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News: Mondaq: The Truths and Myths of Open Source Software

  1. In "The Truths and Myths of Open Source Software," Melise R. Blakeslee and Brian E. Ferguson have written up a detailed summary of six myths about open source from a legal standpoint, including attitudes about reliability, public domain, intellectual property rights, and more. The article requires a fairly detailed registration, but the content is very good. While not exhaustive, it covers the following six myths very well:
    • Open Source Is in the Public Domain
    • No One Gets Caught Misusing Open Source
    • Proponents of Open Source Are Hostile to Intellectual Property Rights
      One might expect that the proponents of open source software would eschew the intellectual property rights their proprietary counterparts have relied on to generate profit. However, the premise of open source software—allowing complete access to source code in exchange for certain promises—is predicated on the enforceability of the GPL and other similar licenses under copyright law. The GPL grants recipients of software the permission to copy, distribute and modify the program. In exchange for the right to copy the software the recipient is obligated to include a notice of copyright, a disclaimer of warranty and a copy of the original GPL. The right to modify the program carries with it the obligation to license the modified work on the same terms as the GPL. The goal of these two provisions is to ensure that once a program is licensed under the GPL, the program and its derivatives will perpetually remain open source. While the objectives of the GPL are apparent, the question is often raised as to whether the GPL and other similar licenses are enforceable. In the United States the extension of copyright law to computer programs avails the owner of the exclusive right to copy, distribute and prepare derivative works. Even though the two philosophies, open source and proprietary, are opposed in many ways, each depends on the same set of exclusive rights to achieve its goals. Those who believe GPL licenses are fully enforceable point out that, in the absence of an unenforceable license, copying or modifying an open source program constitutes infringement. Such partisan advocates pose the question: if open source licenses are not enforceable, then where does the recipient receive the right to copy, modify and distribute an open source program? Further, if shrink-wrap licenses (i.e., a unilateral contract requiring no consent) are enforceable (as several U.S. courts have held), then why should open source licenses be treated differently? On the other side, many argue that such licenses are overreaching because they dictate how the recipient's own creation must be licensed. Despite the controversy, to date no authoritative decision exists on the GPL's enforceability or validity or that of similar licenses under copyright laws.
    • Open Source Presents Too Much Legal Uncertainty
    • Open Source Is Not Profitable
    • Open Source Is Not Reliable
    Understanding what is and what is not a myth of open source is critical to anyone considering the use of open source in their own products. Notions that open source software is in the public domain and that proponents of open source shun intellectual property law must be discarded. Scrutinizing the above myths to assess their relative validity will allow retailers and customers to gauge the true legal and financial risks associated with the use, modification and distribution of open source code. In today’s market, consulting a lawyer with a firm grasp of open source and its many variant licenses is vital to avoiding the pitfalls and land mines to which any open source venture is vulnerable.
    What do you think? Does information like this help you, or is it aimed at an entirely different group of readers?

    Threaded Messages (5)

  2. Value of the content[ Go to top ]

    I'm not sure if its really worth the registration to read the paper. Its rather short and mostly accurate, but if you are already familiar with the various OSS licenses, philosophy, etc. don't bother.
  3. GPL enforceable in Germany[ Go to top ]

    In 2004 a German court ruled that the GPL is enforceable in Germany: http://www.jbb.de/html/?page=news&id=32
  4. to sum it up[ Go to top ]

    1) All confusion around GPL stems from the reason that in many cases the members of the project has not kept track of the copyright-holders and/or what they have done. In that case the GPL may not be enforceable. There are no owner that can sue. 2) In the case where the copyright-holder(s) is known (like MySQL) there are no problem. In that case the GPL is clearly enforceable. It is because of 1) that the Free Software Association makes all contributers sign over their copyrights to the foundation. Notable is in case 2) the owner has a much better protection for his software than any commercial distribution! :) Regards Rolf Tollerud
  5. Re: to sum it up[ Go to top ]

    It is because of 1) that the Free Software Association makes all contributers sign over their copyrights to the foundation.
    It's not quite that easy. It's my understanding that in many countries you can't just assign copyright when it's not an employeer/employee relationship. France and Germany are a couple examples.
    1) All confusion around GPL stems from the reason that in many cases the members of the project has not kept track of the copyright-holders and/or what they have done. In that case the GPL may not be enforceable. There are no owner that can sue.
    It's actually more than that. The whole question of what is a derivative work has not been settled (at least in a US court), and probably most other countries as well. IMO, there's been a lot of wishful thinking by fanboys ("the spirit of the license"), and not enough critical thinking about the legal realities.
  6. I find the article rather superfilious. After all, what kind of myths are these? Apart from 4, "Open Source Presents Too Much Legal Uncertainty", which unfortunately is not a myth at all, all the rest are just rubbish and I don't hink anyone ever believed these "myths"