Open Source Software Licenses
Open Source Software Licenses: A Primer on Third-Party Infringement Claims
The use of open source software1 has become more and more ubiquitous. In the third quarter of this past year, for example, 86.8% of all smartphones sold were equipped with the open source Android operating system.2 Moreover, as of December 2016, open source software powers over 50 percent of all web servers. 3 In light of this widespread usage, it is essential to understand who is liable for third-party intellectual property infringement claims against open source software.
Take for example the recent Oracle v. Google lawsuit, in which Oracle alleged that Google’s open source Android operating system infringed its intellectual property.4 As a result of this suit, Android users were at risk of waking up one morning to find that the use of their smartphone infringed on a third-party’s intellectual property. Who is liable in such a situation for losses incurred by open source software users as a result of a third-party lawsuit?
Any contract for the sale of goods includes certain implied warranties as to the quality and title to the purchased goods.5 Under the UCC, the warranty against infringement provides a guarantee on the part of the seller that the goods bought in a given transaction do not infringe the intellectual property rights of third parties.6 This warranty serves as an indemnification that allows the buyer to recoup from the other party any damages incurred as a result of an infringement suit.7 Unless disclaimed, the warranty against infringement latches on to every sale of goods in which the seller is a merchant who regularly deals in “goods of the kind.”8
As with proprietary software, open source software licenses categorically disclaim the warranty against infringement. However, while proprietary software providers generally assume the risk of infringement claims through contractual indemnity provisions,9 open source licensors typically refrain from assuming any such liability.
Open source licenses approach the issue of third-party infringements in a number of ways. Many licenses, such as the widely used GPL, MIT and BSD licenses, contain general disclaimers of all warranties, without explicitly specifying the warranty against infringement.10 Other licenses, such as the Apache License, address the matter directly with explicit language disclaiming the warranty against infringement.11
While most open source licenses are not willing to assume any risk for infringements, several more marginal licenses do provide licenses with a degree of protection. The Eclipse, Mozilla and Common Public licenses all contain representations in which the licensor represents that they have sufficient rights to grant the rights conveyed by the license.12 Similarly, the Academic Free License and Open Source License contain what they term a “warranty of provenance.”13 Under the “warranty of provenance” the licensor warrants that they have sufficient rights to license the work.14 However, as none of these licenses are used by more than 1 percent of open source software projects,15 the effect of such provisions is rather limited. Consequently, in the event of any third-party infringement action, the vast majority of open source software users must bear the costs of a such a suit themselves.
For the purposes of this post, the term “open source” is used as a generic term encompassing both “free” and “open source” software. These two terms differ on philosophical grounds but relate to the same concept of software licensing. For a discussion of the differences between the free software and open source movements, see Richard Stallman, Why “Free Software” is Better Than “Open Source,” in Free Software, Free Society: The Selected Essays of Richard M. Stallman 57 (Joshua Gay, ed., 2002).↩
See Oracle America, Inc. v. Google Inc., 750 F.3d 1339 (2014).↩
See U.C.C. § 2-312, 2-314, 2-315 (2002).↩
U.C.C. §2-312(3) (2002).↩
U.C.C §2-714 – 2-715 (2002).↩
U.C.C. §2-312(3) (2002).↩
See Thomas Hemnes, Intellectual Property Indemnification Clauses, 2013 B.C. Intell. Prop. & Tech. F. 1, 3-4 (2013).↩
See GNU General Public License, version 3 (GPL-3.0), Open Source Initiative, https://opensource.org/licenses/GPL-3.0 [https://perma.cc/STH3-2W85]; MIT License, Open Source Initiative, https://opensource.org/licenses/MIT [https://perma.cc/4B2R-JAS9]; BSD License, Open Source Initiative, https://opensource.org/licenses/BSD-3-Clause [https://perma.cc/QA9P-W4JX].↩
See Apache License 2.0, Open Source Initiative, https://opensource.org/licenses/Apache-2.0 [https://perma.cc/KE42-A4JC]; Microsoft Public License, Open Source Initiative, https://opensource.org/licenses/MS-PL [https://perma.cc/M7DL-VBQZ]; Artistic License 2.0, Open Source Initiative, https://opensource.org/licenses/Artistic-2.0 [https://perma.cc/TNZ3-ALV2].↩
Eclipse Public License, Open Source Initiative, https://opensource.org/licenses/EPL-1.0 [https://perma.cc/JUY9-MTYG]; Mozilla Public License 2.0, Open Source Initiative, https://opensource.org/licenses/MPL-2.0 [https://perma.cc/S9TH-FVEE]; Common Public License, Open Source Initiative, https://opensource.org/licenses/cpl1.0.php [https://perma.cc/7DTF-QJDD].↩
Academic Free License 3.0, Open Source Initiative, https://opensource.org/licenses/AFL-3.0 [https://perma.cc/8S8T-RUF8]; Open Source License 3.0, Open Source Initiative, https://opensource.org/licenses/OSL-3.0 [https://perma.cc/S5EM-L87Q].↩