If you sell a product that uses free software is that copyright infringement?

Copyright is a set of exclusive rights granted to the author of a new work. In the United States the law protects software as if it was a literary work. A programmer that creates a new piece of software is granted a copyright on the software. If someone other than the programmer copies, distributes or sells the software that is considered copyright infringement. Copyright law in the United States also grants the programmer the exclusive right to make derivative works. A derivative work is a work based upon one or more preexisting works, such as a translation, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. So if a piece of software only had Chinese text in it, translating the text to English would be considered a derivative work.

The law in general, and Copyright law specifically, has a difficult time with technological advances. Copyright law in the United States was written long before computers were a common household appliance. Therefore, it should be no surprise that copyright law can be applied to computer software in peculiar ways.

Programmers write computer software source code in a programming language. That source code is then complied into machine commands which a computer can perform. If only the machine commands are distributed and the source code is kept secret that is called closed source software. If the programmer releases both the source code and the machine commands to the public, that is call open source software. Both closed source and open source software are protected by copyright law.

Open source software is a popular movement with a growing community of programmers. A programmer that believes in the open source software model will frequently release their software to the public with the understanding that if another programmer makes an improvement to the software, that improvement will be shared with the original programmer. This cooperative spirit is a foundation of the open source software movement. Open source software programmers frequently release their software with a copyright license to ensure this cooperative spirit is respected.

Things get complicated when open source software is incorporated into a closed source product. Open source software is frequently released to the public for free, this can lead people to believe that open source software is free to use for any purpose, but this is not the case. The original programmer of the open source software still retains the copyright to the software unless they specifically disclaim their copyright.

The license which is included with the open source software typically spells out exactly what can be done with the open source software. There are a handful of popular licenses such as GNU General Public License, BSD License and MIT License.

Companies that wish to incorporate open source software into their products must be mindful of the license under which the software was released. Failure to respect the license can make a company liable for copyright infringement. Take for instance the case ARTIFEX SOFTWARE, INC. v. HANCOM, INC., 16-cv-06982-JSC (N.D.C.A. 2017). In that case Artifex distributed open source software with a license which stated the software was free for personal use but commercial use required payment. Hancom took that software and incorporated into a closed source commercial product without paying. Artifex sued for copyright infringement and won.

If you are developing a product which uses open source software it is best to consult with an attorney who is familiar with open source software licensing to ensure you are in compliance.

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