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Definitions Edit

Open Source Software (OSS) is

software for which the human-readable source code is available for use, study, reuse, modification, enhancement, and redistribution by the users of that software. In other words, OSS is software for which the source code is "open."
a computer program whose source code, or programming instructions, is made available to the general public to be improved or modified as the user wishes.[1]

History Edit

Open source first evolved during the 1970s. Richard Stallman, an American software developer who believes that sharing source-code and ideas is fundamental to freedom of speech, developed a "free" version of the widely used "Unix" operating system. The resulting "GNU" program was released under a specially created General Public Licence ("GNU GPL"). This was designed to ensure that the source-code would remain openly available to all. It was not intended to prevent commercial usage or distribution. This approach was christened "free software." In this context "free" meant that anyone could modify the software. However, the term "free" was often misunderstood to mean "no cost." Hence "open source software" was coined as a less contentious and more "business-friendly" term.[2]

Overview Edit

Open source software generally is distributed to the public pursuant to an open source license that requires users of the program to comply with specific contract terms that will insure that the open source software will remain open source. Those license terms generally require that the source code be distributed along with the software, and that others are allowed to modify and redistribute the source code as desired.

"Open source software is very often developed in a public, collaborative manner. Open source software is the most prominent example of open source development and often compared to (technically defined) user-generated content or (legally defined) open content movements."[3]

Some examples of open source software include the Linux operating system and Apache Web server software.

Proponents Edit

For proponents, open source software is often viewed as a means to reduce an organization’s dependence on the software products of a few companies while possibly improving the security and stability of one's computing infrastructure.

Proponents of open source software argue that it tends to be more secure (since security weaknesses cannot be hidden within proprietary programming) and more flexible (since it can be readily customized) at lower costs than commercial software products. They suggest that the lack of financial constraints leads to software that is "problem-oriented rather than profit-oriented" and that the lack of a commercial incentive to lock in customers to a particular program helps preserve market efficiencies over time.[4]

Opponents Edit

For critics, open source software is often viewed as a threat to intellectual property rights with unproven cost and quality benefits. In addition, open source software is ordinarily accompanied by a license that requires users to maintain the program as open source.[5] Some commentators have expressed concern that these licenses may overreach, converting proprietary programs into open source software even if only a portion of that program was derived from an open source originals.[6] Others have suggested that open source licenses may not be legally enforceable, which would allow users to obtain and assert intellectual property rights pertaining to software that was initially distributed as open source.[7]

Critics of open source software dispute the cost-effectiveness of such "free" software, countering that it demands more of IT staff and cannot be proven to be any less expensive to maintain than commercial software (for which 15 percent of the purchase price annually is a common estimate of maintenance costs). They also warn that the design of open source software may reflect the interests of the developers more than the needs of the users.[8]

Further, open source software is "usually developed through public (open) collaboration with the result that there may be little or no knowledge of the motivations or loyalties of many of its developers."[9]

Computer security Edit

So far there appear to be no systematic analyses available that have conclusively compared closed source to open source software on the issue of security. In practice, computer security is highly dependent on how an application is configured, maintained, and monitored. Similarly, the costs of implementing an open source solution are dependent upon factors such as the cost of acquiring the hardware/software, investments in training for IT personnel and end users, maintenance and support costs, and the resources required to convert data and applications to work in the new computing environment.

Consequently, some computer experts suggest that it is not possible to conclude that either open source or closed source software is inherently more secure or more cost efficient.

Intellectual property rights Edit

Intellectual property rights, including copyrights, patents and trade secrets, present another possible set of concerns with respect to open source software. Although a particular computer program may be designated as open source, it remains possible that an owner of intellectual property rights may seek to enforce those rights against open source software developers and users.[10]

In addition, open source software is ordinarily accompanied by a license that requires users to maintain the program as open source.[11] Some commentators have expressed concern that these licenses may overreach, converting proprietary programs into open source software even if only a portion of that program was derived from an open source original.[12] Others have suggested that open source licenses may not be legally enforceable, which would allow users to obtain and assert intellectual property rights pertaining to software that was initially distributed as open source.[13]

Alleged "viral" nature of open source software Edit

Certain open source licenses have sometimes been described as "viral" in character.[14] Some individual open source licenses require that the terms of that license apply automatically to each copy of the software, as well as to any modified versions.[15] Some observers have expressed concerns regarding situations where a programmer, perhaps unknowingly, incorporates some open source code into a larger software package. In these circumstances, the open source portion of the software could "contaminate" the entire program. As a result, even though the publisher intended that the program be proprietary, it may be instead be distributed as the open source license stipulates.[16] In this way, the open source software component would trump any intellectual property rights that the publisher hoped to claim.

