Understanding Open Source Licensing: Risks, Benefits, and Implications for Intellectual Property

Open-source licensing has existed since the late 1980s and early 1990s, when the Free Software Foundation introduced the concept of “free software” and launched the GNU General Public License (GPL). Despite the long-standing use of open-source licenses for over two decades, businesses newly entering the software market struggle to consider which open-source license is best for them, particularly at the onset of software development.

Open-source licenses allow software’s source code to be freely accessible and adaptable. Open-source licenses ensure the freedom to share and change software, contrasting proprietary software licenses, which limit these freedoms. Two main categories of open-source licenses are ‘Permissive Licenses’ and ‘Copyleft Licenses.’

Permissive Licenses, like the MIT License and Apache License, are less restrictive, allowing software distribution under any terms and even incorporation into proprietary products without the entire product being open source. On the other hand, Copyleft Licenses, such as the GNU General Public License (GPL), are more restrictive. They require that any derivative works be licensed under the same terms. If GPL-licensed software is incorporated into a more extensive product, the entire product must become open-source under the GPL.

Different licenses come with different terms and conditions. For example, while the MIT License is very permissive and allows for reuse in any form, it does not offer an express grant of patent rights. The GPL 3.0 license, however, includes clauses to deal with software patents and tivoization. When businesses decide to use an open-source license, it is essential to understand its terms and conditions. Businesses should also consider their goals, the needs of the project, and the community they are targeting.

Please join us on Monday, March 4, 2024, where Jonathan Gutierrez, a law clerk at SoCal IP, will lead the discussion on open-source licensing and best practices for their use at our weekly SoCal IP Institute Meeting.