Open Source Software: Your Company's Legal Risks

I felt a bit slimy posting to Linux insider, but to me this is the worst kind of FUD. The article states the truth, but in a way that makes it seem like it is Open Source licensing that is going to make businesses spend hard earned cash on monitoring their use of other people's copyrighted works.

Here is my post:

The situation you are describing is hardly unique to companies that might use and re-distribute open source software. This should already be normal business practice for just about every company in existense.

You can pretty much sum up your article by saying: "If you want to re-distribute any copyrighted material you must follow the license of the copyright holder."

For some reason many people think open source software is somehow odd or different when you are talking about copyrights. its probably more accurate to think of closed source software as the oddity when thinking about copyrighted material.

For centuries all copyrighted material has been 'open source', although that term was not used. There was almost no difference between the copyrighted material and its delivered form. Stories, Newspaper articles, movies, music and pictures are all forms of copyrighted materials. When you read a book by Stephen King, you actually get your hands on a copy of his 'source code'. You don't just get to read the synopsis on the back cover. You get the entire story.

If you try to re-distribute Mr. King's copyrighted work without the permission of the copyright holder, you will be in violation of copyright law.

The same holds true for music, movies and all other copyrighted works.

This is actually the purpose of the copyright. To protect the ownership of materials that are distributed publicly. There is the public domain, the copyrighted domain, and the secret domain.

Secret? Yes, as in trade secrets. Another way of protecting the ownership of material is to never publish the 'source'. A great example for trade secrets is the formula for Coca-Cola or the Colonel's 11 secret Herbs and spices. There are also algorithms used in business that are maintained as trade secrets, like Google's search algorithms.

Historically trade secrets were not copyrighted because they were not published and disseminated. It was up to the secret holder to keep the secret. AT&T inadvertently placed almost all of ancient Unix code in the public domain by failing to keep it secret and distributing it widely without copyright notice (pre- Berne convention).

Open source is like most copyrighted material that the corporate world is familiar with. Corporations know that they cannot use a Celene Dion song in an add campaign without the permission of the copyright holder. It does not matter if the CEO can hear the song in public every time they board an elevator, or that any musician familiar with the art could transcribe the notes for the song.

It is copyrighted material and they need the copyright holder's permission.

Those of us old enough remember when closed source software was in a kind of legal limbo. At one time you actually had to publish things with a copyright notice in order for things to be copyrighted. This changed with the ratification of the Berne convention in the mid 1970's. If we still operated under the old rules, Microsoft would have to publish their source code in order to get it copyrighted.

But now we actually have the weird situation where material that is never disseminated to the public in human readable format is still entitled to the same copyright protections as the more familiar copyrighted materials like books, music, poetry and open source software.

If a company fails to honor the license granted by the copyright holder in their use of that copyright holder's works, they are going to have to call in the lawyers. The fact that the material is 'open source' like a novel, or a poem is incidental.