Legal Consideration And Coping Strategies Of Open Source Software License

Open source software is a type of software which allows users to modify and distribute in accordance with the license. Open source software offers a free platform for software developers and users, it open up a new world for the software industry.However, when people paid attention to the development opportunities brought by open source software, they still concerned about many legal issues which came from the concept of freedom and a new licensing approach. Notably: Does open source software can be used at will by users? What kind of legal risk when we use open source software? Does open source software license have conflicts among with Copyright Law, Contract Law and other laws? There were clear answers in some reference material for these questions, but as a new thing for open source software, it keeps pace with the times, when we solve some old problems, it creates new problems at the same time, and it caused tremendous repercussions in the whole open source community, this will have significant impact for open source software development. Our country wants to develop and take advantage of this resource, we must study master and apply open source software license, especially, which applied the most widely used and the most influential. Through this approach to develop policies and measures in line with our national conditions, otherwise, open source software to promote healthy and orderly development is only an empty talk.This article is divided into three parts:Part I: Overview of open source software license. This section first discusses the rise of open source software and its development and impact. Briefly describes the historical background of the rise of the open source movement and landmark events in the process of development. Focus on Richard Stallman created free software and Eric Raymond first proposed the slogan of open source software, and then analyzed its development trend, there has been more and more large companies engaged in open source software boom, even Microsoft can not ignore it, finally, summed it affected the entire software industry. It is no exaggeration to say that, the world cannot develop without open source software, it closely related with our daily life, it related to people's livelihood. Second, introduce the open source software and its license recognized institutions, standards and procedures. There are a lot of open source software and theirs licenses are complex too. Before OSIA created, there is no institution to certificate the license. Once a license through its certification, it can use OSI trade mark, accepted by the industry, established its legal status. If a license wants to through the certification, it should meet ten basic conditions, at the same time there is a set of relatively rigorous certification process. Only through the process, OSIA authorized the official approval. At last, introduce the function and current situation of open source software license. Open source software license that is the soul of open source software development, it can be said without a license that we cannot guarantee that the rights of creators and developers. So far, there are 65 licenses which had been certificated by OSIA, then focus on three licenses which applied the most widely and the most influential, GPL(General Public License),BSD(Berkeley Software Distribution),MPL(The Mozilla Public License).Part II: Legal consideration of open source software license. First, it analysis legal definition of open source software license in foreign countries. Through the jurisprudence of district court in Germany recent years, German law tends to treat the behavior of open source software license violations as violate a treaty. The judge of United States court avoid judicial review on open source software license, the legal nature wasn't clear, however, after the case Jacobsen v Katzer, the Court of Federal first characterized violate open source software license as a tort in the decision. Second, legal status of open source software license in China, according to contract law and copyright law in china, we can define the legal nature of open source software license as a contract. In the specific application of the law, it divided into substantive law and procedural law, for infringement and breach of contract, it can be applied to the domestic contract law and copyright law, such cases often involve in the jurisdiction of foreign intellectual property, applicable rules of the law and selection of applicable law, it need to refer to Civil Procedure Law and other relevant national laws and international private law. Third, the legal risks of open source software, such as no warranties, copyright, the risk of patent infringement.Part III: Coping strategies of open source software license. First, open source software license legal risk coping strategies. Second, the recommendations of the domestic open source software licenses, face to the risk of the law and combine with the current status of domestic open-source software development, propose effective legal settlement, then from the perspective of long-term to promote healthy and orderly development of open source software, on the one hand, we should develop our own open source software licenses, on the other hand, rely on China OSS Promotion Union to join the movement to share and create open source software around the world.