Open source is widespread and growing in many software development organizations. While there's no purchase cost, the code does come with license obligations. Understanding open source from an intellectual property perspective can help avoid downstream legal.
In 2009, the open source community witnessed a headline-catching lawsuit : Best Buy, Samsung, JVC, and eleven other consumer electronics companies were named in a copyright infringement lawsuit—the scope of which is unprecedented.
The suit alleges the defendants violated the terms of the GNU General Public License (GPL) by distributing products containing a tool called BusyBox that combines many UNIX utilities into a single executable that is commonly incorporated into household electronic devices. In the lawsuit, the defendants were alleged to have not made open source code available to downstream users as they were required to do under the terms of the GPL license, resulting in potential damages, injunctive relief, and legal fees. BusyBox has also been at the center of several other high profile GPL violations that have been settled with Extreme Networks, Monsoon Multimedia, Xterasys Corporation, High-Gain Antennas, and Verizon.
These enforcement actions drive home the importance of taking inventory of what open source software is included in your products, knowing what licensing obligations apply to each open source component, and taking action to comply with these obligations. Open source license compliance is particularly important given the rapid growth of embedded computer systems, such as products—including Insignia Blu-ray Disc players and Samsung LCD HDTVs—identified in the BusyBox lawsuit against Best Buy.
What Is Open Source Software?
Open source software refers to software in which the source code is made available to the public. The open source community and various development ecosystems can modify, improve, and incorporate the code into other works. By contrast, proprietary software is usually distributed only as machine-readable, compiled code. Open source software is often referred to as free and, while most open source software is indeed free of charge, “free” actually refers to the freedom to use, modify, and redistribute the source code so long as other licensing obligations are met.
These licensing obligations are enabled by intellectual property (IP) rights which, in most legal jurisdictions such as the United States and Canada, ensure that software is automatically protected by copyright as soon as an original work has been created. Copyright law grants software owners the exclusive right to reproduce their software and to create additional software based on the original protected work, as well as the right to distribute their software. In general, open source licenses use these exclusive rights to create and reinforce an ecosystem that ensures that source code remains open and accessible so that successive developers can innovate around it. These open source ecosystems freely propagate, since anyone failing to fully participate in the ecosystem may be violating license obligations and could be held liable for copyright infringement. While license obligations are indeed part of the extended cost of using open source, there are also significant benefits, including productivity gains and reduced development expense relative to proprietary software. Additionally, as in the case of Jacobsen v. Katzer , courts have recognized the substantial benefits of distributing copyrighted works under public licenses. The court noted that program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects.
What Are Open Source Licenses?
The Open Source Initiative (OSI) is a public benefit corporation that refers to itself as the steward of the open source definition (OSD). The OSI is a community-recognized body for reviewing and approving licenses as OSD-conformant. A license must comply with the OSI’s ten distribution terms in order to be approved as open source. The three major requirements include royalty-free redistribution, available source code, and the license