Can anyone say his or her software is open source?

Rod Dixon, J.D., LL.M. rod at
Wed Oct 31 04:52:20 UTC 2001

The question presented is actually a very good one in my opinion because
it calls out a subtle complexity with discussing open source and
understanding what is really meant by the various uses (and, possibly,
misuses) of the term. I think a programmer may freely identify their
software as "closed source," "open source," or "friendly source" as long
as there is no trade mark issue and the intent is not to mislead
consumers or create unfair competition among competitors.  As far as I
can tell, the term or phrase "open source" is generic, and often used as
a marketing phrase in much the same manner as "diet soda" is used.  I
cannot imagine what the legal basis would be to bring a fraud claim on
the use the term "open source."   

On the other hand, I think the member organizations representing the
open source community as well as vested individuals might have some
obligation to keep the press informed of what their view is of what it
means to develop and distribute open source/free software as that term
is used in the open source community. In this respect, I see troubling
uses of the term "open source" in the press when covering the open
source community far more frequently than I notice free-riding software
developers using the term as a marketing scheme that one might say is
inappropriate, but hardly illegal. 

OSI's OSD is a different question entirely, but that is matter for OSI,
although the issue is not whether someone "violate[d]" the OSD. There is
no legal harm arising from "violat[ing]" a definition. More important,
the OSD needs some helpful re-working, and it may not be unexpected that
some open source projects have significantly diverged from the OSD. 


Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod at

> On Friday 30 November 2001 03:31 pm, Tina Gasperson wrote:
> > ACARA ( 
> is a program  
> >originally developed by NASA. ACARA is now being handled by 
> the Open  
> >Channel Foundation ( ACARA's 
> >license  terms  
> >(
>icense_id=20) violate at least three points of the Open Source
> (AFAIK, IANAL), yet the Open Channel Foundation claims all of the
> it distributes is open source.
> Is this OK from a legal standpoint?

It's legally okay to use the term "Open Source Software" without getting

permission from anyone. But some uses of "Open Source Software" can be 
considered misrepresentation or fraud, activities that are illegal. The 
software they are selling is not Open Source Software, yet they claim
that it 
is. That's fraud in my book.

There's no trademark on the term "wool carpet", yet if I sold you a wool

carpet that was really acrylic, I would be in a world of legal hurt.

David Johnson
pgp public key on website
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