Intellectual property and open source are closely inter-related concepts in which open source licenses accompany a specifically purchased software program. The Open Source Initiative governs intellectual property (IP) rights of an open source license and it must meet the following criteria:

  • The licensee has the right to distribute and charge money for the program.
  • He or she has access to and the right to modify the program's source code.
  • He or she has the right to distribute and charge for any and all modifications.
  • The program is usable by those in all fields and industries.
  • Anyone who receives the program gets license rights without necessitating an additional agreement.
  • The rights apply to programs bought independently or as part of a bundled software group.
  • Distributing the program along with any other software and in any form.

Background: Open Source Software

The open source framework provides software users and developers an alternative method of development and distribution, alongside other methods that include freeware, public domain, shareware, vaporware, and commercial software. Applications, tools, and operating systems are all available as open source software.

The Free Software Foundation is the genesis of open source software after its creation by computer scientist Richard Stallman in the 1980s. The missions of this organization include:

  • Promoting the right of users to study, use, copy, redistribute, and modify software programs
  • Promoting the use and development of free software and documentation
  • Raising awareness of political and ethical issues associated with free software use
  • Creating new free software programs
  • Eliminating the need for proprietary software use

IP Protection for Open Source Software

Economists don't fully understand the open source software market and how innovation in this market is able to thrive without traditional IP protection. Open source software creators renounce copyright, patent, and trade secrecy since the software is fully reproducible and source code provided.

With no monopoly in place, competitive returns are the source of income in this market. Rather than profiting from selling copies of the software, developers sell their expertise through customization, consulting, and support services. 

Software, Copyright, and Licensing Issues

When working with other software developers and organizations, make sure that contracts specify exactly who owns the resulting IP. In general, software is copyright protected, which prohibits others from sharing the same use rights as the owner. These include the right to decide who can adapt, copy, and distribute your work and the right to take legal action against those who do so without permission. By copyright law, software falls under a type of literary work.

A recorded work necessitates Copyright protection; the work in question does not require registration or a copyright mark to get protection, although it also qualifies. The copyright owner can assign the copyright, thus selling the rights to their work. They can also give permission, called a license, to an individual or business known as a licensee. They grant the licensee specific rights to distribute, adapt, and/or copy the work. These rights exist in a legally binding document called the license agreement. It's important to draft a clear, detailed license agreement since it determines the outcome of any conflicts that may arise.

Common Open Source Software Licenses

Although countless open source software licenses exist, only a few are frequently used. The 3-Clause BSD license permits a redistribution of code under three terms:

  • Retaining the copyright notice, condition list, and disclaimer during software redistribution.
  • Binary redistributions must also include other materials provided with the original distribution.
  • The names of the copyright holder and contributors cannot be used to promote products derived from the original software without specific permission.

The Apache License Version 2.0 provides similar freedom of use and terms; however, it provides more specific information about the associated legal terms. 

The European Organization for Nuclear Research has a third license used only for hardware designs. This type of license is unique because instead of licensing a finished product, you are only licensing the design and must build it yourself.

Once the software has been licensed as open source, its use cannot be later restricted. The source code has already been published and the genie cannot be returned to the proverbial bottle.

If you need help with protecting software you've developed or other forms of intellectual property, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.