The Fallacy of OSS Discrimination by FRAND Licensing: An Empirical Analysis

27 Pages Posted: 22 Feb 2011  

Jay P. Kesan

University of Illinois College of Law

Date Written: February 22, 2011

Abstract

This article attempts to explain the interplay between open source software licensing and FRAND licensing in both the development of standards and with respect to firms seeking to use both OSS and proprietary software. Tension has risen in particular in the standards context, where those who create and distribute code under Open Source Software licenses claim that they are disadvantaged by standards where patent owners are allowed to seek royalties on patents that apply to the standard. The charge that "FRAND discriminates against OSS" is a popular belief among the OSS community. Many believe that FRAND is fundamentally incompatible with OSS viewing the complete absence of royalties as the only compatible option.

An empirical examination of all OSS licenses approved by the OSI reveals that there is no inherent conflict between OSS and FRAND. Of the eight most popular OSS licenses, only the GPL and the Lesser GPL license conflict with the FRAND model. And only a small fraction of the remaining 59 OSI-approved licenses have any conflict with FRAND. Indeed, the vast majority of OSS licenses are fully compatible with FRAND, with regard to both monetary and non-monetary terms.

Additionally, as a policy matter, it is in the best interests of consumers and the ICT ecosystem for different methods of software production to be allowed to compete and flourish in the marketplace through the creation of technology standards and products.

Suggested Citation

Kesan, Jay P., The Fallacy of OSS Discrimination by FRAND Licensing: An Empirical Analysis (February 22, 2011). Illinois Public Law Research Paper No. 10-14. Available at SSRN: https://ssrn.com/abstract=1767083 or http://dx.doi.org/10.2139/ssrn.1767083

Jay P. Kesan (Contact Author)

University of Illinois College of Law ( email )

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