Open Source Software Licenses

It is important to note that the term "open source" implies more than merely distribution of source code along with the object code. For example, the license might require that anyone whoredistributes the software also make the source code of that software publicly available. The relationship between innovation and intellectual property rights remainspoorly understood. As with patents and trade secrets, copyrights may be sold or licensed to others. (62)

	Potential Conflicts Between Open Source Software and Intellectual Property

Conflicts potentially arise between open source standards and intellectual property rights. (63) Some observers have expressed concerns that if open source software is incorporated into anotherwise proprietary program, then the terms of the open source license will apply to the entireprogram and defeat intellectual property rights that would otherwise exist. It is also possible that aparty not bound by the terms of an open source license may raise claims of intellectual propertyinfringement based upon the use of software that others believe to be open source. Representatives of proprietary software firms have expressed concerns that "open source is an intellectual-propertydestroyer," (74) and have reportedly referred to opensource software as a "cancer" and"un-American." (75) Others believe that, in orderfor open source software to remain open to thepublic, all programs derived from an open source original should be treated as open source as well. SCO is the current owner of the source code, as well as certainintellectual property rights, associated with a computer program known as UNIX. Validity of Open Source Licenses

No court has yet ruled on the enforceability of open source software licenses. (96) Some observershave suggested that these agreements may be invalid, however. (116)
More far-reaching legal reforms are also possible. The possibility of intellectualproperty rights, and their attendant license fees and royalties, may provide a significant incentive forfirms to innovate and to distribute software. On the other hand, some computer users believe thatthese incentives are unnecessary, and further hope to maintain a non-proprietary environment ofsoftware distribution and development. Striking a balance betweenpromoting innovation, on one hand, and accommodating the demands of software developers andusers, on the other, forms an important component of contemporary software policy.
The term "open source" refers to a computer program that is distributed along with a license, or contract, that requires users of the program to comply with specified conditions. Among thesestipulations are that the source code be distributed along with the software, and that others beallowed to modify the source code as they desire. In contrast, the source code of "closed source"software is proprietary, not publicly distributed and subject to alteration only by the softwaremanufacturer.
Some concerns have arisen concerning the relationship between open source software and intellectual property rights, including copyrights, patents and trade secrets. Although a particularcomputer program may be designated as open source, it remains possible that an owner ofintellectual property may enforce its rights against open source software developers and users. Somecommentators have also expressed concern that open source licenses may overreach, convertingproprietary programs into open source software even if only a portion of that program was derivedfrom an open source original. Others have suggested that open source licenses may not be legallyenforceable, which would allow users to obtain and assert intellectual property rights pertaining tosoftware that was initially distributed as open source.
Striking a balance between promoting innovation, on one hand, and accommodating the demands of software developers and users, on the other, forms an important component ofcontemporary software policy. The possibility of intellectual property rights, and their attendantlicense fees and royalties, may provide a significant incentive for firms to innovate and to distributesoftware. However, some proponents of open source software believe that these incentives areunnecessary, and further hope to maintain a non-proprietary environment of software distributionand development.
Should Congress have an interest in this area, several options present themselves. No action need be taken if the current relationship between open source software and intellectual property isdeemed satisfactory, particularly as software publishers become increasingly aware of intellectualproperty and as judicial precedents may make the legal situation clearer. Congress might also assistindividuals in identifying intellectual property that pertains to software that has been identified asopen source; speak to the enforceability of open source licenses; and, as a possible more far-reachinglegal reform, allow proprietary software publishers a grace period for removing portions of programcode that derived from an open source original.