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You are probably hearing and reading more about the Linux operating system these days and how it presents a challenge to Microsoft’s dominance. You might have been among the 35,000 people expected to show up at the LinuxWorld Expo in New York this month, a trade show that used to be lucky to attract a few thousand attendees several years ago. When lawyers talk about Linux, the conversation inevitably drifts to the open-source licensing scheme that distinguishes Linux and other open-source software from closed-source programs like those made by Microsoft. With the popularity of open-source growing, businesses and their lawyers face new intellectual property challenges. What is open-source? The term refers generally to software released under a variety of different public licenses including the GNU general public license, often called the GPL, and the Mozilla public license, among others. The GPL and other open-source licenses like it are important both for what they allow and what they restrict. In general, open-source licenses allow free access to the source code of software (the line-by-line computer instructions), but restrict the republication and revision of that software except under the terms of the license. One misconception of open-source software is that it is free. While open-source software is often available at no cost, to open-source developers the term “free” means that the source code is freely available. This is not true of closed-source software. To many in the open-source community, buying closed-source software is like purchasing an automobile with the hood welded shut. Open-source software lets you look under the hood at the source code that makes the program tick. Another misconception of open-source software is that it is better or safer than proprietary software. In fact, there were more security vulnerabilities discovered last year in Linux than there were in Windows. Probably the most distinguishing characteristic of open-source software is its collaborative development model. The Linux operating system is the best-known example of this, but there are lots of others. You may even be running open-source software on your computer. For example, the Mozilla browser, the core of the Netscape Web browser, is an open-source software application. Many Web technologies and several databases are also open-source. Access to source code means that you are free to see not only how a program works but to modify it so it works better for you. Of course, with greater access comes greater responsibility. Most open-source licenses, like the GPL, have strict requirements for those who modify and then republish software. Since the point is to always make sure you can look under the hood, the GPL and other licenses like it grant the licensee the right to distribute modifications to the software only if the source code in its modified version is made available under the same terms as the license it came with. Businesses that modify open-source software and then sell the result need to pay close attention to this requirement. For example, if a developer modifies open-source software and then sells that software without making the source code available he could be in violation of the GPL. To make things more confusing, sometimes developers create a software package consisting of separate programs, some open-source and some proprietary, that work together. Whether the source code for the entire package needs to be released may come down to the level of integration. For example, my company, Cylant, makes a security software package for Linux. To lock out hackers, we modify the Linux source code by adding sensors to it. To comply with the GPL, we make the source code containing our modifications freely available to anyone. A separate component of our software package analyzes sensor readings and stops malicious hackers in their tracks. This is the closed-source technology that is proprietary to Cylant. Because we are able to draw a clear dividing line between the open-source software we modify and republish and the closed-source software we consider proprietary, we can redistribute both without exposing the formula for our secret sauce to the world. Be forewarned: The division between open-source and closed-source software components is not always so clear cut. With many software applications, it may be difficult to separate the open-source components from the closed-source components. This makes determining whether a software program complies with an open-source license extremely difficult. The consequences for violating the license agreement, even one that protects open-source software, can be serious. Violating an open-source license could be met with a copyright infringement action, breach of contract claims, or both. Up until now, the Free Software Foundation, the organization that polices certain open-source licenses including the GPL, has exercised restraint. So far there have been no reported cases where the foundation has brought an action against software developers for copyright infringement or breach of the GPL. However, with more and more software developers reusing open-source code for proprietary purposes, this is sure to change. What to do? An open-source license compliance review by a knowledgeable attorney who can “speak geek” with software developers is an important first step. Another possibility is a review by an organization like the foundation that, for a fee, analyzes software and licensing agreements for compliance with the GPL. More information on this is at www.fsf.org. Depending on the economics involved, a foundation review could prove very valuable if there is a lucrative market for your client’s software. With more and more businesses marketing software with open-source roots, money spent on open-source license compliance may be a wise investment. Joel Rothman is vice president and general counsel of security software company Cylant. He welcomes questions or comments at [email protected]or (561) 989-9770. If you are interested in submitting an article to law.com, please click herefor our submission guidelines.

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