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A legal outcome in a public domain-opensource

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A legal outcome in a public domain

March 22, 2005

Over the past 12 months, a greater awareness has emerged among lawyers about the existence of open source software and the need to identify its use within an organisation.

Lawyers should not assume that, alerted to its existence, they can apply their usual skills and easily advise their client or employer.

The Free Software Foundation coined the term "copyleft", as opposed to copyright, to distinguish the key philosophy that modifications to open source should be made freely available to everyone. A lawyer new to this topic needs to understand that open source software is not in the public domain. Its use is governed by licence terms and these terms differ markedly from those they may have reviewed.

The terms often reflect a political manifesto rather than predictable commercial terms that serve a business purpose, there is ambiguity and uncertainty in the licence terms and no warranties or indemnities are provided for unsupported versions.

There are several key licensing issues that counsel will have to address. Assuming there is a process to capture the use of open source within an organisation, counsel will be expected to review the licences that the IT department wishes to use. In the case of the general public licence (GPL), the challenge is to review its terms and provide definitive advice.

Say your in-house IT department wants to incorporate open source into a you-beaut software product it is developing. Provided modification of the open source software by your IT department is restricted to internal use and there is no distribution of the modified version outside your organisation, there may be no issues.

But what if you want to make the application available to related companies of your organisation? Say, the separate companies established to represent the various lines of an insurance business. Under section two of the GPL, if you modify the software and then distribute it, you must license the modified software as a whole at no charge to all third parties.

Arguably, this means that if your organisation licenses modified GPL code to a related company, it would have to make that modified source code available under the licence terms of the GPL - which are governed by copyleft rather than copyright principles to, say, your competitors.

There is no concept of a group licence and there is no definition of what is meant by a third party. However, there is a long list of FAQs associated with the queries about the GPL. But do the FAQs form part of the licence terms? Certainly, when you read them, they give one possible interpretation of the licence term. Usually, that view supports the social movement behind open source, but not necessarily your interpretation.

The lesser general public licence (LGPL), for instance, permits linking of a subroutine library to a proprietary application; the mere running of an application using the library is not restricted. An organisation could use its own licence terms and there would be no viral impact. If the library is modified and used with an organisation's proprietary application, then the complete program must be made available to all third parties at no charge under the LGPL.

Whenever proprietary code is mixed with open source, there is a risk that licence terms have been infringed. If the proprietary code was granted under a commercial licence, then it is likely that its terms would be breached by seeking to comply with the terms of the GPL.

Relatively few cases have reached the courts and they tend to be at the interlocutory stage. The court appears to take the view that the GPL terms are clear on use of code and therefore decisions have been in favour of the plaintiff GPL licensor. It would be interesting if a lower-court decision enforcing the terms of the GPL was appealed against. There seems to be a reluctance to take that challenge, which, in part, could be a concern that if you challenge a GPL licensor you may end up taking on the whole open source community.

With open source code being continually developed by the community, the issue of just who is the copyright owner may prove a challenge for someone seeking to establish they have the legal standing to begin an action for copyright infringement.

Despite the complexities, the benefits of open source make it worth persevering. There are still many licences that permit the use, modification and distribution of open source code upon minimal terms.

What's different about an OSS licence?

Its use is governed by licence terms and these terms differ markedly from those counsel may have reviewed before.

An OSS licence is not written by lawyers for lawyers. You won't find expressions such as the supplier provides a non-exclusive, royalty free revocable licence, for the territory of X, to do the following.

No warranties or indemnities are provided for unsupported versions.

There is ambiguity and uncertainty in the drafting of the licence terms.

Having an IT background (or a friend who understands software development) is a significant advantage, because in these licences the technology sits in the front seat and the commercial and legal terms with which IT and IP lawyers, in particular, are familiar, are relegated, somewhat to the back stalls.

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