Andrea Bauer
Legal Issues of the 21st
Century
Legal Research for: Open
Source Software
Introduction
Open
source software and software licenses have existed since the early 1980s, but
only in recent years have they captured public attention due to the unique
approach to software-licensing and community based programming.[1] The Internet is partially responsible
for the increased popularity of open source projects and the open
source-licensing model, because it has helped make them more cost effective and
efficient for programmers to collaborate on development projects and to
distribute software among themselves and to customers.[2]
There
has been much discussion on open source licensingÕs many attractive features,
such as easy access to source code and the broad community of developers, both
of which contribute to the technology pool.[3] There is however, a legal downside to
the open source phenomenon. What
is the definition of Open Source and how to apply this term to current projects
in the software industry? How does
the Open Source approach to copyright and licensing impact the traditional
licensing and copyright laws?
Background
In
order to understand the legal issues surrounding Open Source you must first
understand what the term ÒOpen SourceÓ software means. In general, source code is the readable
format and form, some computer programming language, in which a computer
program can be edited, read, modified and used. The other formats of code such as object code (aka
executable code) are only in a format understandable to the computer.[4] Therefore, the valuable code to a human
who wishes to read, understand, add and modify the code is the source
code. The important feature of
Open Source is that when you receive your program you not only get the executable
code but also the source code.
Under
the Open Source community model the users have access to and the right to
modify source code. The code is
modified by potentially thousands of contributing programmers in order to
improve the program and returned back to those who distributed it for the
purpose of creating a new and better program.[5]
The
term ÒfreeÓ has often been associated with Open Source, however, there is am
important distinction that must be made.
Stallman said it best when he coin the aphorism that the ÒfreeÓ in the
free software is like Òfree as in speech, not free as in beerÓ[6] It is a common misconception that Open
Source software and public domain software are the same.[7] While public domain software is
released freely into the public domain and the author retains no copyright,
Open Source does not.[8]
The software is free in that it is generally available to anyone to obtain and
download, but like all other forms of software there are license agreements and
the owner retains copyright. The
License Agreements used in Open Source, however, are different in that they are
used to minimize or eliminate restrictions on users that might prevent the free
use of the software, source code and derivative works.[9]
As a result of the Open Source movement,
there have been significant opportunities for software developers to take
advantage of a vast pool of software talent with access to, and the ability to
improve upon, open source software; and the ability to access and utilize
software that could be of great use but whose acquisition might otherwise have
been cost prohibitive. The
disadvantage is that there may be legal problems and risk associated with the
new Open Source approach.
Legal
and Other Risks Associated with Open Source
What
is Open Source?
The
first area of confusion lies in multiple definitions and ideas about what Open
Source is and what it entails. In
general, there are several characterizations of licenses which define Open
Source:
The license shall not restrict
any party from selling or giving away the software as a component of an
aggregate software distribution containing programs from several different
sources. The license shall not require a royalty or other fee for such sale.
The program must include
source code, and must allow distribution in both source code as well as
compiled form. Where some form of a product is not distributed with source
code, there must be a well-publicized means of obtaining the source code for no
more than a reasonable reproduction cost Ð preferably, downloading via the
Internet without charge. The source code must be the preferred form in which a
programmer would modify the program. Deliberately obfuscated source code is not
allowed. Intermediate forms such as the output of a preprocessor or translator
are not allowed.
The license must allow
modifications and derived works, and must allow them to be distributed under
the same terms as the license of the original software.
4.
Integrity of The Author's Source Code
The license may restrict
source-code from being distributed in modified form only if the license allows the distribution of
"patch files" with the source code for the purpose of modifying the
program at build time. The license must explicitly permit distribution of
software built from modified source code. The license may require derived works
to carry a different name or version number from the original software.
5.
No Discrimination Against Persons or Groups
The license must not discriminate
against any person or group of persons.
6.
No Discrimination Against Fields of Endeavor
The license must not restrict
anyone from making use of the program in a specific field of endeavor. For
example, it may not restrict the program from being used in a business, or from
being used for genetic research.
The rights attached to the
program must apply to all to whom the program is redistributed
8.
License Must Not Be Specific to a Product
The rights attached to the
program must not depend on the program's being part of a particular software
distribution. If the program is extracted from that distribution and used or
distributed within the terms of the program's license, all parties to whom the
program is redistributed should have the same rights as those that are granted
in conjunction with the original software distribution.
9.
License Must Not Restrict Other Software
The license must not place
restrictions on other software that is distributed along with the licensed
software. For example, the license must not insist that all other programs
distributed on the same medium must be open-source software.
*10.
License Must Be Technology-Neutral
No provision of the license
may be predicated on any individual technology or style of interface. [10]
There
have been many variations of the Open Source definition and application of the
philosophy. For example, Sun
Microsystems has introduced a "Community Source License Agreement"
that is an attempt to capture some of the spirit and momentum behind open
source initiatives, but contains significant restrictions that make it
substantially different from the "classic" open source licenses.[11] The Sun license in some instances
requires the licensee to pay Sun a fee; it also contains restrictions on
modifications that do not pass a large set of conformance tests, and treats the
source code as "confidential information," even though it is
available for download from the Internet.[12]
With
so many variations of what Open Source entails, it is imperative that Software
developers and lawyers have an opportunity to review license agreements
associated with "open source" programs before they download and use
these programs in their own projects.
