Three things you need to know about open source

Open source, with the concept of open source, has a significant industrial ecological effect. For example, Google acquired Android that year, developed a smartphone operating system for the kernel of the open-source software Linux, released the source code under the Apache license, and has been running in an open source mode, with great commercial success.

Three legal keys to be aware of open source

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The shared nature of open source, as well as market success stories, has attracted more and more enterprises to participate in the open source business. Because open source is run in a unique legal framework (i.e. open source license), involving copyright, patents and other intellectual property issues, and with contract law, community agreements interwoven, so open source encountered legal issues, often more complex, professional. To this end, this paper analyzes and summarizes three common legal points for enterprises to do open source reference.

1 Code “Contribution” still has copyright

“Contribution” is a unique legal concept in the open source software space. For example, Article 0 of Mulan PSL v1, our country’s first open source license, states that “contribution” means works protected by copyright law under this License licensed by any “contributor”. For example, open source licenses such as Apache 2.0 and MPL 2.0,2 also provide for “Contribution” (“Contribution”).

Why call a work (primarily source code) a “contribution”? Because to do open source, the first thing to do is to open the source code, for the public to share. This sharing is often free of intellectual property taxes and allows other programmers, companies, universities, or institutions to work together to improve and distribute source code.

As a result, program code that will be shared, improved, and distributed under open source licenses will be more graphical, called “Contribution”. The enterprise, programmer, institution and other subjects that submit contributions are called “contributors”.

Even if some open source licenses do not explicitly define the term “contribution”, the substance of the term is reflected in the license terms.

For example, article 0 of GNU GPL 3.0 states that “procedure” means all copyrighted works licensed under this license. Each licensee is “you” and “licensee” and “recipient” can be an individual or an organization.

Therefore, “Contribution” is a basic legal concept in the field of open source software and is an explicit or implied provision of the license.

Because people usually understand “contribution” as “incoming or giving” or “something that is helpful to the public”. So does “contribution” mean open source, and businesses need to share the source code as if they were making a public donation? Is the enterprise open source program code public property?

The answer is no. After the program code is open sourced, the enterprise remains the owner of the program, which is the property owner of the program code. For example, GNU GPL 3.0 Article 11 of the License states that “contributor” means the copyright owner who authorizes the use of the program under this License, or the copyright owner who authorizes the use of works derived from the program.

Therefore, open source changes, in accordance with the conditions set by the license, enterprises have licensed their rights to the program, allowing the public to operate freely, modify, distribute, rather than giving up the intellectual property rights to the source code.

If the enterprise does not permit, other people without authorization for commercial use, modification, distribution, in general, will still constitute infringement, according to law should bear legal responsibility.

For example, Xiaoming wrote a small game program in Java. If Xiaoming is not open source, can others get published on the network? The answer is no. Because Xiaoming has copyright on the computer programs he develops, publishing on the Internet without his permission is a violation and should be held legally responsible.

Now Xiaoming wants to open source, using Mulan PSL v1 as an open source condition, you can freely distribute to the extent permitted by the license, or develop derivatives, without fear of breaking the law, but the copyright owner is still Xiaoming.

It should be noted that the right to be licensed for “contribution” is the copyright that an enterprise, as a contributor, enjoys for open source computer programs. That is, the basis of the right of open source license is copyright law, including reproduction rights, distribution rights, adaptation rights, information network dissemination rights and so on.

For example, article 11 of the GNU GPL 3.0, cited above, provides for the authorized use of the procedure by the copyright owner under the license, making it clear that the right to the license refers to copyright.

The judicial case also shows that open source licenses are agreements based on copyright law. For example, in two well-known open source cases in the United States: the Jacobsen v. Katzer case in 2008 and the Artifex Software, Inc. v. Hancom, Inc. case in 2017, the court found that open source licenses were a copyright agreement.

2 Software patents can be applied for before “contribution”

Since the provisions of open source licenses for “contributions” follow copyright law, the principle of “ideological ambiguity” in copyright law is of course applicable to computer programs, including open source software.

“Ideological expression of the two-way” refers to copyright law does not protect the computer program and other works of thought, but only to protect its expression.

The “thought” in copyright law is not equivalent in connotation to the “thought” which people usually understand. According to the law, “the ideas used to develop the software, the process, the method of operation, or the mathematical concept” are all in the scope of “thought” in copyright law, which does not provide protection.

