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Open Source Licenses Primer August 17, 2011

Posted by Brandon in Tenet Forum - The Law.
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I want to begin this blog with a topic that sparked my interest in this webpage’s creation: open source software.  Open source is a concept which encourages creating and proliferating computer source code at no cost, in order to allow anyone to experiment with and modify the code.  Historically, copyrightable works were protected under the theory that profitability was found in scarcity and privatization. The open source movement has challenged that theory by showing that innovation can also exist through free dissemination, which can ultimately lead to collateral financial gain.  A great example is the Linux operating system, where companies such as Red Hat have emerged to provide technical support.

By disseminating the source code free of charge, more extensive feedback and advertising is available while keeping distribution costs at almost zero.  Further, the code could end up becoming a de facto standard for whatever function it serves if enough people become familiar with and rely on that software.  However, open source software presents complicated legal problems regarding copyright ownership, and therefore infringement.  To address these issues, open source developers release their code subject to licenses which retain ownership in the code and any derivative modifications.  While the enforceability of these licenses has yet to be directly challenged, it appears that end users are generally assenting to the terms.

Guidelines and Examples of Open Source Licenses

Open source code is always governed by a license, which makes the technology monetarily free to use so long as that user conforms to the terms of a license. Open source or public licenses are available in standard forms, such as the General Public License [GPL], Lesser General Public License [LGPL], Mozilla, MIT, Apache and BSD licenses, or an open source developer can draft his or her own terms. While the open source community is amorphous by nature, the Open Source Initiative [OSI], a non-profit with the aim of promoting awareness and the importance of open source, released a list of conditions which must exist in the license to conform to open source principles. 

To be considered open source software, OSI gives an open source definition that states that the technology must meet the following ten criteria: 1) Free redistribution, 2) Inclusion of source code, 3) Permit derivatives, or modifications to the work, 4) Maintain integrity of the source code, 5) No discrimination against persons or groups, 6) No discrimination against fields of endeavor, 7) Distribution of the license, 8. License must be specific to the product, 9) License must not restrict other software, and finally, 10) the license must be technology neutral.  While these criteria are only advisory and not enforceable, they help guide the analysis of open source licenses.

The standard form open source licenses range from being quite restrictive, meaning that the user must make the code and any modifications to it widely available, to being less restrictive, meaning that the user may retain more control and ownership over the modifications.  The most restrictive license is the GPL, which dictates that in addition to retaining the original copyright notice and disclaimer, the licensed “work” and any works “based on the program” must be disseminated at no cost.  Ostensibly, this would mean that source code from proprietary files which are statically or dynamically linked to the GPL’d code must be made freely available.  Linking in computer programming is the combining of object modules, which are compiled from source code, to form executables, and can be done either statically or dynamically.  Statically linking files physically combines the contents of the files and binds them into a new executable.  Dynamically linking files however only reference each other, and are only brought together when the executable is running.

Hence under the terms of the GPL, if GPL code in a run-time library were somehow dynamically linked to a proprietary program like Microsoft Word, for example, the entire Microsoft Word program arguably should be given away for free.  An FAQ produced by the Free Software Foundation states statically linked files are derivatives under the GPL, but the also considers a qualified scope of dynamically linked files to be within the GPL.  The FAQ states dynamically linked files that “make function calls to each other and share data structures” create a single program, and are thus derived from the GPL.  Further, the FAQ claims that dynamically linked files where “communication between them [are] limited to invoking the ‘main’ function of the plug-in” may be derivatives.  However, this restrictive of an interpretation of GPL where dynamically linked files are “infected” by the GPL, when GPL code is not reproduced, has drawn criticism and may not be legally enforceable.  See Van Lindberg, Intellectual Property and Open Source: A Practical Guide to Protecting Code (O’Reilly Media, 2008).

Less restrictive open source licenses include the Mozilla Public License and the LGPL.  Mozilla requires that modifications to the code become subject to the license, and the LGPL permits proprietary licensing of modifications if a suitable shared library mechanism is used for linking with the modified library.  The least restrictive, i.e. most permissive, licenses include the Apache, Revised BSD and MIT licenses, where all that is required to be performed is the retention of copyright notice attributing the original code authors, and in the case of the Apache license identifying modifications as your own.

Other Forms of Open Source

Most people who are familiar with the open source movement are aware of free and open source software, or FOSS. However, some developers have expanded the world of open source to hardware as well, known as OSHW. Open source hardware is a relatively new phenomenon and not widely discussed, and appears to use existing open source software licenses for distribution.

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