Disputes over Ownership of Intellectual Property

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Licensors can only license software which they own or which they have received permission to license. That basic legal requirement is explicitly acknowledged in the OSL/AFL by the warranty of provenance and in the MPL and CPL by their representations. (OSL/AFL section 7; MPL section 3.4[c]; CPL section 2[d].) All open source licenses, regardless of their explicit language, at least imply that the software is being licensed under the authority of its copyright owner. A licensor who fails to abide by that implied or explicit promise can be guilty in some jurisdictions of fraud or gross negligence, regardless of warranty disclaimers.

A contributor who submits a contribution he or she doesn't own might be forced to pay damages to cover the cost to replace the infringing contribution or to buy a valid license from its rightful owner.

Companies that make contributions to open source projects are assumed to be sophisticated enough to take responsibility for the software they contribute. But sometimes employees make contributions that their employers do not approve or allow. That is really a dispute between the employee and his or her employer. Recipients of such unauthorized contributions may allege negligent supervision if employers fail to supervise properly their employees' participation in open source development.

This means that companies that participate in open source development should document their procedures and policies to their employees. Attorneys should review those procedures and policies to protect companies' intellectual property.

Recipients of open source software under apparently valid licenses may suddenly find their software challenged by third parties claiming ownership rights. This is in part what happened in the SCO vs . IBM litigation, where SCO claimed that IBM had no authority to license certain software under the GPL, software that ended up in Linux. Open source is not unique in this respect; such ownership disputes can also occur with proprietary software. Licensees are not direct parties to those intellectual property ownership disputes, although their licenses might ultimately be affected by the outcome.

There is little that downstream licensees can do in advance to avoid third party claims to intellectual property against their licensors. Some licensors are now offering to indemnify their customers against such claims, although any indemnification paid will often be worth far less than the infringing software those customers can no longer use.

When third parties prove their valid claims to ownership of open source software, only one response is appropriate: The software may no longer be used without a license from the true owner. Open source licensing depends on intellectual property law, and it would be hypocritical of open source distributors and customers to dishonor those laws by copying software to which they no longer have a license.

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Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

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