For example, in order to improve the storage capacity of mobile computer devices, Xiaoming invented a method to expand the storage capacity of mobile computing devices using the virtual device file system, and wrote a computer program to implement it.

This inside, Xiaoming written out of the source code text and other program code belongs to the “expression”, copyright protection, Xiaoming can be used to do open source.

However, the method embodied in the program, that is, the method of expanding storage capacity, is a practical technical solution, because it is functional and belongs to the “thought”, copyright law is not protected.

Obviously this method, is the essence of Xiaoming’s design, constitute the core value of Xiaoming software development. At this point, Xiaoming would think of applying for a patent for this method, i.e. granting patent rights to inventions involving computer programs, and legally monopolizing the application market for this technology solution.

The problem is that Xiaoming is ready to open the program, i.e. submit a “contribution” according to the license. So before “contribution”, can Xiaoming apply for a patent for a technology solution that was originally designed and implemented through the program? What is the impact on open source if it is granted a patent?

First of all, open source licenseises are mainly based on copyright law, which provides for the copying, modification, distribution of copyright rights of the code and other matters, and does not prohibit “contributors” from applying for patents on the technical schemes related to the program prior to open source.

Second, some open source licenses provide for patent restrictions, which also show that contributing source code does not conflict with patent applications for inventions. For example, Mulan PSL v1 Article 0 states that each Contributor grants you a permanent, global, free, non-exclusive, irrevocable (except in accordance with this provision) a permanent, global, non-exclusive, irrevocable patent license for you to manufacture, commission, use, promise to sell, sell, or import its “contribution” under this License. or otherwise transfer its “contribution”.

This also implies that the license does not prohibit Xiaoming from applying for a patent, but only restricts Xiaoming’s patent rights to hinder the public’s use, improvement and distribution of the source code.

Open source licenses such as Apache 2.0 have similar provisions. However, some open source licenses do not address patent issues, such as MIT, and are there implied patent restrictions on such licenses? Further legal study is needed.

Finally, since the source code is open source shared, it may result in the program-related technical solutions being known to the public, thus failing to meet the licensing conditions set forth in the Patent Act.

Therefore, patent application before contribution is a step that enterprises should consider. Although many open source licenses have patent restrictions, contributors cannot charge patent fees.

However, obtaining the patent rights related to the program code of “contribution” is still of great significance to the enterprise, especially in the aspect of patent layout. Moreover, an enterprise still has the right to bring patent infringement proceedings for unauthorized acts of technical schemes outside the scope of the license.

3 Do “contribution” should consider the platform protocol

Regardless of the open source license chosen, it is a common step for an enterprise to submit a “contribution” to a platform and participate in a project under a license. In this way, the enterprise and the platform and/or community have established a complex series of legal contractual relationships, forming a “contribution” related agreement group. These agreements are no less important to contributions and contributors than open source licenses.

In general, in the open source world, the platform acts as an ecosystem of data warehouses, project hosting, versioning, and code discovery.

Therefore, in the protocol group associated with “contribution”, the platform agreement is universal, regardless of what license “contribution” is adopted, and what project community it is involved in, the platform is often required to provide services under the agreement.

Platform agreements are generally signed online by contributors in the form of electronic contracting, defining the legal rights and responsibilities of the parties. In the event of a dispute, the content of the agreement will become an important basis for dispute settlement.

Therefore, enterprises to do open source, if the need for platform services (generally need), should seriously consider the platform protocol. The content of the Platform Agreement is generally standard formatted content, taking GitHub Terms of Service as an example, which includes definitions, accounts, usage, code warehouses, copyright infringement and DMCA settlement, GitHub’s API use, payment, unsecured notice, disclaimer, damages for breach of contract, Agreement changes, etc.

As long as it does not violate the mandatory provisions of the law, does not harm the public order, these provisions are generally valid, the parties to the agreement are legally binding, open source enterprises or programmers should fulfill the obligations set by the terms, bear the corresponding responsibility.

Here are two notable things to note in the GitHub platform protocol.

First, although the platform agreement belongs to an online service contract between equal subjects, it may be regulated by the U.S. government, which affects the sharing, derivative development and improved distribution of “contributions” by enterprises.

For example, the GitHub platform states that GitHub websites, enterprise servers, and products and information uploaded by users may be subject to trade regulations, including the U.S. Export Regulation (EAR).

Open source enterprises should be fully aware of this and the resulting legal and operational risks. The second is where the law and which court has the power to decide if the parties are involved in a dispute over the platform agreement.

