Deciding whether to use open source licensing requires an understanding of its freedom and restrictions as well as the community created by open source software developers. Depending upon how you look at it, open source licensing is either a method to create, improve and distribute software or a serious social statement on the far reaching protection of current copyright law.
1. What is the 'source' in open source licensing?
The 'source' in open source licensing refers to 'source code'. Source code contains computer instructions in a format that can be used and changed by a computer programmer. From the source code, the computer compiles the object code which actually runs the computer. A computer programmer cannot modify a computer program without the source code.
2. How did "open source" develop?
The concept of open source software began with Richard M. Stallman in 1983. It all started when his printer jammed. He wanted to work out a patch to fix the problem. He needed the source code to do it but could not obtain it. Xerox considered the source code proprietary. No matter how he tried, Stallman could not get access to the code he needed to fix the problem. According to Stallman, this was the turning point. Stallman quit his job and developed a complete software system called GNU that would be compatible with the UNIX computer operating system. Carver, Part I: Law and Technology: IV. Business Law: A. Notes, 20 BERKELEY TECH. L.J. 443, 446 (2005).
Stallman permitted others to use his source code under a "General Public License" or GPL. As Stallman's concept spread, the proponents of Stallman's licensing model realized that describing the availability of the source code as "free" hampered the movement. Later, a group of developers met and coined the phrase "open source" instead. Id, 447.
Since then, associations have evolved to promote the open source movement such as the Open Source Initiative, the Free Software Foundation and Creative Commons. The associations differentiate their concept of "free software". Free software supposes that no payment is required to use the software. Open source licensors, can and sometimes do, require the payment of license fees. The concept of "free software" in the open source context relates more to free speech than to "free beer". Free Software Foundation, www.gnu.org/philosophy/free-sw.html, 2008.
According to the Free Software Foundation, open source insures four kinds of freedoms:
The creation of free software that could be improved and enhanced by others resulted in the creation of a new type of license, the open source license. The open source license uses copyright law and allows software developers unfettered use of the skills of their peers. The open source license agreement protects the freedoms as long as the licensee does nothing wrong.
3. Why has open source licensing become a tool for collaborative software development?
Access to source code can speed the process of software development. Desirable or useful programs can be the foundation for further creativity and usefulness. If a developer has access to the work of another, the developer can get to the development goal faster. Open source makes the source code available to all potential users. Collaborative work thus becomes available on a large scale. Each developer builds upon the work of another.
The advantages of open source include peer review, cost savings, and standardization for common development. In some sectors, open source has also become a matter of social commentary. Many organizations encourage open source by providing resources for licensing. Stallman, the father of open source, believed that refusing to share source code was unethical and a violation of the "golden rule". Carver, at 446 (2005).
In some cases, the philosophy of open source attempts to ameliorate perceived over-reaching by current copyright law. The "copyleft" concept creates a series of contractual relationships where each member is bound by the senior license agreement. Each senior license agreement requires freedom to copy and change. Each user then redistributes the newly developed software with the same freedom to the subsequent users. Falkowski, Computer Law: An Innovation in Contract Drafting: Open Source, 4 MICH. BAR JNL 30, 31 (2002). Instead of putting the software in the public domain, copyleft licenses require licensees to redistribute the software, with or without changes, with the freedom to further copy and modify. Copyleft seeks to provide an incentive for other programmers to add to free software. Free Software Foundation, www.gnu.org/copyleft/copyleft.html, 2008.
4. How do open source licenses work?
A. Background
Despite the utopian impression of openness, most open source software licenses restrict use in some way. The strictures can vary depending upon the intent of the original developer. When using open source software as the basis for any type of further development, careful attention must be paid to the rights being licensed.
A model open source license has the following general concepts:
B. Basic Permissions in an Open Source License
The open source license gives wide range access to the source code. The unrestrictive open source license uses the unlimited access to source code as a means for furthering its policy.
Access to the source code must allow distribution. If some form of the product does not contain the source code, then the licensor must publicize where and how to obtain it. The programmer cannot deliberately block access to the source code or distribution. The source code must be accessible without the need of a translator.
The grant of license in a general copyright license restricts use based upon term and scope. The restrictive grant of a license in a general copyright license enables the copyright holder to protect against use by unknown parties. Typically, a general copyright license will only produce source code under limited circumstances. The license will grant a non-exclusive, non-transferable, royalty-free internal company license to use and copy the source code for limited purposes such as:
The open source license grants virtually unrestricted permission to modify and distribute modifications. The right to create unlimited derivatives functions at the center of the open source philosophy. An open source licensee must be able to create derived forms of the software or the "free software" scheme would be defeated. Therefore, open source licenses contain no confidentiality restrictions. The licensee is free to disseminate what otherwise might have been restricted by a confidentiality clause. By contrast, the general copyright license will not allow unrestricted permission to create derivative works. The general copyright license will contain clauses that protect the confidentiality of the source code or prohibit reverse engineering. A copyright licensor may also require product previews to insure that the license has not been exceeded.
