Openly Shared
The definition of “open source” in the most recent version (article 2(48)) of the Cyber Resilience Act (CRA) goes beyond the Open Source Definition (OSD) managed by OSI. It says:
“Free and open-source software is understood as software the source code of which is openly shared and the license of which provides for all rights to make it freely accessible, usable, modifiable and redistributable.”
The addition of “openly shared” was a considered and intentional addition by the co-legislators – they even checked with community members that it did not cause unintended effects before adding it. While open source communities all “openly share” the source code of their projects, the same is not true of some companies, especially those with “open core” business models.
For historical reasons, it is not a requirement either of the OSD or of the FSF’s Free Software Definition (FSD) and the most popular open source licenses do not require it. Notably, the GPL does not insist that source code be made public – only that those receiving the binaries must be able to request the corresponding source code and enjoy it however they wish (including making it public).
For most open source projects and their uses, the CRA’s extra requirement will make no difference. But it complicates matters for companies that either restrict source availability to paying customers (such as Red Hat) or make little distinction between available and non-available source (such as ForgeRock) or withhold source to certain premium elements.
A similar construct{1} is used in the AI Act (recital 102) and I anticipate this trend will continue through other future legislation. Personally I welcome this additional impetus to openness.
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{1} The mention in the AI Act has a different character to that in the CRA. In the AI Act it is more narrative, restricted to a recital and is a subset of attributes of the license. In this form it actually refers to virtually no OSI-approved licenses. In the CRA the wording part of the formal definition in an Article, so much more impactful, and adds an additional requirement over the basic requirements of licensing.