Open source software has become an integral part of software development. From a legal perspective, the extent to which rights to the end product can be acquired is relevant. In this article, we show which risks exist in the development and acquisition of software and how these can be overcome.
What is open source software?
In principle, software code is a copyright-protected work. As such, the creator has the sole right to copy, distribute or otherwise commercially exploit the software when the code is created, as is the case with films or photographs. The source code is protected. This is the code written by humans, which a computer translates into instructions it can understand and then executes.
It follows from this: Anyone wishing to use someone else’s software in any way requires the corresponding rights of use, which can be granted to them by means of a licence agreement with the author. This can be done for a fee (e.g. Microsoft Office 365) or free of charge (so-called freeware, e.g. Skype, Adobe Reader).
Copyright is a basic prerequisite for the commercial exploitation of intellectual works. At the same time, however, it is also a barrier to further economic and artistic development. Other developers only have a limited opportunity to use an existing work as the basis for their own work. Open source software, on the other hand, pursues the very purpose of giving everyone the opportunity to view and edit the source code on which the software is based and to publish their own further developments. The basis for this is also a licence agreement between the author and the users, whereby particularly comprehensive rights of use are granted in the case of open source software. However, it would be a dangerous fallacy to conclude from this that the use of open source software is not subject to any restrictions.
How am I allowed to use open source software?
While the permitted use of open source software is much broader than that of proprietary software, it is not unlimited. The question can only be answered comprehensively with reference to the specific licence agreement. In order to facilitate the use of open source software, it is usually licenced under certain pre-formulated templates. This allows a user to quickly categorise the way in which they may continue to use the software code in a legally secure manner. Licence agreements can be roughly divided into two categories:
Copyleft licences require the licensee to re-license their further developments under the same open source software. In other words, commercial utilisation of the product is effectively excluded if copyleft software is integrated during software development in a way that triggers the copyleft effect. When this is the case is primarily a technical question. It is true that the licence holder is usually not prohibited from charging a fee for the granting of rights to use open source software. However, it is pointless as the licence holder is obliged to publish the source code anyway. Similarly, he cannot prohibit third parties from continuing to use the software. This would violate contractual obligations towards the original author. The most prominent example of copyleft licences is the GPL licence, which is also one of the most restrictive licences. Less restrictive copyleft licences, such as the Mozilla Public License, allow distribution under a proprietary licence subject to certain conditions.
Permissive software, on the other hand, contains no obligation regarding the licence under which the licensee must redistribute their work. It is therefore easily possible to incorporate open source software into software that is then to be redistributed under a proprietary licence. Examples of permissive licences are the Apache or BSD licence.
How do you organise the legally compliant use of open source software?
The issue of legally compliant handling of open source software is most important in the (further) development of software. As a rule, the client is interested in being able to utilise the software commercially. This in turn presupposes that he is the exclusive rights holder of the work and can keep the source code secret. A risk therefore arises when using copyleft software. This is also known as the “viral effect” of open source software. An essential prerequisite for all measures relating to the use of open source software is complete documentation of the licences used.
If several open source licences are combined in a project, a compatibility check is usually required. Some copyleft licences exclude the use of code that is covered by other licences. On a technical level, however, it must be clarified in advance whether a combination exists at all in terms of licence law. The criteria for this differ depending on the licence, but are relatively strict in the case of the widely used GPL.
If there is a combination in the sense of one of the copyleft licences, incompatibility of the licences is the rule. Both copyleft licences generally require that the edited product is published under their respective licence. An exception only applies if one of the licences also permits publication under other licences.
The final step is to check whether a permissive licence contains an obligation that would oblige the user to violate the provisions of the copyleft licence. While the combination of several permissive licences with each other is unproblematic,
Licences without a copyleft effect (permissive licences) can be linked together without any problems.
Summary
Open source software is indispensable in software development, but requires careful legal scrutiny in order to assess and avert the risks identified. Thanks to our experience with a large number of successful IT projects, we can provide you with comprehensive advice, from the conception phase and distribution through to the sale of software as an asset deal or in connection with the sale of entire companies.