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January 5, 2026
I first bumped into open source in the mid-90’s during Linux’s early rise. But I used and benefited, unknown to me, from it for years already at that point. Given that long history I personally sometimes forget that open source software remains out of sight to most people and the details behind what makes it special are similarly new to most. And those details are also often surprising once explained.
Open? Free? Proprietary?
Open? Free? Proprietary?
Some call open source software (or “OSS”) free software. This causes confusion, because “free” ambiguously spans ideas like “freedom” and “zero cost”. Those are different concepts and both critical to understanding OSS and its distinctions from proprietary software.
Software is Intellectual Property
Software is Intellectual Property
Intellectual Property (IP) law backs into centuries of broader property law, which in turn relates to maritime law: In the 12th century the Tavole Amalfitane established an early international mercantile code. It included provisions that shipwrecked seafarers attempt saving first the crew, then the cargo, then the ship. This order lays down a commercial hierarchy valuing people first, merchandise second, and infrastructure third. And in doing so it specifies a set of rights and responsibilities for those seafaring merchants.
Today when we engage in commerce with a simple exchange of goods and services we may focus just on price and the specific scoping of the goods. But in the exchange of property we encounter contracts and licenses, which like that ancient law of the sea, grant producers and consumers specific rights and responsibilities. This is the case for software shared under the terms and conditions of an open source license.
The Contract
The Contract
The Open Source Initiative maintains the canonical definition of open source software with ten distinct attributes. Open access to source code coupled with open design, open development, and open community create an ideal context for innovation. Almost one hundred IP licenses satisfy those attributes today, fostering collaborative innovation with unique mixtures of rights and responsibilities.
Based in contract law, OSS licenses assure a consumer’s right to access, study, remix and reuse and even resell software, down to a source code level. Maintaining that assurance is the responsibility of the producer (and their expert counsel). Failure to do so may incur liability. As the saying goes, “With freedom comes great responsibility!”
It is important to note though that nowhere is it required that a producer of OSS ensure fitness to purpose or merchantability of that software, even as a consumer may themselves attempt to do virtually anything with it upon receipt. And so they do! Need help understanding what this means for your business? Reach out for a conversation…
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