Intellectual Property, Computer Software and the Open Source Movement (CRS Report for Congress)
Premium Purchase PDF for $24.95 (107 pages)
add to cart or
subscribe for unlimited access
Pro Premium subscribers have free access to our full library of CRS reports.
Subscribe today, or
request a demo to learn more.
| Release Date |
March 11, 2004 |
| Report Number |
RL32268 |
| Report Type |
Report |
| Authors |
John R. Thomas, Resources, Science, and Industry Division |
| Source Agency |
Congressional Research Service |
Summary:
The term "open source" refers to a computer program that is distributed along with a license, or
contract, that requires users of the program to comply with specified conditions. Among these
stipulations are that the source code be distributed along with the software, and that others be
allowed to modify the source code as they desire. In contrast, the source code of "closed source"
software is proprietary, not publicly distributed and subject to alteration only by the software
manufacturer.
Some concerns have arisen concerning the relationship between open source software and
intellectual property rights, including copyrights, patents and trade secrets. Although a particular
computer program may be designated as open source, it remains possible that an owner of
intellectual property may enforce its rights against open source software developers and users. Some
commentators have also expressed concern that open source licenses may overreach, converting
proprietary programs into open source software even if only a portion of that program was derived
from an open source original. Others have suggested that open source licenses may not be legally
enforceable, which would allow users to obtain and assert intellectual property rights pertaining to
software that was initially distributed as open source.
Striking a balance between promoting innovation, on one hand, and accommodating the
demands of software developers and users, on the other, forms an important component of
contemporary software policy. The possibility of intellectual property rights, and their attendant
license fees and royalties, may provide a significant incentive for firms to innovate and to distribute
software. However, some proponents of open source software believe that these incentives are
unnecessary, and further hope to maintain a non-proprietary environment of software distribution
and development.
Should Congress have an interest in this area, several options present themselves. No action
need be taken if the current relationship between open source software and intellectual property is
deemed satisfactory, particularly as software publishers become increasingly aware of intellectual
property and as judicial precedents may make the legal situation clearer. Congress might also assist
individuals in identifying intellectual property that pertains to software that has been identified as
open source; speak to the enforceability of open source licenses; and, as a possible more far-reaching
legal reform, allow proprietary software publishers a grace period for removing portions of program
code that derived from an open source original.
