Key Takeaways

  • Open source software (OSS) operates under licenses that grant users rights to use, modify, and redistribute code, but these rights must comply with specific license terms.
  • Intellectual property and open source are intertwined—OSS can still be subject to copyright, patents, and trademarks, even if its source code is openly available.
  • Businesses must manage IP risks in OSS use, including license compliance, attribution, and avoiding unintended disclosure of proprietary code.
  • Common OSS licenses (e.g., GPL, Apache, BSD, MIT) differ in how they handle derivative works, distribution requirements, and patent grants.
  • Strong governance, contributor agreements, and legal review help mitigate open source IP conflicts and protect proprietary innovations.

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

The Intersection of Intellectual Property and Open Source

Content: Open source software often exists within a complex legal framework that blends principles of collaboration with traditional intellectual property protections. While open source licenses allow broad use and modification rights, they do not automatically waive all IP protections—copyright, patent rights, and even trademarks may still apply.

For example:

  • Copyright protects the original code, meaning modifications and distributions must follow the license terms.
  • Patents may cover underlying algorithms or methods, and some open source licenses include express patent grants to avoid infringement disputes.
  • Trademarks protect branding and names, meaning open source projects can restrict how their name or logo is used even if the code is free to modify.

Understanding these intersections is essential for businesses to leverage open source while safeguarding proprietary innovations.

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. 

Managing IP Risks in Open Source Adoption

Using open source software without a clear governance strategy can lead to costly legal and operational risks. Common pitfalls include:

  1. License Incompatibility: Combining code with conflicting license obligations can force unintended open-sourcing of proprietary code.
  2. Attribution Failures: Neglecting to provide proper credit as required by the license can breach terms.
  3. Patent Exposure: Some open source licenses include patent clauses that, if violated, can revoke usage rights.
  4. Unintentional Disclosure: Incorporating confidential or proprietary code into open source projects may permanently forfeit exclusivity.

To mitigate these risks:

  • Maintain an internal inventory of all OSS components.
  • Implement an approval process for new OSS use.
  • Conduct legal reviews of licenses before integration.
  • Educate developers on license compliance and attribution rules.

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.

Contributor Agreements and Code Ownership

When multiple developers contribute to a project, ownership and licensing of contributions must be clear. Contributor License Agreements (CLAs) are commonly used to establish that:

  • Contributors affirm they have the rights to their submissions.
  • Contributions are licensed under the project’s chosen open source license.
  • The project maintainers have the right to relicense or enforce terms as needed.

Without these agreements, disputes may arise over code ownership, making it harder to enforce licenses or pursue infringement claims.

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.

Choosing the Right Open Source License

Selecting the appropriate license for your project affects how others can use, modify, and redistribute it. Key license categories include:

  • Permissive Licenses (e.g., MIT, Apache 2.0, BSD): Allow broad use and modification with minimal requirements, such as attribution.
  • Copyleft Licenses (e.g., GPL, AGPL): Require derivative works to be licensed under the same terms, ensuring continued openness.
  • Weak Copyleft Licenses (e.g., LGPL, MPL): Apply copyleft provisions only to specific components, allowing integration with proprietary software under certain conditions.

The choice depends on your goals—whether to maximize adoption, protect openness, or retain more control over derivative works.

Frequently Asked Questions

1. Is open source software automatically free of IP restrictions?

No. Open source grants certain rights under license terms but does not remove copyright, patent, or trademark protections.

2. Can I use open source code in commercial products?

Yes, but compliance with the license terms is required, and some licenses may require you to share modifications.

3. What happens if I violate an open source license?

You may lose your rights to use the software and could face legal claims for infringement.

4. How do I protect my IP when contributing to open source?

Use contributor agreements, choose an appropriate license, and avoid including proprietary code without clearance.

5. Are all open source licenses compatible with each other?

No. License incompatibility is common and can create legal obligations to open source proprietary code if not managed carefully.

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.