Open source software: Is it really and truly free?

Computer source code is freely available from many originators. Software developers have access to this source code, and they may use and modify it, owing no money to the originators. This “open source” software, however, carries restrictions. Typically, there are licenses that travel with it, containing various restrictions on its use and dissemination. That means that based on the license terms, the developer often has no right to charge a royalty or other fee for selling software that embodies the open source code, among other restrictions.

Open source software therefore is not the same thing as code that is in the "public domain." Software in the public domain means that there is no copyright, patent or trade secret protection for the source code, and that it is available for the taking without any restrictions. In contrast, open source software is still protected under copyright and sometimes patent laws, and may carry certain licensing restrictions.

In short, open source software is not "free." A better way to look at it is to say that the software carries with it certain "freedoms" that software owners typically would not permit others to enjoy. For example, typical software owners prohibit any copying or modification to the software, deny access to source code, restrict the number of machines on which the software may be loaded or the number of users, etc. Open source software owners, in contrast, encourage dissemination and improvements on their work, but only based on their licensed terms.

Open source criteria

The Open Source Initiative, a California 501(c) 3 corporation, is an organization recognized by the open source code community. OSI has outlined certain criteria with which a software should comply to be considered an “open source” software: • The code must be redistributed freely and the license should not require payment of any royalty or other fee for such sale or redistribution.

• The program must include the source code, or it must be easily available, such as by downloading via the Internet at no cost.

• The license must allow for modifications and creation of derivative works, which must be distributed according to the terms of the original software license.

• The license must permit distribution of the modified source code, although it could require that the modified source code be distributed under a different name or version number.

• The license must not discriminate against persons or groups.

• The license must not restrict use of the source code in any given field.

• The terms attached to the source code must apply to everyone to whom the open source code is distributed and such practice should not be required to execute additional licenses.

• The rights must not depend on the program being specific to a product.

• The license must not place restrictions on other software that is distributed with the licensed software.

• The license must not be predicated on any individual technology or style of interface.

A more detailed list of the criteria listed above is available at OSI's website. The OSI lists the various licenses that it has determined are compliant with these principles. Many other licenses also exist, although they are not officially recognized by the OSI as “open source” software under its definition.

Know what you're getting

Companies employing software developers may have a policy requiring that no open source software be used, especially for products sold to third parties, given the risks of using such code. By using open source software in its products, even a few lines of code, the company might be subject to the license's requirement to give away its products for free.

The company might also be sued for infringement by someone claiming that the code in the open source software violated that person's copyright or patent. Because the company's developer did not create the code, there is no easy way to verify whether it is wholly original versus a copy of some other code.

Yet, there are advantages in working with open source software - most obviously, open source software has no financial charge for its use, and it has a community of developers behind it who are constantly improving on the code.

So, a flat ban may be outdated in today's world. Companies should develop a policy on acceptable uses of open source software to gain from the ingenuity behind open source software while managing and understanding ownership rights and risks.

Previous articles by Deborah Wilcox

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• Deborah Wilcox: “Inline” intellectual property raises legal issues

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