For example, GitHub Terms of Service provides that this Agreement between the User and GitHub and all access to or use of the Site or Services are governed by United States federal and California law, but do not include conflict laws.

The User and GitHub agree to the exclusive jurisdiction of the courts located in San Francisco, California, and as the court.

And China’s well-known open source platform “Code Cloud” user agreement provides that the content of this website and the interpretation and application of these Terms of Use are applicable to the laws of the People’s Republic of China, due to the use of this website arising from all disputes, unless otherwise agreed, by the People’s Court of the People’s Republic of China (The location of the Oss Network) under the jurisdiction of the people’s court.

Where the lawsuit is fought, the importance of the enterprise is self-evident, and it is recommended that enterprises do open source, should fully evaluate the agreement in the “applicable law and jurisdiction” provisions.

(No body below)


[1] Apache 2.0 1. Definitions. “Contribution shall” call any work work work of the ship, the original of the original of the work and any modifications or adds to the work or derivative works thereof, that is is is works to licensor for inclusion in work by th e copyright owner by an individual or Legal entity authorized to submit on behalf of the copyright., last visit, October 29, 2019.

[2] MPL 2.0 1. Definitions “Contribution” means Covered Software of a particular Contributor., last visit on October 29, 2019.

[3] GNU GPL 3.0 0. Definitions. “The Program” refers to any copyrightable work licensed under this license. Each license is addressed as “you”. “Licensees” and “recipients” may be individuals or organizations., last visit on October 29, 2019.

Basic information on “Home of the Word” is available at, visit October 29, 2019.

[5] GNU GPL 3.0 A “contributor” is a copyright who authorizes s use under this license of the program or a work on the program is is., visit 29 October 2019.

The official legal name of our country is the Copyright Law, which should also include the Regulations on the Protection of the Right to Spread Information Network and the Regulations on the Protection of Computer Software.,, last visited on 29 October 2019. 3904, comments can be found at, last visit, 29 October 2019.

Article 6 of China’s 2013 Regulations on the Protection of Computer Software stipulates that the protection of software copyright in these Regulations shall not extend to the ideas, processing procedures, operating methods or mathematical concepts used in the development of software.

The patent application case is detailed on pages 264-265 of the Patent Examination Guide.

Why are some “ideas” that are not protected by copyright law, but can be protected by patent law as a technology solution? You can refer to my book “The Interpretation of Cyberspace Security Laws and Regulations” (The 13th Five-Year Plan Materialforthetation of the Cyberspace Security Major in Higher Education, November 2018) on page 149 to 150, “Computer software in addition to copyright protection, but also can not get patents, trade secrets and other types of intellectual property protection?” “And on page 154, “Why doesn’t the regulations give copyright protection to the ‘ideas’ and ‘operational methods’ used in software development? “。

[12] Apache 2.0 3. Grant of Patent License. Subject to the terms and conditions of this license, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except asexin this section) license to make, have made, use, use, Fer to sell, sell, import, and otherwise transfer the Work, where such a license applies only to those claims licensable by such such SuchSuch’s right to right right imif-by-contribution (s) or by-combination of the contribution ion (s) with the work to so so so s(contribution) was ed. If you patent patent foyss everst any inc if (leing a cross-claim or counterclaim in in a f) alleging that the work or a Contribution fofedin the work a work is direct or contributory patent, then any patents granted to You under this license for that work will shall as the date such litigation is filed., last visit, October 29, 2019.

I think that from China’s E-Commerce Law, “Information Network Communication Rights Protection Regulations” and other laws to analyze, the open source world platform is not a complete sense of the e-commerce platform operators or information storage space providers. Therefore, it is necessary to delineate the boundaries of rights and responsibilities of the platform according to the specific circumstances of operation, and it is not possible to make a simple judgment in general terms.

[14], GitHub Enterprise Server, and the information you upload to either product seilife product be subject to trade control, the ear inge u.S. Export Administration Regulations (the EAR., October 29, 2019).

[15] Except to the fort aforelaw law, this time association and you and GitHub and any access to the use of the Website or the service is are ed by the federal laws of the United States of America and the laws of the state of the C Alifornia, without out of the right to conflict of law. You and Github agree to submit to the exclusive and venue of the courts located in the city and county of San Francisco, California., 29 October 2019 one visit.

The code cloud website shows that the Oss network is located in the Guangdong-Hai Street High-tech District in Nanshan District, Shenzhen, on October 29, 2019.

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