Thursday, November 17, 2011

Open Source Software - the legal implications

I attended the recent BCS Manchester/Society for Computers and Law event on the use of Open Source Software and the legal implications. It was given by Dai Davis, an information technology lawyer who is also a chartered engineer, a very unusual combination but he clearly knew his material.

Dai started by explaining the basic aspects of copyright law and the implications that this
had on software. It was clear that some of the original purposes of copyright law (to prevent
copying) were applicable to software but that the period that copyright lasts (70 years after
the authors death) clearly made little sense for software. However a number of points caught my eye:
  • Copyright protects the manifestation and not the subject matter. This means that look and feel is not normally subject to copyright although fonts are.
  • Copyright infringement also includes translating the material. Translation in the software case includes compiling source code as well as rewriting the source code into another language.
  • Copyright protects copying some or all of the material. The amount does not normally matter.
  • Moral rights do not extend to software but do apply to documentation
  • Copyright infringement is both a civil and criminal offence with a maximum of 10 years imprisonment and an unlimited fine.
Dai then explained that the first owner (or creator) of the material owns the copyright. Misunderstanding this is the major cause of disputes about copyright. Clearly there are exceptions if the material is created in the course of employment (copyright rests with the employer) or if the contract under which the material is being created 'assigns' the copyright to the purchaser.

All software licences grants the purchaser permission to use the software otherwise the purchaser would be in breach of the copyright. Licences can be restrictive e.g. by time, number of concurrent users and all licences are transferable according to EU law.

Copyright of Open Source Software is no different to normal copyright of software but the approach to licencing is very different:
  • Nearly all OSS do not require payment to acquire
  • Free relates to restrictions on use (non-OSS can place restrictions)
  • Open access to source and usage is required (not normally available with non-OSS)
However, the licences are very difficult to enforce mainly because there has been no loss in terms of monetary value. There has never been a successful prosecution in the UK although there are a number of examples in Germany (where litigation is cheaper than the UK) and an example in the US (Jacobson v Katzer in 2009) where a 'token' settlement of $100000 was awarded.

Whilst there may be little prospect of getting sued for use of Open Source Software the biggest issue often comes when businesses are sold and OSS is found within a product - this often affects the eventual purchase price of the company. Many businesses don't know where Open Source Software is being used and included within its own products because it is very difficult to police and manage.

A video of the session was filmed by students from Manchester Metropolitan University the resulting video being made available via the BCS Manchester website.