How to Enforce Open-Source Licenses

If you create and distribute open-source licenses, enforcing them is a huge part of protecting your code and controlling how it's used. It will also help promote integrity and transparency in software development, modification and usage.

This article will explain why you should enforce open-source software licenses, how to ensure you're able to enforce your licenses, what you need to do to enforce them, and how you can make sure that you don't end up violating someone else's open-source license by accident.

What are Open-Source Licenses?

Open-source licenses are a type of software license that allows users to take source code, use it, modify it, implement it into new types of software, and release that to the public, all at no cost.

There are a few different types of open-source licenses, each with slightly different use parameters:

• Permissive licenses: As the name suggests, these types of licenses are extremely permissive and grant individuals very broad and open rights when it comes to using, modifying and distributing software. Usually they simply require an attribution to the original author, and some type of disclaimer of liability. Examples of this type of license include the Apache License 2.0 and the MIT License.

• Copyleft licenses: These licenses aim to maintain the freedom of use of the source code by requiring that any derivative software is released completely under the same permissive and open license terms. This helps ensure that people don't take the open-source code and use it to create a proprietary product that only they can financially benefit from.

  • Weak copyleft licenses: These licenses allow linking of open-source code with proprietary code, and don't require that the entire derivative software have open license terms. An example is the Mozilla Public License (MPL).
  • Strong copyleft licenses: These licenses require that any derivative works created from the original open-source code, including any changes and additions to that code, are distributed under the same copyleft terms. An example is the GNU General Public License (GPL).

What are Some Benefits of Open-Source Licenses?

Open-source licenses have a lot of benefits for individuals and society at large, including the following:

1. Promotion of innovation and collaboration: Open-source licenses help spur innovation by giving more people access to established code that they can use as a base for additional developments. This lets developers from around the world collaborate effortlessly to create new things.
2. Increased efficiency in development: Open-source licenses make it faster and easier for developers to create new software and customize and expand existing software without needing to create everything from scratch.
3. Allows for budget-friendly development: Because most open-source code is available for free, this takes the cost overhead out of a portion of the software development process when open-source code is used. This allows individuals or businesses with limited budgets to still create innovative, advanced and accessible products without needing to worry as much about overhead and budgets.

Are Open-Source Licenses Enforceable?

Yes. Even though open-source licenses are known for being extremely permissive with how they're used, there are still requirements to using them that must be met. Violating requirements of open-source licenses can lead to issues of contract law violation, as well as copyright violation.

A notable case for open-source license enforcement is the 2008 case of Jacobsen v. Katzer. In this case, the court held that open-source licensing terms are enforceable contracts, and that violating the terms can constitute copyright infringement with injunctive relief as a possible remedy.

Why Should You Enforce Open-Source Licenses?

You should enforce your open-source licenses because this will help discourage people from stealing open-source code and unrightfully profiting from it. Enforcing open-source licenses helps maintain integrity in the world of open-source software and beyond.

Consider a situation where someone takes your open-source code to create a mobile app, then sells that mobile app to end users for a profit, while not honoring the terms of your license agreement. You can see how not enforcing your open-source licenses can encourage theft of code for proprietary purposes.

What Would Trigger the Right to Enforce Your Open-Source Licenses?

If someone is using your open-source license and not adhering to the terms of the license, this would trigger the right to enforce your license.

While open-source licenses are free to use, the users must still comply with the Terms of the licenses, such as an associated End-User License Agreement (EULA) or Terms of Use. Not complying with the terms can result in a breach of contract, copyright infringement, or both.

How Do You Make Your Open-Source Licenses Enforceable?

To ensure your open-source licenses can be enforced, create a terms agreement such as an EULA, Terms of Use or Terms and Conditions agreement. This is an absolute must when it comes to enforcing your open-source license.

Your licensing agreement is where you explain what users of your source code are required to do to legally use the code, and it's the first step towards making your open-source license enforceable.

You won't have anything to enforce against if you don't have clear terms set out for how your open-source license is to be used (or not used).

Make sure to include the following important information in your terms agreement:

• A statement that makes it clear that by using your open-source code, the user agrees to be bound by the terms of the license agreement.
• What permissions you are granting.
• Specific information on what the user must do when using your open-source license/code, such as including disclaimers and correct attributions, and not distributing it in certain ways.
• Specific information on any prohibited activities, such as using the open-source code in a purely proprietary way (basically stealing it).
• A disclaimer of warranties and a limitation of your liabilities.

A termination clause outlining what triggers a termination of the agreement and permitted license usage.

