The benefits and risks of open source licensing

In the rush to bring a product to market, hurried software developers can run afoul of important open source software licensing rules.
Written by D’vorah Graeser, Graeser , Contributor
Commentary - In today’s tech savvy business world, the ability to develop software quickly and effectively is essential to beating your competitor to the market. To reduce cycle time, software designers often turn to established proprietary source code as a base, allowing them to build out the framework of their software quickly while focusing most of their attention on unique their algorithms or functions.

This time-saving and cost effective strategy isn’t limited to organizations with proprietary code. Developers, especially start-up programmers, often use publicly available open source code in the early phases of a project. What some developers don’t realize is that, even when using open source code, they’re entering a legal agreement in terms of copyright.

In the rush to bring a useable product to market, hurried software developers can run afoul of important open source software licensing rules, leaving themselves exposed to copyright complaints, infringement suits and loss of control over their own code.

To maintain programming standards, the development communities that freely operate and improve their open source code also stipulate Terms of Use for each of their open source licenses – any failure to comply with their terms will result in the automatic termination of that license. If the license termination is ignored and the developer continues to use the open source code, it becomes copyright infringement and the guilty party may be prosecuted.

A similar violation can occur when developers attempt to overlap open source licenses. Many cannot be combined under any circumstances; doing so could once again end in copyright infringement charges, as the licenses themselves have contradictory or competing terms.

Also, unlike other proprietary code licenses, open source licenses are perpetual; once you’ve signed and included the license, you’re on the hook for the Terms of Use in perpetuity (or at least as long as you use the code).

Problems can also arise due to contamination of proprietary code with open source code. Contamination occurs because, according to some open source software licenses, any software created from or containing even part of an open source code must be made freely available according to the terms of the original open source license. This is one of the most common mistakes companies make when using open source code. Proprietary software contamination can be a very costly oversight so proper examination of a license’s Terms of Use prior to use is of the utmost importance.

As software designers write their code, it’s important to know where each line is coming from. IBM, for example, has a well-known policy of requiring that candidate companies for acquisition be able to pinpoint exactly where every single line of code that they process comes from. That way, there’s little danger of contaminating proprietary software with open source code.

While all these possible pitfalls can be dangerous, open source code still remains a great way for companies to develop software quickly. And the real key to successfully doing just that is finding code with the best perfect open source license for your needs. In total, there is code governed by roughly 70 open source licenses available to the public. But to help ease the decision, most licenses fall into one of two groupings: “strong” open source licenses that require all code incorporating the open source component to be released under the same conditions as the original open source code; and flexible open source licenses that do not have such demands for distribution of the combined code.

The strong open source licenses are popular among many open source communities. The communities that design and maintain these popular types of open source code have a high regard for “openness” and, as such, want everything using their open source to also be publicly available. This does not mean you cannot sell or distribute your newly created software (you can), but you must also freely release the combined software code (incorporating the open source code). A great example of such a strong open source license is GNU General Public License (GPL-3.0). But if you are looking to create proprietary software and do not wish to freely distribute the source code, avoid GPL-3.0 at all costs as it has the strictest Terms of Use.

Also be wary if you have patent licensing agreements; the new GNU license stipulates that you cannot license patents exclusively or under special terms to one company, while blocking others; you have to give the same terms to everyone who licenses your software.

For those companies not wishing to release open source code, flexible open source licenses may be the best fit. Software protected by such flexible licenses can be copyrighted, patented and sold without any penalty. Flexible software licenses vary in their Terms of Use, but most have little to no restrictions. One example of this type of license is the Apache open source license. This provides the best solution for companies that wish to patent or otherwise place restrictions on software they have created, even though they are using open source code.

Diligence is a must when examining your open source and licensing options. The best starting point is simply knowing the differences between the different types of open sources licenses and your goals for your software – for example, whether you wish to keep your code completely proprietary, whether you wish to file for patent protection and so forth. Then, if you take the time to understand the Terms of Use agreements and choose the open source license that is the best fit for your company, you’ve started off on the right foot.

D’vorah Graeser, Ph.D. is the founder and CEO of Graeser Associates International (GAI), an international intellectual property firm specializing in the preparation, filing and prosecution of medical device, biotechnology, pharmaceutical, bioinformatics and medical software patents. Dr. Graeser is a US Patent Agent and is not an attorney at law; none of the above should be construed as legal advice.

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