Owning a Cause of Action

The prospect of litigation over open source software is disturbing to all of us. Open source software cannot flourish in a litigious environment in which everyone is suing everybody else over perceived injustices relating to open source licenses.

Indeed, in practice, there is very little litigation over open source. After all, why would a licensor who is permitting everyone to copy, modify, and distribute his or her software need to complain about someone who did those things? And why would a licensee who receives software with essentially unlimited rights to it need to demand even more from the licensor ? When the software is essentially free (i.e., zero price), and when software freedom is guaranteed by the license, why would anyone bother to sue?

But litigation can occur, and it is important for anyone involved with open source software to understand the risks.

The risks are low. If you honor the terms of the licenses for open source software you acquire, you probably won't be bothered. And whatever litigation risks you do accept with open source software are essentially the same risks as with proprietary software. If you live in a litigious society, you need to be prepared for lawsuits.

A cause of action is simply a matter for which a legal action may be maintained . In the open source context, causes of action can arise over intellectual property matters, such as ownership of copyrights or patents, and interpretation or enforceability of license and contract terms, and for business practices that are perceived by one party or another to be unfair. A cause of action is said to be owned by the party that has the right to maintain it in court .

When a licensee accepts software under an open source license, he or she acquires nonexclusive rights to intellectual property in the software, including the rights to make copies; to create and distribute derivative works; and to execute licenses to make, use, and sell products containing that software. The licensor, you will recall, has made promises (express or implied ) to each licensee concerning the availability and quality of the software. A licensee may sue in court to enforce those promises, even if it means suing the licensor who gave him or her that software in the first place or suing third parties who improperly interfere with the practice of those rights. A licensee, then, can potentially own one or more causes of action and be the plaintiff in a lawsuit.

A licensor distributes software under an open source license containing certain terms and conditions that licensees must obey. Licensors may sue their licensees in court to enforce the terms and conditions of the license or to terminate it. A licensor, then, can potentially own one or more causes of action and be the plaintiff in a lawsuit.

A contributor participates in an open source project and submits his or her original works of authorship to the project. The contributor may sue to protect his or her copyrights and patents from those who use that software outside the scope of the license (express or implied) to the project. A contributor , then, can potentially own one or more causes of action and be the plaintiff in a lawsuit.

A stranger may own a copyright or patent that is embodied in open source software without the stranger's authorization. He or she may sue to have that infringing intellectual property removed from the software. A third party, then, can potentially own one or more causes of action and be the plaintiff in a lawsuit.

Finally, there are societal interests at stake in open source software. Governments may promulgate software export laws, mandate standards for security, and enforce antitrust rules. Bankruptcy laws may interfere with ownership of intellectual property. These interests may be enforced in court, sometimes directly by the government. Governments, or government agencies, can potentially own one or more causes of action and be plaintiffs in lawsuits.

Owning a cause of action, of course, doesn't necessarily mean that you will win in court. All you have is a right to institute judicial proceedings , and it will be the judge or jury that will decide, based on the facts and the law, whether the plaintiff or the defendant wins.