Decision: Open Source Developers Protected
Open source software is unquestionably the modern foundation for much important and even artistic collaborative work product. Put simply, really great and diverse software is developed through the open source process that could not be otherwise achieved.
But as open source development advances in its scope and reach, inevitable questions arise as to the rights and responsibilities of the original author, i.e., the original developer and copyright holder.
Foremost among those questions are these: Can a software developer submit his or her code (copyrighted material) to open source availability and yet use the license he or she offers for that code as a means to maintain control over how that code is distributed and modified in the future?
And if the answer to that question is “yes,” where a subseqent software developer does modify and utilize the original developer’s code in a manner contrary to the applicable open source license, does the original developer have all the remedies available under a copyright infringement claim (because the terms of the license are seen as limiting the scope of the copyright authority granted) – or is the original developer limited to a breach of contract claim (because the terms of the license are seen as not limiting the scope of the copyright authority granted)?
The U.S. Court of Appeals for the Federal Circuit has answered these important questions. In its August 13, 2008 decision, the Court determined that “Copyright holders who engage in open source licensing have the right to control the modification and distibution of copyrighted material.” The Court also determined that, where a subsequent developer violates the terms of the open source license, the original developer can assert a copyright infringement claim (because the terms of the license limit the grant of copyright authority) and is not limited to a breach of contract claim.
The ramifications of this decision are significant. An original open source software developer can take greater comfort in his or her ability to control the original work product and its subsequent uses, and thus pursue creative and economic goals with less fear of competitors “taking a short cut” to the same or more advanced software (i.e., matching the original developer’s work product without the investment of time and labor, and then maybe adding some bells and whistles). A subsequent open source software developer must exercise great care, including potentially utilizing legal counsel, to ensure that his or her work product reconciles to the terms of the open source license at issue.
