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GUEST COMMENTARY


Sept. 9, 2002 | THE OPEN SOURCE MOVEMENT
has gained significant momentum of late, particularly within the bioinformatics field. While open source licenses vary widely, distribution of open source software typically requires delivery of both the object code and the source code. Most commercial software is delivered only in object code form, which is not easily read and modified by programmers.

The legal foundation for open source licenses rests primarily on the pillars of U.S. copyright law, which grants a copyright owner the right to prevent others from copying, modifying, or redistributing the software. In contrast, open source licenses permit users of open source software to do just that — copy, modify, and redistribute the software. In exchange for these rights, open source users must agree that if they modify and release the open source software, they will do so under the same or similar license terms. In theory, this benefits all users by facilitating peer review, error correction, and enhancement of the software. Data and other output generated through the use of open source software is not subject to the open source license and may be freely sold or licensed.

Most open source licenses do not require that you redistribute the software (some licenses

To Use or Not to Use 
Factors in deciding whether to use or release software under an open source license, according to Gatto:

Nature of software — Is it infrastructure or an application? Is it an original work or a modification? Is there significant IP protection available?

Potential ability to commercialize/license — Does it have independent commercial value?

Where's the value — The software itself or output (e.g., data)?

Benefits vs. potential liabilities 

Potential impact on other software — Does this software incorporate proprietary software that may be adversely impacted?

Which open source license(s) are you dealing with? 

require that you disclose errors and any consequent fixes). In most cases you may use it or modify it freely for your own use, without obligation to disclose the modifications or redistribute the software. If you choose to release the modifications, then you must typically do so under the terms of the original license (i.e. with the source code).

Open source licenses come in many varieties. The GNU GPL license is among the most open, providing some of the most extreme benefits and drawbacks, depending on your perspective. Other licenses such as the BSD and Sun Community Source License try to strike a better balance. If you intend to develop software, distribute software, or both under an open source license, it is essential to read and understand the license. Failure to do so can have unexpected consequences. For example, the QT license is governed by Norwegian law, and all disputes are resolved in the City Court of Oslo.

Many open source programs are platforms or "infrastructure" programs that enable collaboration or access to various databases. In some cases, proprietary applications are used with open source platforms to process or analyze data retrieved using the open source program. Applications usable with open source programs can remain proprietary under certain circumstances. However, combining or linking proprietary software with your source software can subject the proprietary software to the open source license.

There is a false perception that open source software cannot be patented. Some open source licenses preclude proprietary licensing (presumably including patent licenses) to users of open source software, but this does not prevent developers from obtaining patents on novel features, functions, algorithms, and so on. Under some open source licenses, such patents may not be enforceable against downstream users, although some licenses expressly permit patent enforcement. In all cases, if another entity develops software with those patentable features using proprietary software, the patent owner can enforce the patents against that entity.


Benefits and Risks 
Some notable open source software benefits include access to source code and the freedom to modify or customize software for specific needs and redistribute the software. The broad community of developers permits peer review and enhances reliability by facilitating identification and correction


Open source licenses come in many varieties. If you intend to develop software, distribute software, or both under an open source license, it is essential to read and understand the license. Failure to do so can have unexpected consequences. 
of bugs or others errors. It is often cheaper than commercial software — in many cases it is free. There are potential drawbacks, however. For companies selling software, these include the requirement to disclose source code for software and modifications, and authorization for third parties to create derivative works.

Use of the software occurs with various risks. Open source software licenses expressly disclaim all warranties — the software is distributed as is. If the software does not work, or worse, causes damage, there is no recourse. If many developers modify the software in incompatible ways, "forking" of the software can occur, resulting in inconsistent versions of the software that cannot be consolidated, and for which there is often no technical support. Additionally, a number of open source projects have become defunct, for example the BioXML project. Another drawback is the potentially limited ability to commercialize the software and IP. Open source licenses do not prohibit the commercialization of research efforts or exploitation of IP — but may significantly impact the value.

Open source software licenses disclaim liability for patent and copyright infringement. A party that develops or modifies an open source program might not have the right to convey a license to use the software. Perhaps the developer illegally or inadvertently used third-party proprietary software in the program, or failed to obtain ownership of the code and the related copyrights or patents ("IP Rights") from an employee or contractor that worked on the program. These and other scenarios can lead to potential IP claims against users or subsequent modifiers of the software. Under commercial software licenses, a user often obtains a warranty or at least an indemnity against IP infringement claims.

The decision of whether to use open source software requires a careful analysis of various factors. In the right situations, open source software can be an excellent choice. In other cases, it can be disastrous. *



Jim Gatto is a partner with the law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC.







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