Whether a particular open source software is potentially "viral" or not depends upon the individual terms of the accompanying open source license. Some commentators have stated that the Free Software Foundation's GPL is one example of a potentially "viral" license.[17] Under the GPL, anyone who uses or modifies the software must, upon further distributing that software or a modification of that software, make the source code fully available to the public, free of any proprietary interest. This limitation prevents the software written and distributed under the GPL from being subject to intellectual property rights. As a result, the GPL maintains the "open" nature of the open source code by allowing users to modify and redistribute the software, but requiring that such modifications be made available to anyone under the terms of the GPL.

Notably, under certain conditions the GPL allows users to incorporate open source-derived computer programs into proprietary software packages without subjecting the entire package to the GPL.[18] According to the Free Software Foundation, in order to avoid the imposition of the GPL upon the entire program, software publishers "must make sure that the free and non-free programs communicate at arms length, that they are not combined in a way that would make them effectively a single program."[19]

The Free Software Foundation offers as an example the combination of an editor program and a shell program.[20] To expand upon this illustration, suppose that an editor program executes textual commands typed by the user. A shell, or user interface program, might provide a graphical, menu-driven interface so that the user doesn't have to memorize the text commands. The editor could be a proprietary program. The shell might have been developed for individuals who did not wish to learn the text commands, and distributed under the GPL. As the editor can work independently of the shell in this example, the proprietary nature of the editor would be maintained even though the shell was subject to the GPL.

The functional separation of proprietary and open source software provides one avenue for avoiding the broad application of an open source license to an entire software product. Some observers believe, however, that conformity with this exception imposes substantial compliance burdens. For example, attorneys James A. Harvey and Todd S. McClelland state:

It is therefore a good practice to advise clients with respect to procedures designed to segregate software that can be licensed as proprietary from that which must be distributed under an open source license. Developing and maintaining procedures to implement these administrative tasks can be very difficult in complex development environments.[21]

Views differ on the supposed "viral" nature of some open source licenses. Representatives of proprietary software firms have expressed concerns that "open source is an intellectual-property destroyer,"[22] and have reportedly referred to open source software as a "cancer" and "un-American."[23] Others believe that, in order for open source software to remain open to the public, all programs derived from an open source original should be treated as open source as well.[24] And, as noted above, some open source licenses take an intermediate position. Although these licenses require that the original software that is distributed with the license remain open source, they allow modifications and upgrades to that code to be "taken private" and be treated as proprietary software.

Third party infringement claims Edit

Some open source licenses, such as the General Public License (GPL), effectively prevent individuals from asserting intellectual property rights in open source software.[25] This restriction only applies to individuals who have consented to these licenses, however.[26] Parties not subject to that license are therefore not necessarily prevented from enforcing their intellectual property rights against individuals who use the software. As a result, even though one individual has distributed software that it has designated as open source, another entity may possibly assert that the software infringes an intellectual property right. Such assertions lead to potential conflicts between the intellectual property rights owner and individuals who believe that the software is open to the public.

For example, suppose that a computer scientist, Alpha, invents a new method of sorting data useful for computer programs. Alpha then files a patent application at the USPTO claiming the method. Later, a programmer named Beta independently writes a software program that uses the same data sorting method that Alpha had claimed in his pending patent application. Unaware of Alpha's patent application, Beta distributes his own software to the public under the GPL. If the USPTO approves of Alpha's application, Alpha could assert claims of patent infringement against anyone using Beta's software. These users would be subject to legal liability, even though the software was believed to be open source, and even though no one had knowledge of the patent infringement.[27]

This scenario is possible not only for open source software, but also for proprietary software. A software publisher may also discover that their products infringe a patent or other intellectual property. However, commercial enterprises may stand in a better position to consider the intellectual property ramifications of their published software than the more diffuse open source community. Such enterprises often perform audits or establish procedures to avoid the use of other's software in their own products.[28] Members of the more loosely organized open source community may have less capability to engage in these sorts of efforts.

U.S. federal government Edit

The use of open source software by the federal government has been gaining attention as organizations continue to search for opportunities to enhance their information technology (IT) operations while containing costs. For the federal government and Congress, the debate over the use of open source software intersects several other issues, including, but not limited to, the development of homeland security and e-government initiatives, improving government information technology management practices, strengthening computer security, and protecting intellectual property rights.