The open source license does not restrict distribution of the derived form in any way. Distribution of source code occupies a unique presence in the open source license. The general copyright license rarely addresses distribution of the source code itself. The open source license has little concern with distribution of the ultimate product except as it relates to the furtherance of the general policies and parameters of the license itself. The open source license does not require monetary consideration. An open source license does not require payment of any royalties in order to use or modify the source code. Most open source licenses will allow subsequent licensees to charge for some portion of use. However, the licensor may restrict how and when the charges can occur. For instance, the licensee may charge for the modifications or for access to copies, but not for anything else. The availability of the source code without monetary compensation furthers the unrestricted development motive of the open source license.
A general copyright license depends upon the payment of monetary compensation in order to fulfill its purpose. The contractual relationship between the parties in a general copyright license usually depends upon the compensation scheme. The difference for the general copyright licensor rests in the motivation for allowing the licensee to use the source. In virtually all cases, the profit motive will drive the formation of the contractual relationship.
The open source license requires those who modify software to identify themselves and their modifications. Attribution treatment furthers the open source philosophy by acknowledging the communal aspect of software development. The open source licensee creates a product that mixes the source code with the ultimate product. Each open source licensee must identify themselves as well as the modifications they make in order to allow others to see the progress of software development. Attribution in a general copyright license means something different. The copyright owner normally does not allow distribution of the source code at all. Rather, the general licensee has access to the source code for a limited derivative purpose in order to create an ultimate product. The copyright owner generally uses attribution to insure that others know the original source of the work.
C. Basic Restrictions in an Open Source License
The open source license forbids discrimination against any person, groups or fields of endeavor in access and distribution. The anti-discrimination clauses protect the wide distribution philosophy of open source licensing. The open source licensor should not restrict access to the source code by groups of people or by industry.
The open source license will protect against the incursion of proprietary code components into the open source code or "contamination". Thus, the open source license may destroy the proprietary nature of "contaminating code". General copyright licenses may have the same type of restrictions. For instance, the general copyright licensor will want a warranty that the licensee will not include infringing code to seep into the licensed code. On its face, it appears that both types of licenses contain the same type of restrictions. However, the motivations for these protections stem from different philosophies. The open source licensor does not want to contaminate the stream of derivatives with restrictions. On the other hand, the general copyright licensor does not want to jeopardize the contractual relationship with exposure to infringement actions.
Open source licenses carry very few, if any warranties. Open source code is licensed "as is" without any representations or warranties. By contrast, the general copyright licensor will assure the licensee of the licensor's capacity to enter into the agreement. The different treatment arises from the different motivations behind the licenses. The open source license requires the "as is" model in order to further the unencumbered dissemination of the source code. The assurances of title and the capacity to enter into the license protect the integrity of the general license contractual relationship.
An open source licensee agrees to waive indemnification for infringement claims from the developer. This protects contributors of source code from future liability. Most general copyright licenses have the opposite treatment for possible infringement claims. As with warranty provisions, the difference between the two types of license agreements stems from the different motivations behind the agreements.
5. Pitfalls in Open Source Licensing A. Chain of title.
As discussed above, open source licenses prohibit contamination with proprietary source code. Once proprietary source code becomes included in open source code, tracing ownership and title becomes difficult. Thus, the owner of proprietary source code may face an unreasonable road block to proving title in an infringement action.
B. Enforcement - Standing to Sue
Generally, only the owner of a copyright has the standing to sue. What happens when each subsequent licensee becomes the owner of an improvement? This question remains unanswered.
C. Potential Liability for Intellectual Property Infringement.
The open source model creates multiple opportunities for contributors to introduce infringing code into the software. While the open source license requires attribution of changes, there is no way to insure that this will happen. Further, the open source model could make it difficult for a copyright owner to trace the origin of the infringement.
D. Who bears the risk of loss for copyright or patent infringement?
Licensees along the chain of derivatives face exposure to claims of copyright or patent infringement. Since most open source licenses contain a waiver of warranties and a waiver of indemnification, the licensee faces potential liability with little or no protection.
6. Conclusion
The choice to distribute software in the open source mode can be a boon for certain types of software development. Open source licensees can be a source of bug fixes and enhancements. However, when choosing open source as a licensing tool, the developer must weigh the advantages and disadvantages. The following variables help with this evaluation.
In the long run, choosing open source licensing can be directly tied to a freedom of choice rather than necessity.
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As Chair of Querrey & Harrow's Intellectual Property Practice Group, Chicago shareholder Beverly Berneman focuses her practice on protecting her client's Intellectual Property such as patents, copyrights, trademarks and trade secrets. The scope of her services encompasses a wide range of transactions involving Intellectual Property such as registration, licensing, mergers and acquisitions, and documentation related to financing the development of Intellectual Property Assets as well as litigation. She has extensive experience in conducting audits of Intellectual Property and developing Intellectual Property management programs for companies of all sizes and in various industries.
Ms. Berneman also is a member of the Bankruptcy and Creditor's Rights Group and has experience in bankruptcy and commercial transactions and litigation. Ms. Berneman is an adjunct professor at the John Marshall School of Law ("Bankruptcy and Secured Transactions in Intellectual Property") and Chicago-Kent College of Law ("Intellectual Property Management: Financing the Development of Intellectual Property Assets").
If you have questions regarding this article, or Querrey & Harrow's intellectual property practice, please contact Beverly at 312-540-7144, or via bberneman@querrey.com.
