Intellectual Propery, Computer Software and the Open Source Movement

Publication Date: March 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics

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Abstract:

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 these stipulations are that the source code be distributed along with the software, and that others be allowed 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 software manufacturer.

Some concerns have arisen concerning the relationship between open source software and intellectual property rights, including copyrights, patents and trade secrets. Although a particular computer program may be designated as open source, it remains possible that an owner of intellectual property may enforce its rights against open source software developers and users. Some commentators have also expressed concern that open source 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. 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.

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 of contemporary software policy. The possibility of intellectual property rights, and their attendant license fees and royalties, may provide a significant incentive for firms to innovate and to distribute software. However, some proponents of open source software believe that these incentives are unnecessary, and further hope to maintain a non-proprietary environment of software distribution and 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 is deemed satisfactory, particularly as software publishers become increasingly aware of intellectual property and as judicial precedents may make the legal situation clearer. Congress might also assist individuals in identifying intellectual property that pertains to software that has been identified as open source; speak to the enforceability of open source licenses; and, as a possible more far-reaching legal reform, allow proprietary software publishers a grace period for removing portions of program code that derived from an open source original.