Here's how the Apache 2.0 License states that the grant of the license is subject to the terms and conditions:

It includes a Redistribution clause that lets source code users know that they must meet some conditions including sharing a copy of the license and including a prominent notice on any modified files that the files have been changed:

Here's how the GNU License lists requirements for conveying modified versions of the source code, including adding a relevant date of modifications, and displaying appropriate legal notices on any interactive user interfaces in certain circumstances:ć

The GNU License lets users know that they cannot impose restrictions under the license, such as fees, royalties or other charges:

To protect your own legal liability, include a standard disclaimer of warranties and limitation of liability clause, as seen here:

A termination clause will also allow you to maintain control over your open-source license and its enforcement.

Here's how the GNU License states that any propagation or modification of a covered work done in any way that isn't allowed by the license agreement will terminate the rights under the license:

What Should You Do if Someone is Violating Your Open-Source License Terms?

If you've been able to determine that someone is violating your open-source license terms or you have a strong reason to believe someone is, you may have legal recourse. Ultimately, the copyright holder of the open-source software has the right to enforce the license terms through legal action.

However, keep in mind that many people may accidentally be violating your open-source license terms. Many people think that open-source means it's truly open to anything and they can take it and use it as they want. This isn't bad intent, just bad information (or lack of).

If someone is violating your open-source license terms, follow these steps:

1. Communicate with the violator: Let them know what the issue is, and what they must do to rectify it.
2. See if they are aware of the violation: Oftentimes you'll find that the person wasn't even aware of the violation. Simply informing them may be enough to get them to resolve the violation.
3. See if they will resolve the violation: Once the party in violation is made aware of the issues, they may take immediate steps to fix them right away, such as by quickly correcting the attributions.
4. If not resolved, file a civil lawsuit: If the previous steps don't work, your next step is to file a civil lawsuit to seek remedies and possibly an injunction to stop the use of the infringing software. During the lawsuit, the court will likely order that the source code in question be submitted to the court for review by a qualified and neutral third party.

How Do You Protect Yourself From Legal Issues When Using Open-Source Licenses?

If you use open-source licenses in your projects, there are a few steps you can take to make sure you aren't violating license agreements or engaging in copyright infringement yourself.

1. Become familiar with different types of open-source licenses

Get at least a high level understanding of what different types of licenses exist, and what they require. You don't need to become an expert, but understanding the basics of attributions and redistribution will make it less likely that you will use the licenses incorrectly.

2. Read the license terms thoroughly

When you use an open-source code, read the associated terms agreement thoroughly. This will help you see exactly what you can and cannot do, and can help you avoid unintentional violations of the terms.

3. Implement and train your team on policies and procedures

Make sure that any employees are aware of limits to how open-source code can be used. A great way to do this is by creating your own internal policies and procedures, and making sure your employees understand them.

Some points to address in your policies and procedures are how open-source software can be used, how tracking components can be utilized, what license obligations there are and how to meet them, and then continually monitoring compliance with it all.

4. Keep detailed records on all open-source usage

Whenever you use any open-source code, keep a record of its usage, a copy of the license terms, and detailed information of any and all modifications you or your team make.

Use automated tools such as a Software Composition Analysis (SCA) to help analyze your code usage and identify any license violations that may exist.

5. Do regular audits

Every so often, do a full audit to make sure your records and documentation are correct and up to date, and that there are no active violations in your code. This can help catch something that may have been overlooked.

6. Resolve all issues timely

If you discover that your business is using open-source code in a way that violates the license terms, remedy it quickly before it turns into a true legal battle. This can include removing or replacing the code having the issue, or updating the text of your licenses to include the necessary attributes.

What are the Risks of Not Complying With Open-Source Licenses?

Not complying with open-source licenses can lead to some serious issues including:

• Lawsuits and legal issues
• Financial penalties/lost profits
• Loss of intellectual property rights
• Damage to your reputation

If you don't comply with an open-source license, you can find yourself in an active lawsuit, facing monetary damages and forced injunctions, and monetary damages. This will also put your business in the spotlight in a negative light.

If you fail to follow the requirements of use, modification and distribution, you may find your software is rendered unusable by the court, and you will have to forfeit your rights to it.

Summary

If you have an open-source license, there may come a time where someone is using the license in a way that violates your terms. This will call for legal enforcement of your license and terms.

Keep in mind that many open-source license violations are done accidentally and may be able to be resolved through simple communication. But sometimes legal action will be necessary.

Make sure you have a thorough license terms agreement in place for your code and license, such as an EULA or Terms and Conditions agreement. Include all restrictions and requirements surrounding the use of your open-source code and license, such as what you require for attributions and redistributions.

Having this agreement will help you enforce its terms under contract law. Copyright law is also an important part of legally enforcing open-source licenses in civil court.