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If your clients develop software, there is a good chance some of them use “open-source” software to do so. Whether your clients know it or not, using open-source software may require them to give away the fruits of their labor. Such magnanimity is laudable if intentional. If not, it can come as a rude and expensive surprise. The most well-known example of open-source software is probably the Linux (more properly called GNU/Linux) operating system, but many other open-source systems are extremely popular. For instance, Netcraft (www.netcraft.com) estimates that more than two-thirds of all Web sites are hosted using the open-source Apache Web server. Many open-source systems are used to develop software, especially for the Internet. Open-source software is generally available at low or no cost, comes with the human-readable source code (hence the name “open-source”) that allows users to understand and modify the software, and has very few restrictions on users’ ability to copy, modify and redistribute the software. Although the restrictions are generally few, it is important to understand them before expending significant resources on a project that may be affected by them. Perhaps the most significant common restriction is the requirement that works “based on” open-source software must sometimes be licensed to third parties at no charge. Not all open-source software comes with this restriction. In fact, open-source software is sometimes in the public domain, and therefore free of any copyright or other form of intellectual property protection. Like any other work in the public domain, public domain open-source software may be used as the developer sees fit, including to develop a proprietary derivative work based on the software that may then be copyrighted and distributed under whatever terms the owner of the proprietary product wishes. Typically, however, open-source software is not in the public domain. Instead, it is usually protected by copyright, and subject to one or more “open-source” or “public” copyright licenses. Any use of such copyrighted open-source software must therefore be in accordance with license or licenses. If not, it will infringe the copyright. ‘COPYLEFT’ While open-source licenses generally permit the development of derivative works, unlike the public domain (and many open-source licenses), some open-source licenses forbid owners of works based on licensed software from charging license fees for their works. This requirement is cleverly called “copyleft” by the Free Software Foundation, where the concept originated. Whether, and under what circumstances, software developers are required to give away a product developed with open-source software depends on the licenses associated with the open-source software used in development, the nature of the open-source software used, and how it is used. The most common copyleft open-source license is the Free Software Foundation’s GNU Public License, or GPL. Much of the software that makes up the GNU/Linux operating system is governed by the GPL. The copyleft provision of the GPL provides in effect that programs based on GPL-licensed software must be licensed at no charge under the terms of the GPL to all third parties if they are published or distributed. If GPL-licensed software is to be used in developing software that is not intended to be given away (with its source code), these requirements must be carefully considered. If copyright-protected — as alluded to below, the question of whether copyright-protected code is actually included in a work can be complex — GPL-licensed code is directly incorporated into a published or distributed product, then the GPL requires that the product itself be licensed at no charge under the GPL. Similarly, if the product is a derivative work of GPL-licensed code, as in the case where GPL-licensed code is modified to produce some part of the product, the product will likewise have to be licensed for free. On the other hand, using GPL-licensed software to develop a product often does not require that the product be given away under the GPL because the use does not cause the product to include any code within the scope of the copyright of the GPL-licensed software used to develop it. For example, using a GPL-licensed text editor to write software will not normally cause the software to include (or be derived from) GPL-licensed code. Therefore, under normal circumstances using a GPL-licensed text editor would not give rise to an obligation to give away a product written using the editor. SEPARATE DISTRIBUTION Likewise, if GPL-licensed software is used with, but not in any way incorporated into a software product, and the developed product is distributed separately, then the product need not be given away under the GPL. For example, a product that accesses a GPL-licensed server (e.g. a Web server or database server) would not typically infringe the copyright on the server simply by virtue of accessing it. However, if copyright-protected GPL-licensed code in the situations described above is distributed with the developed software as a part of a larger work, then the distribution would infringe the copyright on the GPL-licensed code and the GPL requires that the whole work be distributed under the GPL. The copyleft provision would then apply to the distribution as a whole, including the portion which does not, if distributed separately, infringe the copyright on the GPL-licensed code. For example, if a product is designed to be used with a GPL-licensed server, and is distributed with the server as a part of a larger work, the GPL requires that product and its source code be licensed without charge. This may be avoided by requiring users to download and install the GPL-licensed server separately, at the cost of increased installation complexity. In some circumstances, the question of whether a product actually includes copyright-protected GPL-licensed code can be hard to answer. Often, software is developed by linking original code to pre-existing code libraries. The human-readable source code for such software may include no derivative of the libraries with which it is intended to be used, and thus fall outside the scope of the GPL even if the libraries themselves are GPL-licensed. However, when the human-readable source code is translated by a compiler and linked to the GPL-licensed libraries, the resulting executable software may in some circumstances nevertheless include copyright-protected code from the libraries, and thus be subject to the GPL. In this situation, distribution or publication of the developed executable software would normally trigger the copyleft provision of the GPL, and the developed software would have to be licensed, along with its source code, at no charge. Whether the compiled and linked executable actually contains copyright-protected code depends on technical details and legal issues that are too complex to address fully in this article.For example, how the linking is done and the nature of the interfaces to the linked code must be considered. CAREFUL ANALYSIS Be aware, however, that any software that makes use of GPL-licensed software libraries may be subject to the GPL copyleft provisions, and that only a careful technical and legal analysis can establish otherwise. Absent such an analysis, it is safer to assume that software developed with GPL-licensed libraries will be subject to the GPL copyleft provisions. There are variants of the GPL, called the Library GPL or Lesser GPL (LGPL), specifically for certain widely used libraries that allow linking LGPL-licensed libraries to proprietary products under certain circumstances without requiring that the product be given away. Since the copyleft provision of the GPL applies only to software that is published or distributed, even software that directly includes copyrighted GPL-licensed code need not be given away if it is not published or distributed. This is a more generous allowance than it may at first appear. While it obviously means that software developed for purely internal use need not be given away, it also means that software can be used to provide services, even to the public, without implicating the copyleft provision. Using the Internet, software can be deployed on servers to provide services to the public without being published or distributed. For example, an e-commerce Web site may provide extensive services to the public, all using software that is never released outside the company that operates the site. Such a use falls outside the scope of the GPL copyleft provision, and such software need not be given away under the GPL. Unsurprisingly, copyleft provisions are controversial and frightening to many companies. In his book “Weaving the Web,” Tim Berners-Lee, the recently knighted inventor of the World Wide Web describes how he initially wanted to release his World Wide Web code under the GPL. Based on a fear that licensing issues raised by the GPL would inhibit large companies from adopting the World Wide Web, he decided to release it into the public domain instead. Similar reasoning has led to the widespread use of open-source licenses that do not include copyleft provisions. For example, the Apache Web server referred to earlier is distributed under an open-source license that does not include copyleft provisions. Generally, non-copyleft open-source software can be used in proprietary products without forcing the developer to give the product away. While this article has focused on copyleft provisions that require software to be licensed at no charge under certain circumstances, all open-source licenses include other provisions that should be carefully considered before using software within their ambit to develop a product. In this respect, open-source software is no different than any other software used in software development. Garland T. Stephens is a partner at Weil, Gotshal & Manges (www.weil.com) in New York. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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