commission, 2017). 2 In fact, most commentators agree that FOSS projects need standards, and that standards need FOSS implementations, particularly in the context of the “Internet of Things” (Dapp & Bernauer, 2009). The narrative of how FRAND licensing models discriminate against FOSS licensing models is often supported by the general criticism of patent holdup or encouraged by the even more heated and emotional debate around the question of whether software should be patentable at all.Īs a policy matter, it should be noted that both SDOs and the FOSS community have contributed enormously to the technological achievements of the past decades (Kappos, 2017, p. However, another part of the debate seems to be rooted in politics or culture. Part of the concern can be addressed by analyzing the legal details of the different licensing regimes. More precisely, many critics focus on the absence of licensing royalties as one of the key criteria for the FOSS definition(s) and thereby claim that standards including FOSS components should be royalty-free as well. Some advocates and scholars have argued that the FOSS licensing model is incompatible with the Fair, Reasonable and Non-Discriminatory (FRAND) licensing model facilitated by Standard-Development Organizations (SDOs). While the Free and Open Source Software (FOSS) 1 development model has been tremendously successful in facilitating software innovation (Black Duck's & North Bridge's Survey, 2015), recent discussions in the context of standards have raised the question of whether Standard Essential Patents (SEPs) and especially the patent owner's interest in seeking royalties create a conflict with FOSS development. The article will begin with an overview of the history and context of FOSS licenses and FRAND-based licensing regimes, continue with a legal review of the actual language of prominent FOSS licenses, and provide further thoughts on future opportunities and challenges for the interaction between FOSS projects and standard processes, with a particular view on FOSS implementations of standards. The goal of this article is to provide an overview of the different licensing regimes, FOSS licenses and fair, reasonable, and non-discriminatory (FRAND)-based licenses, and to shed some light on the current debate by analyzing possible tensions between some of the most prominent FOSS licenses and their interaction with FRAND-based patent licenses. However, the increasing role of FOSS in the ICT sector has provoked the question of interplay and compatibility between FOSS and standardization processes. ![]() In the context of digital transformation, both standards and Free and Open Source Software (FOSS) can be seen as key to success for innovation.
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