An Open Source World: A Primer on Licenses, Obligations, and Your Company

What Is Open Source Software?

Open source software (OSS) refers to software in which, among other things, the source code is made available to the public. This is important because the open source community and various ecosystems can modify, improve, and incorporate the code into other works. Whereas with proprietary software, usually only the machine-readable compiled code is made available. It is important to clarify the concept of “free”. OSS is often referred to as free. While most OSS is indeed free of charge, it should be noted that “free” does not necessarily mean free of charge but rather refers to the freedom to use, modify, and redistribute the source code so long as certain conditions are met. Conversely, a product that is free of charge is not necessarily open source.

Many assume that the open source movement runs contrary to the concept of Intellectual Property (IP) rights. This, however, is a myth. The open source movement is actually made possible by IP rights. In most jurisdictions, such as the United States and Canada, software is automatically protected by copyright as soon as an original work has been created. Copyright law grants copyright owners the exclusive right to reproduce, prepare other works based on the protected work, distribute, and publicly display the work. In general, open source licenses use these exclusive rights to ensure that the code remains open and accessible so that successive developers can innovate around it. Anyone violating the conditions of the license may be held liable for copyright infringement.

What are Open Source Licenses?

The Open Source Initiative (OSI) is a public benefit corporation that refers to itself as the stewards 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 must allow for modifications and derived works. Derived works are essentially works based upon the licensed work. The OSI’s website lists all of the approved open source licenses. You should also be aware that source code that is made available but is not approved by the OSI is still often referred to as open source. Merely making the source code available does not necessarily mean the licensor has permitted you to modify or redistribute the software. The OSI has criticized companies that have advertised their software as open source when the license was not approved by the OSI board. Such software might be more accurately described as source available software.

Open source licenses ensure that others are generally free to use, modify, and redistribute the OSS. More generally, license agreements are a type of contract. There are, however, subtle differences in the interpretation of licenses and contracts that can have harsh implications for a party that is caught offside the license.

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