Legal: Truth or Myth?
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Written by Melise R. Blakeslee   
Monday, 31 December 2007
Legal: Truth or Myth? - American Executive - RedCoat Publishing
Attorney Melise Blakeslee says many executives have mistaken beliefs about open source software.
Legal: Truth or Myth? - American Executive - RedCoat Publishing
The definition of open source software is fairly straightforward. It’s a type of computer programming licensed and distributed in a manner designed to encourage use and improvement of the code by ensuring that anyone can copy the source code and modify it freely. Unfortunately, there are many myths surrounding the use and licensing of open source. Here are a few of the most dangerous ones.

Myth one: Open source is in the public domain
A piece of software cannot be both open source and in the public domain. If an item is in the public domain, there are no laws that restrict its use by the public at large. Although a majority of the public might believe otherwise, open source depends on copyright law to restrict the use of software.

For example, the GNU General Public License (GPL) binds the recipient of open source software to a set of restrictions governing the ongoing licensing of that software. The viral nature of GPL is possibly its most glaring restriction: a recipient’s modifications of the original software become automatically subject to GPL. That means the recipient cannot restrict access to the source code of the new, improved version. Further, if GPL-covered software is combined with any other software (including that which is considered to be proprietary), then the combination must be treated as “open” under GPL, including that which had been proprietary.

Resolving whether open source software is the same as software in the public domain is crucial. Imagine the following scenario: a software company finds some source code in the public domain. Workers there spend years modifying the code and creating an improved application. The company then seals up the code and sells it to the public for a substantial profit.

Tweak the scenario and the difference is drastic: the software company acquires some source code covered by GPL. They create the same ingenious new application and sell it to the public without releasing the source code. The creator of the original code licensed under GPL sues the company for violating the license agreement, seeks damages, and releases the new and improved source code to the public. The legal ramifications of mistaking open source code for code in the public domain could not be more severe for software developers.

Myth two: No one gets caught misusing open source
As open source usage becomes more prevalent and more companies plan their business model around it, the enforcement of open source licenses will undoubtedly increase.

Several years ago, MySQL, a Swedish software company that markets open source database software, filed suit in federal district court against Progress Software Corp., a US software company. MySQL alleged that Progress breached the terms of GPL governing the use of MySQL’s software and, more specifically, that Progress sold a derivative work of MySQL’s software without providing the source code.

The parties settled the dispute, but the case illustrates that open source licensors are willing and able to enforce the terms of their open source license agreements. Since then, several other cases have been filed but none have gone to trial yet.

There are several watch-dog organizations to which open source license violators can be reported, including the Free Software Foundation and GPL-violations.org. These organizations have adopted a model similar to the now-familiar Business Software Alliance (BSA) and the Software & Information Industry Association (SIIA), which conduct audits of proprietary software. Once a violation is reported, the organization reports it to the copyright holder for enforcement. These groups then assist the copyright holder with any action and widely report any settlements received.

Myth three: Proponents of open source are hostile to intellectual property rights
The premise of open source software (allowing complete access to source code in exchange for certain promises) is predicated on the enforceability of GPL and other similar licenses under copyright law. GPL grants recipients of software the permission to copy, distribute, and modify the program.

In exchange for the right to copy the software, the recipient is obligated to make available a copy of the original GPL and, if modified, a copy of the modified work on the same terms as GPL. The goal of these two provisions is to ensure that once a program is licensed under GPL, the program and its derivatives will perpetually remain open source.

The question is often raised as to whether GPL and other open source licenses are enforceable. The answer seems likely to be yes, as copyright law only allows the right to copy, distribute, and prepare derivative works. In the absence of a license, copying or modifying an open source program is likely to constitute an infringement.

At the same time, many argue that such licenses are overreaching because they dictate how the recipient’s own creation must be licensed. Despite the controversy, to date, no authoritative decision exists on GPL’s enforceability or validity or that of similar licenses under copyright laws.

These are just a few of the myths surrounding open source. Clearly, understanding what is truth and what is a myth is critical to anyone considering the use of open source in their products.

Managers should discuss with programmers the extent to which open source is already used in the company’s products and should be mindful of the consequences of those programmers’ decisions, particularly in preparation for a sale of a company in which open source can affect the value of the business.

Melise R. Blakeslee is a partner with McDermott, Will & Emery (www.mwe.com).
 
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