Who
is the Copyright Owner of the Open Source
Generally the author of the code in open
source software retains the copyright OR applies the particular open source
license to his/her code. But
because open source software is developed under a community model, there can be
questions of ownership.[13] While there have been some
efforts to centralize ownership of copyright in managers, most Open Source
projects will ultimately have many copyright owners.[14]
Some
programmers develop code for open source software while at work. In most organizations, the IP is owned
by the company. Can the programmer
actually ÒsignÓ the open source agreement and provide the code? There may be a possible in violation of
his/her employment agreement.
There is also the question of whether and how the Òwork for hireÓ
doctrine applies where an employee in the scope of his or her duty develops
software.[15] If the work for hire doctrine applied
then the company would be the owner of the copyright and the employee
(programmer) would be subject to their employment agreement which would not
allow them to contribute to the Open Source project and no right to sign the
Open Source licensing agreement.[16]
There
is also an issue who has the right to enforce the copyright license agreements
in the case of an infringement or license violation.[17] There is no clear answer to this issue.[18] In some version of Open Source
licenses, all programmers that have contributed to the software retain
ownership. Does this mean that all
owners of the software can or must be involved in enforcement? The approach that the Free Software
Foundation has taken is one possible solution. Their license agreement requires the owners to agree to
assign copyright ownership over to the Foundation so that the Foundation can
take legal action against infringers.[19]
Legal
Implication of the Open Source license Agreements
As
stated previously the Open Source License Agreements are unique in that they
are aimed to minimize or eliminate restrictions on users that might prevent the
free use of the software, source code and derivative works. They are unlike
typical license agreements which aim to protect the software and limit its use
for specified purposes. There is
some question as to the interpretation and use of license agreements in this way. No cases have been decided that
directly interpret any of the Open Source licenses.[20]
The
Uniform Computer Information Transaction Act
The
Uniform Computer Information Transaction (UCITA) is a new development that will
impact Open Source transactions.
The UCITA is the proposed law for software transactions. UCITA was originally conceived for the
laudable purpose of bringing uniformity and certainty to the rules that apply
to software transactions.[21]
The big question is whether the UCITA will apply to Open Source
transactions. The definition of
computer information contained in the UCITA is broad enough to include Open
Source.[22] The UCITA is intended as a gap
filler therefore, if the UCITA does apply to Open Source then it may imply
certain provisions that are contrary to the intent and philosophy of Open
Source.[23] More specifically, it would
entail provisions relating to license terms and warranties would be
substantially effected.[24]
Conclusion
In
summary, there are many benefits from Open Source software. However, there are serious problems
that have resulted as the creation of this new programming philosophy
emerged. There are issues as to
who retains the copyright and who has the right to enforce those rights. Along with those issues are
employee/employer related issues and work for hire implications. The terms of various open source
licenses may pose other inherent problems that may not be apparent and need
careful review of what each Òopen sourceÓ license agreement contains. There are also new laws and regulations
emerging that will have an effect on Open Source practices which need to be
considered when taking part in the Open Source Community.
[1] Dennis M. Kennedy, A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and Copyfuture, at http://www.denniskennedy.com/opensourcedmk.pdf (last visited February 20, 2004).
[2]
A REPORT OF THE SOFTWARE LICENSING
COMMITTEE OF THE AMERICAN BAR ASSOCIATIONÕS INTELLECTUAL PROPERTY SECTION, AN
OVERVIEW OF "OPEN SOURCE" SOFTWARE LICENSES,
http://www.abanet.org/intelprop/opensource.html (last visited February 20,
2004).
[3] Id.
[4] See Òobject codeÓ in definition of Òsource codeÓ at http://searchwebservices.techtarget.com/sDefinition/0,,sid26_gci213030,00.html (Last visited Fed 21 2004).
[5] Kennedy, Supra note 1. at 2
[6] See Open Sources: Voices From the Open Source Revolution (Chirs DiBona et at., eds, 1999).
[7] Kennedy, Supra Note at 14.
[8] Id.
[9] Kennedy, Supra note 1 at 2.
[10] Open Source
Initiative, The Open Source Definitions, at http://www.opensource.org/docs/definition.php
(Last visited February 20, 2004).
[11] A REPORT OF THE SOFTWARE LICENSING COMMITTEE OF THE
AMERICAN BAR ASSOCIATIONÕS INTELLECTUAL PROPERTY SECTION, Supra note 2.
[12] Id.
[13] Kennedy, Supra note 1 at 26.
[14] Id. at 27.
[15] See GigaLaw.com, What is a Work Made for Hire?, at http://www.gigalaw.com/articles/loc-200-02-p1.html (last visited February, 20, 2004).
[16] Kennedy, Supra note 1 at 29.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 26.
[21] UCITA at http://archive.inforworld.com/ucita.
[22] Uniform Computer Information Transaction Act, NatÕl Conf. Of Commissioners on Uniform State Laws, ¤ 102(a)(10)
[23] Kennedy, Supra note 1 at 27.
[24] Id.