Nov 13

There was a legal judgment last August which is pretty significant in terms of upholding the rights of open source copyright and license holders.

The Court of Appeals for the Federal Circuit Court, which is considered the most important intellectual property appeals court in the US, upheld a open source copyright license.

In non-technical terms, the Court has held that open source licenses have the right to set conditions on the use of copyrighted work. So, even if an open source license does not collect royalty fees, it is a copyright license and the conditions need to be honored.  If you violate the condition, the license disappears, and you are a copyright infringer.  In other words, a open source license is just like a commercial license in that if you use the open source, you have to honor the conditions of the license.

Here is the opinion:

This is very significant as some previously had the theory that because an open source license did not collect monetary fees, there was no real “contract” and the conditions in the license were not really enforceable.

So there you have it.  Many engineers in commercial software companies download open source and incorporate it into their commercial software, without honoring the license obligations.  This case, clearly establishes that the license obligations must be honored, or it is a case of copyright infringement which can lead to losing battles in court.

All of this reinforces the basic conclusion, commercial software developers should set a open source governance policy.  They should decide which open source licenses have conditions which are acceptable to the organization and can be fulfilled.  Any licenses which have conditions which are not acceptable should not be approved.

The organization should also scan for open source in the current source code base, using either manual methods or a professional audit firm like Source Auditor.  The organization should remove any open source which is associated with licenses which are not approved and not acceptable to the organization.  For many commercial organizations, this is usually open source associated with the GPL license, which accounts for over 50% of the projects in open source repositories like Sourceforge.

Of course, many GPL licensed open source projects have similar project counterparts that are licensed with friendlier licenses like Public Domain, MIT, BSD, CPL, or Apache.

The policy should also be enforced going forward, ie, the organization should review new proposed additions of open source to the commercial code base, and should decide if the proposed addition license is acceptable before approving the addition.