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‘Your Code Looks Like My Code‘


Policies, collective goodwill protect IP for open-source projects

By Jennifer deJong
November 15, 2006 — 
Businesses look to legal counsel to protect homegrown code. But for open-source projects, calling in the lawyers is rarely the first line of defense.

To address intellectual property concerns, they rely primarily on policies and procedures—spelled out in great detail—as well as the collective goodwill among members of the open-source community. “The trust level among open-source developers is high, and the tolerance of impropriety is extremely low,” said Lawrence Rosen, an attorney for technology law firm Rosenlaw & Einschlag.

According to Rosen, author of “Open Source Licensing: Software Freedom and Intellectual Property Law” (Prentice Hall 2004), being careful about the provenance of code donations to open-source projects comes down to three things: “Know the people you are working with, get it in writing and publish [the code].”

Contributors must draft a document that says: “I am giving you what I own, and I have the right to give it to you,” he explained. Once the code is published, the open-source community is quick to vet the contribution, pointing out if any part of it looks and feels like someone else’s code.

GOAL: QUICK RESOLUTION
That situation has occurred, said Cliff Schmidt, vice president of legal affairs for the Apache Software Foundation. Cases have come up where “the code is your project looks like the code in my project.” The similarity is often due to a third project, from which both parties derived pieces of the same open-source code, he said. “When that happens, there is a discussion, and we move quickly to resolve the issue.” That is typically a matter of getting the developer who contributed the code to rewrite it, so as not to infringe on a copyright, he said. “The community rallies around fixing these things as soon as possible.”

Apache requires contributors to sign a document that says their contributions are licensed to the Apache Software Foundation and its recipients, said Schmidt. They must state that they are the author of that original work, and that they or their employer owns the copyright of that work.

The Eclipse Foundation follows a similar approach. “Our focus is on ensuring that we demonstrate the provenance of the code from a copyright standpoint,” said the foundation’s executive director, Mike Milinkovich. “We work to make sure we are not accidentally shipping code we are unaware of.”

Eclipse also analyzes code contributions by running them against an automated intellectual property tool, he said. But smaller projects cannot afford to use such offerings, noted Rosen. The open-source community does a remarkable job of vetting code contributions, he said. “I have never seen a group that is so philosophically committed [to its ideals].”


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