As the free and open source software (“FOSS”) movement gains momentum in commercial settings, lawyers need to address the legal problems associated with the sometimes vague and contradictory tenets of intellectual property law as it pertains to software, and the often ambiguous or contradictory terms of FOSS licenses. Of greatest concern is the so-called “viral” nature of the GNU General Public License (GPL), which purports to place restrictions on integration of proprietary software components with software covered by the GPL. Central to this question is the definition of “derivative work” under the Copyright Act, and the public position of the Free Software Foundation on the definition of this term, which some believe to be broader than that used by the Copyright Act as interpreted by courts.
The following articles explore these and other legal problems associated with open source licensing. The following materials also include an overview of other legal areas relevant to OSS, including moral rights, trademark, copyright, and patent.
Moral Rights and OSS - Moral Rights, an author's rights related to his or her personality imbued in the work he or she creates, are largely restricted in the United States to specific works of art by artists. While the concepts inherent in moral rights, such as integrity of the work and authorial attribution, can be logically extrapolated to any creation (such as a dance, a poem, a painting or source code, for example) by any kind of author (a choreographer, a poet, a painter or a code writer), United States case law and related commentary indicate that moral rights do not automatically inhere in source code and are not applicable to source code authors. Certain licenses provide protection to authors that is somewhat similar to moral rights, demonstrating that contract law is currently the best protection for authors in retaining certain non-pecuniary rights in their source code.
Trademark and OSS - Trademarks are intellectual property tools that protect both merchants and consumers. Open source software providers, despite their general goal of providing a public service in the form of non-proprietary software, are motivated to maintain their reputations for quality and therefore to maintain the strength of their trademarks. They are motivated to keep enough control over their trademarks to ensure they are a sign of quality and safety.
Copyright v. Patent - Both copyright law and patent law are applicable to the protection of software. One form of protection is arguably better than the other and there are vehement debates on the topic. This brief overview will provide the broad arguments each side offers as to the respective superiority of intellectual property protection under patent and copyright laws and demonstrate that new technologies are challenging bright line separations between the two forms of protection.
Copyright Primer - A list of websites that offer excellent overviews of United States copyright law that may be helpful for understanding some of the underpinnings related to the more specialized and particularized aspects of the Software Pluralism website. We recommend the websites for their clarity, applicability to the topics presented on our website and overall quality based on such factors as how often they are updated and whether they are endorsed or supported by reputable organizations or individuals.
Derivative Works - This article discusses the treatment of derivative works under the GNU General Public License. It argues that the functioning of the GPL depends upon a definition of derivative work that is significantly more broad than that employed by the Copyright Act or the courts. This over-broad definition ultimately leads to nonsensical results in the face of many modern program development and distribution methodologies. This article visits a number of fact-patterns to help illuminate possible weaknesses and inconsistencies in the GPL definition of derivative work.
This article requires that readers have more than a passing familiarity with computer software system concepts, so readers who are not well-versed in those ideas are urged to first read the Technology Primer.
License Type Overview - The information in this article is intended to assist anyone seeking a general, comparative understanding of the most popular open source licenses currently in use, and the implications of their use.
Contracts or Licenses: Does it Matter? - The information in this article is primarily directed at laypeople and lawyers with no background in intellectual property law. It discusses the potential implications under copyright and contract law of characterizing a document that licenses software as either a "license" or a "contract."
Enforceability of Open Source Licenses - This article raises some of the issues related to enforcement of open source licenses.
Patent Risks - This article addresses the question of whether and how much the so-called "patent risk" should concern parties that are deciding between open source and proprietary software offerings. The patent risk is the danger that a particular software system adopted by an end-user infringes an existing patent.