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Compliance in Permissive and Reciprocal Open Source Licenses

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Title: Compliance in Permissive and Reciprocal Open Source Licenses
Author(s): Ryynänen, Kalle Elias Markunpoika
Contributor: University of Helsinki, Faculty of Law
Discipline: Commercial law
Language: English
Acceptance year: 2014
Open Source licenses are a set of licenses that follow certain predefined rules that allow the software to be freely copied, modified and distributed further. Open Source licenses are based on the copyright holders exclusive right to permit others to use the software. In this thesis the focus has been on researching the compliance requirements of Permissive and Reciprocal Open Source Licenses as they impose certain requirements for the user and distributor of open source software. The research question has been to solve what requirements the user of open source software is imposed to and what risks might arise from the use of Open Source Software. The relevance of software licensed under Open Source Licenses is gaining more traction and as a result the economic value is rising. Open Source Software development is an integral part of the current software business and its role is getting more and more important. In addition, the role of software and its legal framework will increase in the information based society. The thesis has been written from an Open Source Software user’s point of view who distributes Open Source Software. As Open Source Software has a multijurisdictional aspect due to the fact that it is based on the internet the thesis has been written from the viewpoint of Finnish and US legal systems. Method has been both comparative and dogmatic legal research. Main legal literature is composed out of Anglo-American and Finnish works. The main types of licenses researched compose out of Permissive and Reciprocal licenses. Permissive Open Source Licenses do not impose significant restrictions for the user of Open Source Software. Reciprocal requirement in the Open Source License imposes a requirement for the user to make available the source code of the modifications made to the source code licensed under a reciprocal license that is distributed further. Most of the Open Source Licenses and all of the ones covered in this thesis contain an attribution requirement. The previous requirement imposes an obligation to the user distributing OSS to attribute the original copyright holder of the software. In Jacobsen v. Katzer case addressed in the thesis the attribution requirement was one of the focus points. The Court of Appeals for the Federal Circuit (CAFC) held in 2008 that the original copyright holder must be acknowledged according to the Open Source License. Open Source Licenses might have terms and conditions that are in conflict with other open source licenses. In this thesis three different incompatibility situations are recognized; i) a situation where a user combines source code licensed under an open source license with proprietary code and further distributing this software under a commercial license ii) a situation where many open source components with different open source licenses are used in a software product licensed further with an open source or commercial license iii) a contributor contributing to an open source project with possibly a different license than that of the open source project. A dual-licensing model inherent to open source licenses is presented as a solution model for conflict situations. In addition, assignment of copyright to the open source project is a solution for avoiding the obscurity of ownership of the code in the project. Some open source licenses grant explicit patent licenses, some do not mention patent grants at all. It is argued in this thesis that the risk for a patent infringement in open source is low. However, it is recognized that the mere risk of an infringement claim is a factor that contributes to the obeying of the patent grants in open source licenses. Open source development is based on a community model where individuals participate to open source projects. Observing the open source licensing framework from only a pure positive legal setting would inevitably fall short. Hence, the role of community norms are recognized as important to understand as conflict situations are dealt within the community. Moreover, the different interest groups within the open source community advocate for different ideological viewpoints concerning the open source licenses. This effects on how the open source users use the open source software. In addition, different advocates will write new versions of the existing licenses and implement their viewpoints to the new versions of the licenses.

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