Contractual Relationships in Open Source Structures

The article provides an overview of the legal relationships in Open Source Structures. It shows that – as within all software development and distribution models – different persons with different “functions” (developer, distributor, and user) can conclude contracts concerning various objects of agreement. 1 Legal Aspects of Open Source Software The terms “Open Source Software” or “Free Software” denote software that may be copied, distributed and modified by anyone, and the source code of which is at the same time freely available. Open Source Software thus establishes a structure of decentralised software engineering as well as decentralised software distribution. In contrast to “conventional” (“proprietary”) structures, the software is neither developed by individual corporations or organisations nor is it supplied exclusively by “authorised dealers”. Over the last fifteen years Open Source Software has gained considerable market shares in certain software sectors, especially core internet technologies, operating systems, server systems, and embedded software systems. In some sectors, e.g. web server software, Open Source Software even dominates the market. Due to the development of free “office software”, browsers, mail clients etc., Open Source Software has also arrived on the end user’s desktop. This growing market presence of Open Source Software has lead to intense economic activities in this field of software development and marketing. Companies are investing remarkable resources in further development and expanding the distribution of Open Source Software. Businesses of all branches acknowledge Open Source Software as a possible and worthwhile alternative to conventional (“proprietary”) software for their own use. The more Open Source Software is utilised in business processes and in securitysensitive business areas, the more legal aspects play a significant role to the different parties involved in Open Source development and marketing. Due to the high economic risks accompanying the commercial use of software, all parties concerned are in need of safe legal foundations for their relationships. For this reason it is not surprising, that one can observe increasing activity in examining the legal aspects of Open Source Structures (see e.g. JM02, SPI04, SIF02). Such legal analysis of Open Source Structures can come with different objectives. On the one hand it may attempt to clarify whether existing Open Source development and marketing strategies are consistent with the law. On the other hand it can be intended to establish new Open Source Licensing Models that fit perfectly with the particular interests of the parties involved (see e.g. “Bremer Lizenz”, http://www.koopa.de/OSCI-Standard/OSCI-Bibliothek). In both cases one has to keep in mind the international development and international marketing of Open Source Software: Different national legal systems can be applicable to the various transactions within Open Source development and marketing structures. This makes it very difficult to create valid Open Source Licenses and other agreements. Because national legal systems differ significantly, the same contract clause may be valid in some countries and invalid in others. Exactly the same contract clause will then be partly legally binding and partly not. Legal analysis of Open Source transactions, therefore, has to address the question, under which circumstances a certain national law is applicable, as well as the problem of whether Open Source Structures comply or can comply with the respective national legal system. In the following, only one single aspect out of the wide range of legal problems regarding Open Source Software will be further examined: The analysis will be focused on the “contractual relationships” in Open Source Structures. Also, because the concepts of “contractual relationships” may vary among national legal systems, the discussion will be restricted to the application of German Law. 2 Elements of “Contractual Relationships” (under German Law) Contracting is one of the core elements of organising relationships between different parties. It allows the parties binding arrangements to pursue their own economic and personal interests. In this respect, most national legal systems agree. However, the different national legal systems provide for varying legal regulations. It is therefore clear that the provisions for the conclusion of contracts, the scope of contractual freedom and the possible claims of the parties can differ, as well as the conditions and consequences for the contractors of a certain contract. At the same time, the term “contract” is used with different meanings depending on the general concept of regulation within the respective national legal system. Examining contractual relationships in Open Source Models may, therefore, lead to different conclusions according to the applicable law of the case at hand. In the following the term “contract” denotes – in accordance with the German Legal System – each set of corresponding declarations of intention made by different parties and addressed to cause a certain legal result (PAL04, Einf v § 145, 1). In contrast to the (traditional) Common Law approach, consideration is not required. (Note: Many common law states have adopted laws that remove consideration as a prerequisite of a valid contract). A closer look at the contractual relationships in Open Source Models provides deeper insights into the theoretical framework of Open Source Development and Open Source Distribution. At first, it shows that there are various objects of agreement, various parties involved, and different contractual obligations: 2.1 Objects of Agreement With Open Source Structures – as with all software development and marketing structures – various negotiable goods and rights as well as various legal positions which are possible subject-matters of contract can be distinguished. To begin with, there is the copy of the executable program. Independently from the executable program, the source code that contains the programming know-how can be a separate object of agreement. Executable program and source code can be distributed or made available via the internet, or they can be stored in a tangible medium. In the latter case the tangible medium itself is another possible subject-matter of contract. In addition to these legal positions, there are intellectual property rights in computer programs which constitute further possible objects of transaction. Computer programs are inter alia protected by Copyright Law. Aside from a few legal exceptions, the copyright holder is granted the exclusive rights to copy, distribute and modify the software as well as the right to make the software available to the public. The most important exception in this context is that in the absence of specific contractual provisions the lawful acquirer does not require authorization by the rightholder for the use of the computer program in accordance with its intended purpose (see Council Directive of 14 May 1991 on the legal protection of computer programs, 91/250/EEC,