Open Source Licensing - What You Need to Know


  • Craig Buchek
    • Chair of St. Louis LUG for many years
    • BoochTek, LLC - web development


  • I Am Not A Lawyer
  • This is not legal advice

No License

  • Copyright law applies
  • You can use it if you have a copy
    • If you've purchased it
    • If you are given a copy legally
  • You cannot give a copy to anyone
    • Except to sell your single copy (first sale doctrine)
  • You cannot make copies
    • Except for archival/backup purposes
  • You cannot copy (substantial) portions
  • You cannot make modifications
    • Not 100% clear if you can make modifications to your own copy
  • Section 106 defines exclusive rights
    • To reproduce the copyrighted work in copies
    • To prepare derivative works based upon the copyrighted work
    • To distribute copies of the copyrighted work to the public
    • To display or perform the copyrighted work publicly
  • Sections 107-122 define exceptions and limitations
  • Section 107 defines Fair Use doctrine
    • Reproduction for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement
  • Section 109 defines First Sale doctrine
    • You can sell your copy, but not lend it or rent it out (except non-profit libraries and schools)
  • Section 117 defines limitations for computer programs
    • It is not an infringement for the owner of a copy of a computer program to make another copy or adaptation of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine

Fair Use

  • Fair Use rights are quite vague
  • Section 107 lists fair uses:
    • Criticism, comment, news reporting, teaching, scholarship, or research
  • Section 107 lists factors to be considered in determining fair use:
    • Purpose and character of the use, including whether such use is of a commercial nature
    • Nature of the copyrighted work
    • Amount and substantiality of the portion used
    • Effect of the use upon the potential market for or value of the copyrighted work

Using Software

  • Not covered by copyright
    • Except the temporary copies, which are excepted in Section 117
  • Likewise, reading (using) a book is not covered by copyright
  • Commercial licenses often require you to give up some usage rights
    • Although you could use it without agreeing to EULA - maybe?
  • Free / Open Source licenses NEVER require you to give up usage rights
    • They often don't even mention usage, since you don't NEED such permission

Free Software Definition

  • The freedom to run the program, for any purpose (freedom 0).
  • The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
  • The freedom to redistribute copies so you can help your neighbor (freedom 2).
  • The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

Open Source Definition

  • Similar in purpose (and implementation) to Free Software Definition
  • Free Redistribution
  • Source Code
  • Derived Works
  • Integrity of The Author's Source Code
  • No Discrimination Against Persons or Groups
  • No Discrimination Against Fields of Endeavor
  • Distribution of License
  • License Must Not Be Specific to a Product
  • License Must Not Restrict Other Software
  • License Must Be Technology-Neutral

Open Source v. Free Software

  • Free Software emphasizes freedom
  • Open Source emphasizes low cost, flexibility, control
    • Term was created to market Free Software
  • Freedom and control are 2 sides of the same coin
  • Other similar terms
    • Software Libre, Libre Software
    • FOSS
    • FLOSS
  • I will use the terms interchangeably

Open Source Licenses

  • Many exist
  • Most programs use one of a small subset
    • GPL, LGPL
    • BSD, MIT, Apache


  • GNU General Purpose License
  • Read it - REALLY
  • Written in fairly readable English
    • Not too much legalese
    • Easy enough for non-lawyers to understand

GPL - Read It

BSD License

  • Berkeley Software Distribution
    • From BSD UNIX
    • University of California, Berkeley
  • Several variants
    • 4-clause (old, obsolete, had to recognize UCB)
    • 3-clause (new standard)
    • 2-clause (removes clause about endorsement)

BSD License - Read It

Other Licenses

  • LGPL - like GPL, but allows linking to non-GPL code
  • MIT - basically the same as 2-clause BSD
  • Apache License - similar to BSD license
  • Artistic License - most lenient, but vague
  • Sun, IBM licenses

Public Domain

  • Not a license, per se
  • Government works
  • Works whose copyright terms have expired
  • Controversy whether you can explicitly make something public domain
  • Author has NO rights to the work

Shared Source

  • Microsoft's attempt to blunt Open Source
  • Didn't work too well - doesn't grant enough to be useful
  • Microsoft now has 2 OSI-approved licenses
    • MSPL, MSRL
  • Microsoft now using a few Open Source licenses for some things

Using Code

  • When using other code within your own, you create a derived work.
  • Must have some sort of permission to create the derived work.
    • Or to make copies of the derived work, at the very least.
  • Must make sure you follow the license terms of the code you use.
  • For GPL licensed code, you must make your code GPL as well.
    • Unless you do not redistribute any copies.
  • For BSD licenses, you need not make your own code BSD.
    • Don't even have to make your code available.
    • For practical reasons, most people contribute back.

Combining Licenses

Not Just For Code

Creative Commons

  • "Some Rights Reserved"
  • Recognizes importance of shared cultural artifacts
    • Creates a "commons" of creative works that can be used by others
    • Makes it easier to share and build upon the work of others
  • Provides licenses you can apply to your copyrighted works
    • Takes copyright laws into consideration

Creative Commons Licenses

  • Mix and match to fit your goals
    • Require attribution
    • Optional restrictions on commercial use
    • Optionally allow modifications
    • Optionally require modifications to be shared

Infringement Penalties

  • Actual damages
  • Potential for punitive damages, if you intentionally keep violating copyright
  • Potential for statutory damages
    • Only if registered with US Copyright Office within 3 months
      • Also establishes prima facie evidence of ownership
  • Injunction preventing you from distributing potentially infringing code
  • Profits you've made from the infringing material

Other Issues

  • Trademark
    • Applies to names and phrases
  • Patents
    • Applies to inventions, methods, processes
    • Software patents are a legal minefield
    • Recent rulings have lessened scope of some patents


  • Using FLOSS has no restrictions/requirements
    • But commercial software usually does
  • You must follow terms of copyright law and licenses
    • If you distribute copies or make modifications
  • Open Source licenses give you additional rights
    • Commercial EULAs take rights away
  • GPL requires derivative works to remain free/open under GPL
    • BSD-like licenses allow use in closed commercial works

Shorter Summary

  • If you're just using Open Source - no worries
  • If you're just distributing unmodified Open Source - no worries
  • If you're distributing modified Open Source with source code - no worries
  • If you're mixing Open Source with proprietary extensions - talk to a lawyer
    • Unless the Open Source code is BSD or MIT, then just ensure proper attribution

Further Exploration

  • Read the licenses - GPL, BSD, Microsoft EULAs
  • Read the copyright laws
  • Check out the materials


Presentation Info