No free lunch

Nothing in life is really free, says Larry Rosen, and that includes open-source software. As open-source gains traction in business, it's increasingly important to understand the licenses under which it's used. Rosen, who formerly taught programming and database design at Stanford University, is also a founding partner of Rosenlaw & Einschlag, a technology law firm in California, and the author of Open Source Licensing: Software Freedom and Intellectual Property Law (Prentice Hall PTR, 2004). He talked with Computerworld's Kathleen Melymuka about rights and obligations under open-source.

As an IT manager, why do I need to know or care about open-source licensing? Because you or your company is, or soon will be, using open-source software.

I never realized that licensing was even an issue in open-source. Why do I need a license for something that's free? Because of the problem with the word free. It means too many different things in the language. Birds are free to fly. Is open-source software free in that sense?

Then what does it mean? It means you are given the freedom to do certain things with the software -- things like use it, copy it, change it, combine it with other stuff. Because of that, what's important is the license under which those freedoms are protected.

What are the key things to look for in an open-source license? What you need to look for is "What am I being licensed to do?" and "What are the conditions that I'm accepting when I take that license?" And therein lies a tale.

Are there any deal-breakers I need to really watch out for? What you need to look out for is what you give up. What are the conditions, because nothing is really free in life. What you have to give up can be expensive. It depends on the license. You may have an obligation to expose your own source code, take a risk, distribute it under the same license. It's not just free.

Can you give me an example of something that might catch a company by surprise? The one that most people are concerned about is if you create a derivative work and distribute it, you're required to disclose your changes and distribute it under the same [open-source] license.

Then I can't use open-source and customize my own software? You can. For internal uses, it's your business. But if you choose to share it with some other company, your obligation under some licenses is to make it available under the same license.

So I can't sell it? No. That's what people think. You can try to sell it, but if you're required to distribute it under the same license, that license allows people to make copies for free, so you have to tell them they can also have it for free.

What is the General Public License and why should I care? The GPL is the archetype, the first and best and most popular and most influential of all open-source licenses. It is the license under which Linux is distributed and many other software packages that are extremely important in open-source. About 70 percent of all open-source is licensed under the GPL. So it's important to understand it and its legal effects, its strengths and its weaknesses.

Your book has a section on litigation. Why would anyone sue over free software? People sue over intellectual property because it is property and because the stakes are so high and because the legal constructs are not black and white, and so licenses get interpreted and side agreements get made between companies. Lawsuits are usually by people who don't want it to be free -- who want to lock it back up again. As open-source becomes successful, people are going to want to try to make it proprietary, to claim ownership over things they don't have rights to. People will sue over what they have sued about since the first case: money and property.

Intellectual property

There is much more to software than the disk it comes on. As one California court wrote in 1948, property is a very broad concept that includes not only the tangible but also "every intangible benefit and prerogative susceptible of possession or disposition." Computer software is this kind of intangible property because, under the law, it comes with specific but intangible benefits and prerogatives that can be separately owned and disposed of.

Software is a product of human intellect, and therefore it is a kind of intellectual property. Intellectual property is a valuable property interest, and the law allows its owner to possess and control it. The programmer who writes software -- or the company that hires that person to write software -- is deemed to be the first owner of intellectual property embodied in that software. That owner may exercise dominion over that intellectual property. He can give it away, sell it or license others to use it. That owner has the prerogative to create copies of the intellectual property, and he or she may prevent others from making, using or selling those copies.

Because of these partly tangible and partly intangible aspects of computer software, it is possible to have different owners own (1) a tangible copy of software purchased at a computer store or downloaded from a Web site, and (2) the intellectual property embodied in that software.

Never confuse these two aspects of intellectual property, for the laws apply differently to each.

Excerpted with permission from Open Source Licensing: Software Freedom and Intellectual Property Law. Copyright 2005 Lawrence Rosen (Prentice Hall PTR, 2004).

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