Copyleft in the Clouds

Free and Open Source Software: Policy, Law and Practice, edited by Noam Shemtov & Ian Walden (OUP, 2013), Forthcoming

Posted: 11 May 2013 Last revised: 8 Dec 2013

See all articles by Jakub Mencl

Jakub Mencl

University of Economics in Prague

W. Kuan Hon

Imperial College London

Date Written: May 10, 2013


(A shorter version of this paper will appear in a forthcoming book to be published around Nov 2013; when the book is published this working version will be taken down.)

The ‘ASP loophole’, or ‘SaaS loophole’, enables service providers to install modified open source software in the cloud, where it can be used by their customers or others, without having to share the code for their modifications. This is because the providers are not distributing the modified software, but allowing others to run it. Several attempts have been made to produces open source licences that close this loophole, notably the Affero General Public Licence (AGPL), but, as this paper shows, none of them have succeeded completely. More importantly, licences explicitly addressing this issue are much less popular amongst software developers than other copyleft licences, namely GPLv2 and GPLv3.

Some FOSS community members, including those who had previously campaigned for closing this loophole, have expressed the opinion that closing the loophole may adversely impact adoption of FOSS, especially by enterprises. As FOSS underlies many cloud implementations, arguably it was the very existence of this loophole that contributed to the success of FOSS in the cloud. The cloud poses other important challenges to users’ freedom, such as data portability. Also, open standards, which would allow developers to create software and services compatible and interoperable with existing offerings, are lacking or not yet widely adopted. Perhaps the attention of the FOSS community will switch from attempting to close the ASP loophole to addressing these other challenges.

Keywords: cloud, cloud computing, open source, copyleft, GPL, Affero

JEL Classification: K2, K11, O34

Suggested Citation

Mencl, Jakub and Hon, W. Kuan, Copyleft in the Clouds (May 10, 2013). Free and Open Source Software: Policy, Law and Practice, edited by Noam Shemtov & Ian Walden (OUP, 2013), Forthcoming, Available at SSRN:

Jakub Mencl

University of Economics in Prague ( email )

nam. W.Churchilla 4
Prague, 13067
Czech Republic

W. Kuan Hon (Contact Author)

Imperial College London ( email )

South Kensington Campus
Exhibition Road
London, Greater London SW7 2AZ
United Kingdom

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