The Open Source Alternative: Understanding Risks and Leveraging Opportunities

Chapter 3. Common Open Source Licenses and Their Structure

All open source licenses, by definition, freely allow the licensee to exercise all of the rights of copyright with respect to the licensed software. The difference between hereditary software licenses and permissive software licenses is that hereditary software licenses place significant conditions on the exercise of certain rights—generally the distribution right.^[35] Some open source software licenses contain explicit license grants, and some contain implicit ones. As a drafting matter, conventional software licenses almost always contain a license grant in a form similar to this: "Licensor hereby grants to Licensee the right to.... "However, many open source software licenses are drafted in an informal style and contain "license grants" stating "Permission is granted..." or a "You have the right to...."^[36]

In addition, many open source licenses contain significant implicit license grants ranging from implicit grants of copyright interests to implicit grants of patent interests and other intellectual property interests. Thus, the Berkeley Software Distribution (BSD) license states: "Redistribution and use in source and binary forms, with or without modification, are permitted." There is no express grant of the right to copy, prepare derivative works, or publicly perform or display, but these rights are universally understood to be granted under this license.

More controversial is the implicit patent license grant in the ...