Professional Documents
Culture Documents
9 - Open Source Software Licenses
9 - Open Source Software Licenses
9 - Open Source Software Licenses
The open source software model is a community approach While open source software provides many valuable ben-
to software development that implements non-traditional efits to businesses and the software development community,
licensing arrangements to promote the free distribution of the licenses for open source software often contain stringent
software and the human readable programming instructions requirements. When companies use open source software in
(known as “source code”) underlying that software. In addi- their products without understanding the terms of the appli-
tion, users of open source software are permitted to create cable licenses, they may inadvertently incur risk related to the
derivative works of that software for any purpose.1 protection of their valuable intellectual property rights and,
Open source software offers a number of attractive advan- thereby, dilute the value of their software products and business.
tages to businesses. Because the source code for open source The widespread use of open source software suggests that
software is available to the public, many open source projects its practical implications are widely understood and appreci-
are developed, refined and improved upon by the developer ated. Unfortunately, the legal implications of using open source
community at large. A company that can make use of such software are not yet widely known or understood. This article
software in its business may obtain the benefits of a thorough- will: (1) briefly summarize the history of open source software;
ly-tested program while saving the cost and time it takes to (2) provide an overview of open source software licenses and
develop the software internally and avoiding substantial license issues that arise with respect to compliance with their terms; (3)
fees associated with traditional software licenses. Further, discuss the limited universe of available caselaw that provides
the company can maintain and improve upon the software guidance on the legal effect of open source software licenses;
in-house, which it might be unable to do under a traditional and (4) conclude by offering practical steps that companies can
software license agreement.2
➡
Elsie DeBrie David Goeschel
David Goeschel is a Shareholder
Elsie DeBrie is an Associate at
at Koley Jessen P.C., L.L.O. He
Koley Jessen P.C., L.L.O. She
counsels clients on the protection
drafts and negotiates a variety of
and commercialization of intellec-
commercial and technology agree-
tual property assets, with a focus on
ments and advises clients on the
structuring and negotiating a wide
protection of their intellectual
range of commercial and technol-
property rights. Elsie obtained her
ogy agreements. David obtained a
B.A. from Doane College (magna
B.A. and B.S. from the University
cum laude) and her J.D. from the
of Kansas (with honors) and his
University of Virginia College of
J.D. from Creighton University
Law.
School of Law (cum laude).
➡
THE NEBRASKA LAWYER 11 M ar c h / A p r i l 2 0 1 6
open source software licenses
gives rise to a copyright infringement action. In Blizzard, the The Courts in Katzer, Blizzard and Versata have provided
Court held that, “for a licensee’s violation of a contract to con- clues as to whether and how the terms of the GPL and similar
stitute copyright infringement, there must be nexus between copyleft licenses would be enforced, but we have yet to see a
the condition and the licensor’s exclusive rights of copyright.”33 definitive answer in the law.
One law journal article highlights the potential significance of
this holding in the context of copyleft: Practical Considerations
Since the Copyright Act grants only the rights Attorneys should be aware of the issues involved with
to reproduce the work, prepare derivative works, open source software and copyleft licenses, in particular, and
distribute copies, perform the work publicly, and
stay apprised of new and ongoing litigation surrounding those
display the work publicly, it remains to be seen
whether any of the common [copyleft] require- issues, so that they can advise clients on the risks and uncer-
ments of distribution of derivative works’ source tainties that underlie the incorporation of open source software
code, application of an identical license to deriva- into their proprietary products. Even given these risks and
tive works, notation of changes between the origi- uncertainties, though, the concrete advantages that open source
nal and derivative works, and nondiscrimination
would be held unenforceable.34 software offers to businesses should not be ignored.
More recently, in Versata Software, Inc. v. Ameriprise For clients that would like the flexibility to incorporate
Financial, Inc,35 Versata (as licensor) sued Ameriprise for open source software into their products, attorneys can encour-
breach of their Master Software License Agreement because age those clients to take few concrete steps in order to manage
Ameriprise permitted third-party contractors to access and the risk they assume. For instance, companies can educate their
work on Versata’s proprietary software in violation of the agree- personnel on the terms of the most-widely-used open source
ment. When discovery revealed that Versata had incorporated software licenses and how to comply with them. In addition,
GPL-licensed software owned by XimpleWare, Inc., into its companies can develop open source policies that include a list
software without complying with the GPL’s copyleft obliga- of licenses that are acceptable to their business from a risk
tions, Ameriprise brought a counterclaim against Versata, standpoint and a list of those that should be avoided. Such
arguing that Versata was required to provide the source code policies can also establish procedures that personnel are to fol-
for its product to all users, including Ameriprise and its third- low when they encounter open source software they would like
party contractors. Versata, then, argued that Ameriprise’s to implement within the company’s products, such as notifica-
counterclaim was preempted by copyright law. tion of appropriate management personnel and review of the
terms of the applicable license. By educating personnel and
The court disagreed with Versata’s preemption argument,
implementing a simple open source policy, businesses may be
stating:
able to “have their open source cake and eat it, too.”
The “viral” component of the GPL is separate and
distinct from any copyright obligation. Copyright Endnotes
law imposes no open source obligations, and 1 See generally Dennis M. Kennedy, “A Primer on Open Source
Ameriprise has not sued Versata for infringing Licensing Legal Issues: Copyright, Copyleft and Copyfuture,” at
[a non-party’s] copyright by distributing [pro- n.1, University of Miami, http://www.cs.miami.edu/home/burt/
tected materials] without permission. Instead, learning/Csc322.052/docs/opensourcedmk.pdf (accessed Feb. 1,
Ameriprise has sued based on Versata’s breach of 2016).
an additional obligation: an affirmative promise 2 See Richard Raysman, “Open-Source Software: Use and
to make its derivative work open source because Compliance,” Practical Law, http://us.practicallaw.com/9-504-
it incorporated an open source program into its 7111 (accessed Feb. 28, 2014).
software. Ameriprise’s claim therefore requires an 3 David Bretthauer, “Open Source Software: A History,”
“extra element” in addition to reproduction or dis- at 4, UConn Libraries Published Works (Dec. 26, 2001),
http://digitalcommons.uconn.edu/cgi/viewcontent.
tribution: a failure to disclose the source code of
cgi?article=1009&context=libr_pubs.
the derivative software. The presence of an addi- 4 Id.
tional contractual promise separate and distinct
from any rights provided by copyright law means
5 “What is Free Software?,” Free Software Foundation, available at
http://www.gnu.org/philosophy/free-sw.en.html.
Ameriprise’s claim is not preempted.36
6 “History of the OSI,” Open Source Initiative, available at http://
The Court did not address Katzer’s covenant-versus- opensource.org/history.
condition inquiry in the context of the GPL, but its reason- 7 See “The Open Source Definition,” Open Source Initiative,
available at http://opensource.org/osd.
ing is reminiscent of Blizzard and suggests that there is not a 8 Richard Kemp, “Open-Source Software,” at 7, Practical Law,
sufficient nexus between the exclusive rights of copyright, on http://us.practicallaw.com/0-500-4366 (accessed Feb. 28, 2014).
the one hand, and the obligation under the GPL to make the 9 North Bridge, Black Duck Software, “Seventy-Eight Percent
source code of derivative works available to users, on the other of Companies Run on Open Source, Yet Many Lack Formal
Policies to Manage Legal, Operational, and Security Risk” Black
hand, to yield a copyright infringement cause of action. Duck Software (Apr. 16, 2015), https://www.blackducksoftware.
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