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Intellectual Property - Issues Behind Open Source

Open Source software has captured public attention during the past few years for its distinctive approach to software licensing and community-based programming, as well as the growing market share of programs developed under the Open Source model. The Open Source movement demonstrates the intent of its founders to turn traditional views of copyright and software licensing upside down-to the point of creating terms like "copyleft" to describe the alternative approach to these issues.
The availability of source code in Open Source programs and the ability to modify and improve the content contained therein is what distinguishes Open Source software from standard commercial software. What exactly is source code? The first thing to understand is that software can be distributed in one of two code formats. The first being object code and the second being the infamous source code. Object code is the instruction sequence for the computer processor. It is not readable by humans and is provided for us to solely run on our computer processor. Conversely, source code is comprised of programming statements generated by a programmer, usually through a text editor, and is readable by humans. After the information is compiled, the software is ready to be run on a computer processor. Most license agreements for commercial software prevent the user/licensee from having any access to the source code.

A fundamental principle of Open Source software is that the user/licensee must have access to the source code and the ability to make changes to the source code in order to remedy defects, customize options, or add any features deemed pertinent. In the world of Open Source software, the user/licensee is given both object code and source code.

The Open Source system of software development is community-based. Since programmers have free access to view and modify the source code, Open Source programs progress through the changes, recommendations, and subsequent coding of all contributing programmers. A group overseeing the Open Source program manages the work of these programmers. This group adopts specific changes from time to time and subsequently releases new versions of the software. With any number of programmers, from divergent backgrounds and with disparate objectives, participating in the application's development, the question turns to ownership rights.

One of the first acts passed by Congress was the Copyright Act of 1790. This Act went through a complete transformation in 1976 in order to broaden the scope of copyright law to include "all writings" instead of just books, and only in 1980 was the term "computer program" included on the list of copyrightable items. The legislative purpose behind granting copyrights is "to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Therefore, it is expected that the benefits of copyright laws stream down and benefit society as well as the author. The same expectation is present when it comes to software.

Open Source developers copyright their products; they remain the copyright owners throughout the life of the copyright, and apply the Open Source license to their created code. However, since Open Source software is often generated through the work of many programmers, questions arise as to which programmers own specific segments of the source code. If programmers develop software during the scope of employment--meaning that the programmer was hired to work on the specific source code(s)--the employer would be the owner of the code with rights to grant the license. If programmers work on Open Source software in their own homes or on their own time, then generally the rights to that software remains with the developer. However, programmers may be under an employment agreement which would prohibit them from contributing source code to an Open Source project or applying Open Source licenses to all code that they produce during their employment. Alternatively, many large companies, such as HP and IBM actively support Open Source development, both as a way to align with technology, and for marketing purposes. If this all sounds confusing, it is because it is. The best way to deal with these issues is by having a formal policy in place that clearly states a company's Open Source policy.

Open Source software is governed by a license and the owner of the software's copyright continues to own the copyright. However, if the software's owner chooses to explicitly release the software into the public domain, he relinquishes his copyright. Other people are then able to use and modify the work and treat the work as their own. Interestingly, software released into the public domain may be "re-copyrighted", if you will, by a new "author." That author then determines which license will govern the copyrighted Open Source software.

Open Source licenses typically place minimal restrictions on the use of the software in order to keep the software free and available to other programmers. These licenses require that: 1) the software be redistributed freely; 2) the source code be included with the redistribution; 3) derivative works be permitted; and 4) the author's source code retain its integrity. The four distinct categories of Open Source licenses-two of which will be addressed briefly below-are the General Public License (GPL), the Berkeley Software Distribution (BSD) license, the Mozilla Public License (MPL), and other non-GPL or commercial licenses. When choosing an Open Source license, the primary consideration for most people is whether the derivative work should be subject to the same license or have the ability to be made proprietary later on down the line.

The GPL Licenses encapsulate the very essence of the Open Source movement. The GPL maintains that all Open Source software as well as all derivative work remains free. Since the GPL is not an exclusive license, the copyright owner who places work under the GPL has the power to remove the work and place it under another type of license. However, if others incorporate work into the program, the copyright owner may not exercise this power over that specific work. Furthermore, GPL software may not be mixed with non-GPL software without subjecting the non-GPL software to the terms of the GPL.

BSD Licenses, on the other hand, are less restrictive. They allow for redistribution and use of both source and object codes as long as the redistribution of the sourse code retains the required copyright and other disclaimers. Under the BSD Licenses, the distribution of derivative source code is not obligatory. Correspondingly, programs under the BSD Licenses may be combined with proprietary software, and derivative works may be subject to whatever license the developing programmer chooses.

The MPL can be thought of as Netscape's way of combining what it feels are the best attributes of the GPL and BSD Licenses. Under the MPL, commercial licensing of derivative works is permitted, and changes to protected source code must be made freely available. However, since the most important aspect of the MPL is that it serves as a model for subsequent releases of commercial software into Open Source, more and more commercial developers are leaning towards the MPL as their licensing choice for commercial software.

Other Open Source licenses that do not fit into the above-mentioned categories are those created by IBM, Sun Microsystems, and other large commercial software corporations. The commonalities found between these licenses are their subtle variations on the GPL, BSD Licenses, and the MPL. These variations may include adding choice of law or contractual provisions readily found in standard commercial agreements.

Ever since the mid-1990s, the Open Source method has played an increasingly important role in the development of software, the Internet, and operating systems. Although the concept behind Open Source and U.S. copyright laws are to benefit society as a whole, it is without a doubt that the perception of Open Source as "free" software between programmers will continue to play against the legal battles of ownership rights and licensing in our legal systems. That is why it is imperative for programmers to determine whether they have the right to contribute to Open Source programs and for copyright owners to determine which license they wish their work to be governed under.

*The content of this article was gathered as a result of different Law Review articles made available through LexisNexis

Mahsa M. Kashani graduated in 2005 from Golden Gate University SOL and received her undergraduate degree from the University of California at Berkeley in 2001. She currently practices law in Oakland and deals with Toxic Torts and Products Liability litigation. She is admitted to the California bar. She also is admitted to practice before the United States Court of Appeals for the Ninth Circuit, as well as the United States District court for the Northern District of California.