The official U.S. federal government policy regarding the use of open source software by government agencies is described in a July 2004 Office of Management and Budget (OMB) memorandum on software acquisition, OMB Memorandum M-04-16. The memorandum states that the policies guiding government information technology investment decisions are "technology and vendor neutral" and that agencies' technology choices "must be consistent with the agency's enterprise architecture and the Federal Enterprise Architecture."

Agencies are also instructed to take into account a number of other merit-based factors, including information security, licensing requirements, and total cost of ownership. Implicit in these requirements is an expectation that agencies will also make choices based on the quality of the product.

References Edit

  1. Internet: An Overview of Key Technology Policy Issues Affecting Its Use and Growth, at 27.
  2. POST Open Source Software, at 2.
  3. Project Open Data, Glossary (full-text).
  4. Improving Disaster Management: The Role of IT in Mitigation, Preparedness, Response, and Recovery, at 80.
  5. Natasha T. Home, "Open Source Software Licensing: Using Copyright Law to Encourage Free Use," 17 Georgia State Univ. L. Rev. 863 (2001).
  6. Christian H. Nadan, "Open Source Licensing: Virus or Virtue?," 10 Tex. Intell. Prop. L.J. 349 (2002).
  7. Dennis M. Kennedy, "A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and the Future," 20 St. Louis Univ. Pub. L. Rev. 345 (2001).
  8. Improving Disaster Management: The Role of IT in Mitigation, Preparedness, Response, and Recovery, at 80-81.
  9. Report of the Defense Science Board Task Force on Mission Impact of Foreign Influence on DOD Software, at 19.
  10. See James A. Harvey & Todd S. McClelland, "SCO v. IBM: The Open Source Benefits and Risks Are Real," 20 Computer & Internet Law., Sept. 2003, at 1.
  11. Natasha T. Home, "Open Source Software Licensing: Using Copyright Law to Encourage Free Use," 17 Ga. St. Univ. L. Rev. 863 (2001).
  12. Christian H. Nadan, "Open Source Licensing: Virus or Virtue?," 10 Tex. Intel. Prop. L.J. 349 (2002).
  13. Dennis M. Kennedy, "A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and the Future," 20 St. Louis Univ. Pub. L. Rev. 345 (2001).
  14. Christian H. Nadan, "Open Source Licensing: Virus or Virtue?," 10 Tex. Intel. Prop. L.J. 349 (2002).
  15. Robert W. Gomulkiewicz, "How Copyleft Uses License Rights to Succeed in the Open Source Software Revolution and the Implications for Article 2B," 36 Houston L. Rev. 179 (1999).
  16. Christian H. Nadan, "Open Source Licensing: Virus or Virtue?," 10 Tex. Intel. Prop. L.J. 349 (2002).
  17. Thomas M. Pitegoff, "Open Source, Open World: NeBusiness," 11 Bus. L. Today, Sept.-Oct. 2001, at 52.
  18. See Free Software Foundation, "Frequently Asked Questions about the GNU GPL"(full-text).
  19. Id.
  20. Id.
  21. James A. Harvey & Todd S. McClelland, "SCO v.IBM: The Open Source Benefits and Risks Are Real," 20 Computer & Internet Law. 1 (Sept. 2003).
  22. Joseph Scott Miller, "Allchin's Folly: Exploding Some Myths About Open Source Software," 20 Cardozo Arts & Entertain. L.J. 491 (2002).
  23. Jonathon Krim, "Open-Source Fight Flares at the Pentagon; Microsoft Lobbies Hard Against Free Software," Wash. Post, May 23, 2002, at El.
  24. Daniel B. Ravicher, "Facilitating Collaborative Software Development: The Enforceability of Mass-Market Public Software Licenses," 5 Virginia J. of L. & Tech. 11 (2000).
  25. Ira V. Heffan, "Copyleft: Licensing Collaborative Works in the Digital Age," 49 Stanford L. Rev. 1487 (1997).
  26. James A. Harvey & Todd S. McClelland, supra.
  27. Id.
  28. Id.

Source Edit

External resources Edit

  • Yochai Benkler, "Coase's Penguin, or, Linux and The Nature of the Firm," 112 Yale L.J. 369 (2002) (full-text).
  • Dennis Kennedy, "A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and Copyfuture" (full-text).
  • David McGowan, "Legal Implications of Open-Source Software," 2001 U. Ill. L. Rev. 241 (2001) (full-text).
  • Greg R. Vetter, "The Collaborative Integrity of Open-Source Software," 2004 Utah L. Rev. 563 (2004) (full-text).

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