The open source software (“OSS”) revolution affects most software applications. A 2015 survey found that 78% of the companies questioned ran their operations on OSS. [1] / Its expanded inclusion has resulted in great savings in time and money in the creation of software products.  However, when the creator of the OSS releases it, she often does so under a license expected to promote its open availability and use. In order to avoid risks of violating the creator’s licensed conditions, business owners and developers should know whether any OSS is present and under what terms it may be used.

Working with an intellectual property attorney familiar with the issues associated with open source software, developers and businesses can better manage their security, legal and operational risks by:

  • Establishing internal procedures to identify whether open source software is present.
  • Identifying which open source licenses may control the use of the OSS.
  • Looking into whether the licenses applying to different open source components in a software package are compatible.
  • Adopting tracking procedures to assure ongoing OSS licensing compliance.

The following answers some basic questions often asked by my clients when they know that OSS likely will be part of any software product they create or use.

What is Open Source Software (OSS)?

Open source software refers to software that is released to the general public by way of its source code, i.e., the list of commands that a computer compiles to produce an executable program. Such an approach grew out of a movement that encourages collaboration in the development, testing, and improvement of software products.

Most end users of software products only see the application in its object code format, meaning the version by which the computer has compiled the source code. But with access to the source code, the developer gets to look “under the hood” of the software product. With such open access to the source code, a programmer can use it as the building blocks and add-on components for a particular product, which results in the saving of both time and money in the production of the software product.

Is Open Source Software Free?

The use of open source software is “free” in the sense that the users are given access to its source code and therefore have the freedom to:

  • Run the program for any purpose;
  • Study and change it;
  • Redistribute the existing program;
  • Distribute copies of the user’s modified version.

However, in order for the programmer to take any such actions, she must comply with the requirements of the license under which the source code was released. The principal requirement is that the licensee releases the source code for the program, as well as for any modifications she made, to the general public free of charge under the same license the creator adopted at the time of the program’s original release.

Is Open Source Software Protected by Copyright?

Open source software is the kind of work that is protected by the U.S. Copyright Act, and copyright law world-wide. Therefore, while the developer may use, modify and share such software, because the software is copyright protected, such use is governed by the particular terms of the license under which the original developer released the software into the open source arena. Failure to comply with the requirements of such a license exposes not only the programmer but also the end user to claims of copyright infringement.

What Is an Open Source License?

To qualify as an open source license, it must comply with the Open Source definition [OS Definition], basically meaning that when a developer releases the OSS, the accompanying license must allow for the free use, modification and sharing of the software. To qualify as an open source license, it must be certified by the Open Source Initiative (OSI) [OSI], which is an organization dedicated to promoting the use of OSS in commercial projects.

What Is the GNU General Public License (GPL)?

  • The GNU/GPL was the first open source license. Since its introduction in 1989, other versions of that license have been released. The GPL licenses tend to focus on the open use of the covered software, but also require that further release of the modified software be under an appropriate General Public License. [2 GPLs]
  • Taken together, the various versions of the GPL represent the most popularly used licenses for the release of open source software.
  • A major requirement of the GPLs is that all software based on GPL licensed software must be released under the GPL.

What Are Some Other Popular Open Source Initiative Approved Licenses?

  • The MIT X license, is a permissive license with few restrictions on reuse of the software. [MIT License]
  • The Apache Version 2.0 license is also permissive, but it requires the licensee to retain the license’s copyright notice and disclaimer as to any warranties. [Apache License]

This blog has only covered the tip of the large and growing OSS iceberg. Keep in mind, under the Copyright Act [The Act], you do not have to knowingly intend to violate the rights of the copyright holder in order to be found liable for infringement. Subject to certain exceptions, Section 501 (a) of title 17 U.S. Code is interpreted to impose strict liability on anyone who violates any of the exclusive rights of a copyright owner. Therefore, because OSS is likely to be in most software programs, choosing “not to know” whether it is there and under what conditions it may be used is not a wise choice.

[1] / Reference from 2015 survey conducted by Black Duck Software and North Bridge [More Detail]