Is Open Source Software “IP”?

Is Open Source Software “IP”?

Peter created a software library for interpreting PostScript and PDF files.  It worked so well, he wanted to share.  So, he decided to release it as open source.  Eventually, Peter agreed with a company named Artifex to take over managing the open source code base for him.

More than 20 years later, another software company incorporated Peter’s open source code base into its word processing product and began selling the office suite to customers.   The software company did not seek Artifex’s permission, nor did they release their own code as open source.

Artifex sued, claiming breach of contract and copyright infringement.

But, if no contract was ever signed, how could there be a breach of contract?

And if the software was open source, how could there possibly be copyright infringement?

What happened here?  Was Artifex just power tripping?  Or did they have a real legal case?

After all, isn’t open source free for anyone to do whatever they want?

I thought open source was free software.

IP Myth: Open source software is not protected by IP rights. It’s totally free.

IP Fact: All software is protected by copyright, including open source software.

Yikes! Open source is copyrighted?? Does that mean I’m not allowed to copy the code?

Yes, and no.

You’re allowed to copy, use, modify and distribute modifications of the code – as long as you obey the terms of the open source license that accompanies the code.

When it comes to open source, ‘free’ means freedom to access and use the code as long as you obey the open source license.  It does not mean total freedom.

Every IP owner gets to choose how to exercise their IP rights.  In the case of open source software creators, they choose to allow the public to access, use and modify their software code, usually at no cost.

But their permission comes with strings attached.   Those strings are found in the license terms accompanying the open source package.   The license terms define any restrictions or obligations the user must obey.

You may have heard of names like Apache 2.0, the MIT License, or GPL.  These are common open source licenses.  More on these in our next IP Without Jargon post.

How can there be a license if I don’t sign or pay anything?

IP Myth: A license requires the payment of fees or royalties to the licensor.

IP Fact: A “license” is just a legal permission to do something. The licensor is the one who decides the requirements of the license, and to whom this license is offered.

A legally enforceable contract doesn’t require a signature, “I accept” or the payment of any money.   If you voluntarily use software that has associated license terms, then you have legally agreed to obey those terms.  That’s a contract that can be enforced in court, as soon as you download the code.

Your “payment” for the license is the actions you take to obey the license.

Where is this open source license?

The open source license is made available with the software download, either as an included file (e.g. license.htm) or a link to a website with the license.

Do yourself a favour – find the license and read it.

What if I don’t obey the license?

Your permission to use open source software is conditional upon obeying the requirements.  Permission may be automatically revoked if you don’t obey (depending on what the license says).

If a license is a permission to use the software, and the license is revoked, this means you no longer have permission to use the software.  Using IP without permission is known as IP infringement.

Software code is always protected by copyright, and sometimes also by patents.  In other words, violating an open source license may mean you’re infringing copyright or patents.  That means you could face a lawsuit.

Did you know… that open-source all-star Red Hat has over 3000 patents? Most of them are software patents covering Red Hat’s open source, such as this patent, and this patent.

Red Hat says it files patents to defend its open source customers from patent lawsuits filed by competitors.

The consequences.

Coming back to our Artifex story, because the other software company didn’t hold up its end of the bargain by obeying the open source license, Artifex sued.  They sued for copyright infringement, and for breach of the open source license contract.   The parties eventually settled out of court.

Of course, there are exceptions to every rule, and a very small percentage of open source software truly is free of cost and of restrictions.  But you need to read the fine print (the license) to know for sure.  In most situations, this will not be the case.

Next week we’ll discover what can happen to the unfortunate souls who don’t obey open source license requirements, and how you can manage this risk in your business.

Takeaways.

• All software – even open source – is protected by copyright, and sometimes by patents.
• Open source software has an open source (copyright) license that must be obeyed.
• Ensure you read and understand the requirements for the open source you use.

*Todd is Chief IP Officer at Scale AI, and a lawyer, patent agent and IP strategist with 25 years’ experience helping startups, SMEs and multinationals protect and commercialize their IP.

Please Note: Concepts discussed here have been simplified to facilitate learning. You should consult a qualified IP lawyer or agent to discuss your unique IP needs. Protecting your IP should not be a do-it-yourself project.

Scale AI is Canada’s AI Supercluster, investing in AI supply chain projects, acceleration and talent development across Canada. Visit us at www.scaleai.ca to see how we can help your business grow.