NAVIGATING THE OPEN SOURCE MINEFIELD: WHAT’S A BUSINESS TO DO?

10 Wake Forest Intell. Prop. L.J. 289

It goes without saying that computers and the software programs that run on them permeate virtually every aspect of our professional and personal lives. For many years, software developers licensed their software products pursuant to a regime designed to vigorously protect the developers’ proprietary intellectual property rights in those products. Licensing software in object code form only and contractually prohibiting access to and use of the source code of such products – i.e., a “closed” source licensing approach – have been and continue to be hallmarks of that regime.

In recent years some software developers have adopted a different approach to licensing software, which permits licensees to not only access the software source code but also reproduce, distribute, and even modify the source code with a view to providing more opportunities for enhancing the software’s capabilities and correcting its shortcomings. This new approach has caused a good bit of confusion, and resulting consternation, among organizations that rely in any way on software in conducting their businesses. The most often asked questions are: does (or should) the organization use any open source software in its business? If the organization does use (or plans to use) such software, what steps, if any, should be adopted and implemented to maximize the benefit, while managing the risk, associated with such software?

These rather open-ended questions hopefully will come into sharper focus by the time we reach Part III of this article, at which time we will address them head-on. With that objective in mind, this article sets out to (1) explain, from both legal and business perspectives, the traditional (i.e., “closed” source) model of licensing computer software and the “open” source licensing model, (2) identify the common ground and highlight some of the more important differences in the two models, (3) comment on the ongoing viability of the open source model as a licensing methodology, and (4) provide information that a business can use to assess whether open source software meshes well with the business’s goals and objectives.