The Open Source Alternative: Understanding Risks and Leveraging Opportunities

Chapter 13. Enforcement of Open Source Licenses

Past Enforcement

Compared to proprietary software licensing, open source licensing has seen relatively little formal enforcement activity.^[142] Open source license enforcement is a moving target, of course, so cataloging all enforcement efforts in a book is not feasible.^[143]

The Free Software Foundation (FSF) is in some ways the de facto enforcer of the GNU General Public License (GPL)—whether the license covers the FSF's own software or not—and to date, the FSF has only once fileda lawsuit to enforce the conditions of the license.^[144] Because open source licenses flow directly from the author/owner to the licensee, the only party in a legal position to enforce the GPL is the author or owner of the copyright. Intermediate distributors do not have the power to enforce except with respect to any contribution they may make. ^[145] The FSF's enforcement activities for non-FSF code take place due to the FSF's position in the free software community and its resources for enforcement rather than to its legal right to bring enforcement actions. For the past few years, informal enforcement activities have been run through the Software Freedom Law Center (SFLC), a not-for-profi t organization that assists the FSF in certain legal matters. ^[146]

While the FSF and SFLC have not filed lawsuits to enforce the GPL, the FSF filed an amicus brief in the Nusphere case (described later). (An amicus curae brief is one in which a nonlitigant seeks to sway ...