As a general rule, law is slow to keep up with business. Innovative, quickly changing businesses, like those involved in technology, sprint even faster and farther ahead of the intellectual property laws that govern those businesses. So it comes as little surprise to see this rant about source code licensing covered by and commented on by the staff at Open Source Initiative.
To sum up, the rant is by Tom Callaway of redhat, who found all sorts of problems with a 1985 source code license for afio, including that the original license terms do not make sense under current well-accepted licensing guidelines; the afio license was later, apparently without any authority, picked up and redefined by an unknown source; and it would be futile, if not impossible, to figure out who even owns the copyrights because that information was lost somewhere between 1985 and today.
Open Source Initiative’s commentary on the rant points out how each of these problems can quickly multiply as time passes, and users and modifications of the original work grow in number.
Tom’s problem is that every legal problem with every license in supposedly free/open source software is a problem that is multiplied by the thousands of packages … [that] themselves become new works in new applications, configurations, and distributions. His rant is instructive because it shows that licensing matters, and that good licensing matters a lot.
We absolutely agree. Companies that adopt and use open source code in their products must know who owns the original copyrights to the code, what rights have been freely distributed (under what license), and how those rights may be used to build new products. You could call it open source due diligence, I suppose. Otherwise, the risk is building a product on unclear or nonexistent legal grounds.
There was little if any law governing source code property transfers in 1985 when this piece of code was written, so the drafter had few legal resources. Fortunately, resources have grown for buinesses, like the Open Source Initiative and Free Software Foundation, as well as for we lawyers, like the upcoming Stanford IP Litigation Clearinghouse, which we covered in this recent post. Let’s hope these resources continue to grow — and, of course, let us know if you hear of any related developments.
Tags: Intellectual Property, license, open source, technology
