Legal Issues of the 21st Century
Legal Research for: Open Source Software
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. 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.
There has been much discussion on open source licensing’s many attractive features, such as easy access to source code and the broad community of developers, both of which contribute to the technology pool. 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?
In order to understand the legal issues surrounding Open Source you must first understand what the term “Open Source” 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. 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.
The term “free” 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 “free” in the free software is like “free as in speech, not free as in beer” It is a common misconception that Open Source software and public domain software are the same. While public domain software is released freely into the public domain and the author retains no copyright, Open Source does not. 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.
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 – 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.
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.
The license must not discriminate against any person or group of persons.
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
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.
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.
No provision of the license may be predicated on any individual technology or style of interface. 
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. 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.
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. While there have been some efforts to centralize ownership of copyright in managers, most Open Source projects will ultimately have many copyright owners.
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 “sign” 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 “work for hire” doctrine applies where an employee in the scope of his or her duty develops software. 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.
There is also an issue who has the right to enforce the copyright license agreements in the case of an infringement or license violation. There is no clear answer to this issue. 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.
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.
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. 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. 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. More specifically, it would entail provisions relating to license terms and warranties would be substantially effected.
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 “open source” 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.
 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).
 A REPORT OF THE SOFTWARE LICENSING COMMITTEE OF THE AMERICAN BAR ASSOCIATION’S INTELLECTUAL PROPERTY SECTION, AN OVERVIEW OF "OPEN SOURCE" SOFTWARE LICENSES, http://www.abanet.org/intelprop/opensource.html (last visited February 20, 2004).
 See “object code” in definition of “source code” at http://searchwebservices.techtarget.com/sDefinition/0,,sid26_gci213030,00.html (Last visited Fed 21 2004).
 Kennedy, Supra note 1. at 2
 See Open Sources: Voices From the Open Source Revolution (Chirs DiBona et at., eds, 1999).
 Kennedy, Supra Note at 14.
 Kennedy, Supra note 1 at 2.
 A REPORT OF THE SOFTWARE LICENSING COMMITTEE OF THE AMERICAN BAR ASSOCIATION’S INTELLECTUAL PROPERTY SECTION, Supra note 2.
 Kennedy, Supra note 1 at 26.
 Id. at 27.
 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).
 Kennedy, Supra note 1 at 29.
 Id. at 26.
 Uniform Computer Information Transaction Act, Nat’l Conf. Of Commissioners on Uniform State Laws, § 102(a)(10)
 Kennedy, Supra note 1 at 27.