Look Before You Click: Why You Should Read Open Source Software Licenses

The proliferation of open source software has significantly changed the legal framework of the software development field.  Software developers who use open source software in their products should be aware of these issues and ensure that they comply with the requirements of open source licenses.  Inattention to open source licenses could cause developers to disclose their proprietary source code to the public or expose them to liability for copyright infringement.  Complying with open source licenses has become an important issue because courts will likely enforce the terms of the licenses.  In a landmark case for open source software licenses, the U.S. Court of Appeals for the Federal Circuit held that an open source software license was enforceable.  Jacobsen v. Katzer, 535 F.3d 1373, 1381-2 (Fed. Cir. 2008).  The court further held that violation of an open source license could constitute copyright infringement.  During the early years of open source software licensing, it was unclear if the licenses would be legally enforceable.  The Jacobsen case resolves this doubt.  In response to Jacobsen, software developers should exercise great care in using and complying with open source licenses.         

It is important to note that open source software is protected by copyright law.  The term “open source” is not synonymous with “public domain.”  A work that is in the public domain is not protected by copyright law, and any person may use the work without restriction. Open source software is not in the public domain, and use of the software is subject to the open source license applicable to the software.  With regard to copyright ownership, open source software is very similar to traditional, proprietary software.  Like proprietary software, open source software requires its users to comply with its licenses.  Unlike proprietary software, open source software licenses contain all 10 provisions required by the Open Source Initiative®.  In particular, three of these provisions cause open source software licenses to be profoundly different from proprietary licenses.  Pursuant to these provisions, developers may not restrict others from selling or giving away the software, must make the source code available to the public, and must allow the public to modify the software or make derivative works of the software.  In contrast, proprietary licenses usually restrict distribution of the software, do not provide the source code to the public, and prohibit derivative works.

Beyond the 10 required features of open source software, the terms of open source software licenses can vary widely.  Several dozen open source licenses are currently in use, with each having a distinct legal significance.  Prior to beginning a project with open source software, developers should thoroughly review the applicable license to verify that the license is appropriate for the project.  Developers must also comply with the terms of the licenses applicable to their projects.  Neglecting these matters could have disastrous consequences for the developer.  Use of the wrong type of license could cause the developer to unknowingly agree to disclose the source code of its proprietary software to the public, which could seriously jeopardize the developer’s value as a going concern.  This is because a commonly-used open source license applies the open source license to any program containing the open source software.  Thus, if a program includes the developer’s proprietary software and the open source software or its derivative, the developer would be obligated to provide the source code of the proprietary software to the public.  It is possible that the copyright owner or any other interested party could sue the software developer to compel disclosure.  Regardless of the type of license a developer uses, the developer could be subject to copyright infringement if the developer does not comply with the provisions of the license.  To illustrate, in the Jacobsen case referenced above, the open source license required the developer to place a prominent notice in each changed file stating how and when the developer changed the file.  The copyright owner of the open source software sued the developer for copyright infringement, alleging that developer did not include a description of how the files had been changed from the original source code.

In conclusion, software developers should carefully review the license of any open source software that they use to create a software program or incorporate into a software program.  Because of the complexity of open source licenses and the projects to which they relate, software developers would be well-advised to obtain legal counsel prior to beginning a project with open source software.  We are able to explain the terms of open source licenses and their implications on software development projects.  Please contact us if we can be of assistance in helping you navigate the nuances of open source software licensing.

The foregoing article was provided for general information.  Seek specific legal advice for your situation.  The attorneys of David L. Bea & Associates are experienced in computer law.  If you have any questions, please do not hesitate to contact us.

© 2011 David L. Bea & Associates