Quickies #3, protecting IP in OSS

Now enjoying my status as a sage of the industry, which is to say I am older than 20, but alas, not a billionaire, God fuck-it; people are all the time asking me for nuggets of wisdom from my vast experience at the top.

Quickies from marcf #3: What IP is there to protect in OSS?

B.D asks: "marcf, my open source project is starting to enjoy a measure of success, I am thinking of going professional with it, I am thinking about business models. How much thought should I put in protecting my Intellectual Property?"

Answer: B.D. protecting IP in OSS is extremelly important. The only "private" property that exists in OSS are 1- brand 2- URL. Both are obviously related but really you need to protect your brand name, in other words REGISTER your trademarks, use them, declare they are yours and enforce the trademark, meaning protect against infringement. Other products, specifically based on your product should not include your name. Consultancies will be able to say they know and work with your "product name" but they cannot ship products using your trademark. Educate yourselves on brand IP, that is a big asset in OSS.

The URL deserves the same treatment. A successful website with traffic is a source of revenue in this day and age, either directly through ad placement or indirectly by lead generation. There will be many people who try to hijack your name and your URL for their own business ends, it was always my view that they are simply committing THEFT.

B.D asks again: "but what about the code itself? should I protect the IP?".
Answer: Short of filing patents, there isn't much you can do in OSS. Let's face it the IP is there for everyone to see. If you are in a mode where a lot of the value is the code itself then open sourcing under GPL or equivalent reciprocal license may be a good choice for you. At least you will make sure that ISV's that re-use your license get in contact with you and many of them will pursue dual-licensing, a strategy that is known to work to monetize an OSS user base (mySQL).

However you will have little protection against thieves that want to copy what you have done without letting you know and put it under different licenses, I have seen it done, such is the nature of the beast.


Shaun Connolly said…
It is also important to setup a solid contributor agreement in order to manage the copyright. This is necessary for dual license and license change scenarios.
cruppstahl said…
Here's a good contributor agreement:
rpk said…
Open Source allows everyone to use the code of others in any way they want. Intellectual property might be claimed, but by declaring source code as open source, you allow others to change it in any way they want, as long as they do not claim it to be of their own creation. But this is of course already included in the OSS licenses. As for names and trademarks, by definition OSS does not use trademarks or names. If you release a software called Wireshark, and I release a software called Wireshark, I am allowed to do so, but it will definitly result in some angry contributions throughout the net. For example take a look at the fight for the Linux trademark, and you will see what I mean.

I think you have mixed up two things in your article here:

1. Does OSS need protection of intellectual property? Answer is no, of course not, because per se, you can do with the code anything you want.

2. If you want to make money out of it, do we need to protect our Intellectual Property? Yes, of course, but this question would be the same, if the underlying business model would not be OSS based. So thereby saying OSS code needs special protection is not true.

And lastly, there are plenty of ways to fight against code stealing . Take for example the actions the authors of BusyBox are taking. In Germany there are already rulings saying, the GPL is enforceable by law. The only thing you can not do is patent your code (as that would violate most OSS licenses).

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