When navigating the complex legal landscape of open source software (“OSS”), it’s critical to understand that where OSS is concerned, free does not mean free.
OSS is “free” in the sense that you may use it without paying a fee. Most importantly, however, OSS is NOT “free” of legal restrictions. Indeed, some types of OSS licenses, like the GNU GPL, are highly restrictive.
Some software developers mistakenly believe that because they don’t have to pay a fee to have access to the OSS source code, OSS is in the public domain and can be freely used without any restrictions.
This is not the case.
OSS is not in the public domain — free of protection by copyright law. Original authors of works licensed under OSS terms choose to retain their copyright ownership rather than expressly disavow their legal rights and release the software into the public domain truly free of any legal restrictions on use.
And some developers through OSS licenses use copyright and contract law to control licensing terms, downstream distribution and availability of the source code.
Despite their rallying cries of freedom, some developers act like little dictators over their software and use OSS licenses to control the use and distribution of modified OSS as well as any software that incorporates or rub shoulders with the OSS.
Some licenses like the GNU GPL, the most commonly used type of OSS license, have flow down provisions that require the source code to be open to all when distributed to others. Consequently, modifications of the OSS or other new code that is combined into the same executable files created by subsequent developers may become OSS governed by the same restrictive licensing terms.
Restrictive licenses can create problems for software developers who want to legally protect and license their work based on OSS or code used in conjunction with OSS. To protect the code’s commercial value, some developers want to protect their new source code as a trade secret and restrict access to the source code by others, especially competitors. Tyrannical licenses, like the GNU GPL, prohibit this type of source code protection.
Jill Hubbard Bowman is an intellectual property attorney who helps software developers create strategies for dealing with OSS licenses.
The information provided in this legal blog is not intended as legal advice and does not create an attorney-client relationship. Please do not submit questions or comments seeking legal advice or submit confidential information through this blog. By communicating through this blog, you understand and agree that the information will not be treated as confidential and the publisher has no duty to keep it confidential.