Blue Oak Council

Blue Oak Council opens the software commons up to those who can’t find or afford specialized legal help by bringing experienced lawyer-technologists together to publish free, practical materials about software licenses.

The Council uses this page to answer some common questions from our colleagues representing nonprofit organizations without the benefit of access to open licensing specialists.

If you’re an attorney representing nonprofits with recurring open license quandaries, feel free to send us questions. If we can, we’ll answer here and send you a link.

Special thanks to Adler & Colvin for passing along questions they often hear.

What is open source?

“Open source” is short for “open source software”, a movement and shared set of practices among developers who develop and publish computer software in source code form, which allows others to make changes, under license terms that give everyone permission to run, change, and share. You can think of open source software as the work of developers who more or less opt out of the exclusivity afforded by intellectual property law, handing the majority of sticks in their “bundle of rights” back to the public.

Minor schisms in the movement’s history have produced a dizzying array of near synonyms for “open source software”. You may hear “free software”, “libre software”, and ecumenical conjunctions like “free, libre, and open source software”, plus abbreviations like OSS, FOSS, and FLOSS. Formal definitions also exist, like the Open Source Definition, Debian Free Software Guidelines, and the four freedoms, but usage of the terms in the wild (like any social movement) does not always precisely correspond to the formal definitions.

Politically, it’s complicated, but functionally, all these terms are interchangeable, and “open source” is by far the most popular. In legal terms, you’ll know open source software by its license: a fixed, take-it-or-leave-it grant of permission, usually from one of a few families of standard forms, like MIT, BSD, GPL, and Apache.

Blue Oak Council exists not to read you into that great debate, but to provide hard-nosed, practical resources to help under-resourced organizations get the most they can from open software.

Does open source mean no one owns the code?

No, there are owners, and the owners can enforce rules.

When every contributor to a piece of software gives away all their exclusive rights in it, the software comes close to having no owner, in effect. But even the most generous common open source licenses come with rules. Enforcing those rules means bringing infringement claims arguing that licensees failed to follow their licenses’ rules. To bring an infringement claim, you need to own intellectual property, usually copyrights, to begin with.

Even though money changing hands for open source software licenses is rare, you can think of open source licenses as offering a take-it-or-leave-it “deal” to all comers. What open source developers want back varies, but there are clear themes.

Most importantly, nearly all open source licenses disclaim warranties and exclude all developer liability for damage related to the software they’ve licensed. Since they’re not being paid for their work, they don’t want to be responsible for problems the software may cause, even if it turns out to be defective.

Most common open source licenses require keeping copies of copyright notices and license terms with copies of the software. For some kinds of software, those copyright notices have the same effect as credits in the liner notes of a record, or at the end of a film.

Some open source licenses go beyond credit, and try to protect the reputations of contributors and the projects they work on. Some licenses require giving others notices of any changes made, so they can understand any problems come from the changes, and not the shoddy work of the original contributors. Some require changing the name of a program, to avoid users confusing modified versions for “official” ones.

Finally, a large and important class of open source software licenses, “copyleft” licenses, set rules that require others to “share alike”. While copyleft licenses vary widely, nearly all require others who build new software using copyleft software to share and license source code under open source terms.

Legally, all of these open source “bargains” are possible only because contributors to open source software start out, under the law, owning exclusive copyright in their work.

Why isn’t open source inherently charitable?

Many organizations, from cutthroat business firms to the purest of charities, give out free t-shirts. A t-shirt is a wonderful thing to have, and costs money to make. Many of the poorest benefit most from a new t-shirt, and precisely for that reason, many charities give out lots to those in need. But giving out free t-shirts isn’t inherently charitable.

When business firms give out free shirts, they often come in bright colors, emblazoned with logo. Whether as conference handouts or rewards for loyal customers, the low-no cost often belies a high marketing benefit … for the firm. Some of those same logo-bearing t-shirts do end up benefiting those less fortunate. But that’s not the point.

When we hear “open source”, we can take mostly for granted that the product is software, and that the price is free. That’s not enough to say that it’s charity. The software might be purpose-built for charitable purposes, like Scratch, or specific to charities, like CiviCRM. It might seem universal, like WordPress. It could be specific to large corporations spending millions per year on rented servers and cutting-edge developer salaries, released for strategic effect in a highly competitive market segment worth billions, like Kubernetes. It could be a software library with little use apart from accessing paid services. All of those are open source software.

Release of open source as a “loss leader” or “freemium” offering aside, there’s still the question of what developers ask back. In our answer to Does open source mean no one owns the code?, we mention that typical open source licenses impose requirements on users. Some of those requirements, like attribution, help developers build professional reputation, leading to paid work opportunities. Releasing open source software in a particular language or area of technology helps establish experience. Many developers use public profile pages listing their open source contributions as surrogate resumes.

Historically, organizations that are organized to run open source projects have been treated as charities under 501(c)(3), or more recently, trade associations under 501(c)(6). The IRS’ practices in approving non-profit status has varied over the last two decades, and the IRS does not currently provide clear guidance on whether the fact of releasing software or other materials under open source licenses, or creative commons licenses, constitutes charitable activity. Older organizations, like the Free Software Foundation and Apache Foundation, have charitable status, but newer organizations, like Open Stack, tend to be classified as trade organizations. For a time, any application for a non-profit status foundation to develop open source software was usually rejected, but that practice was abandoned in the mid 2010s, and efforts to seek non-profit status have generally been more successful since.

What is a Creative Commons license?

Creative Commons publishes a suite of standardized licenses that aim to encourage sharing, reuse, and (in some cases) modification of writing, art, music, and other copyrightable (non-software) creative work.

The “basic” Creative Commons license, the “Attribution” license, disclaims liability and requires credit for contributors. Creative Commons offers variations of that base Attribution license with additional terms. In general:

There is one more Creative Commons license, their “CC0” public domain dedication. CC0 attempts to waive all copyright, putting the work in the public domain, without any attribution requirement. CC0 is the only option that Creative Commons recommends for software, though unlike modern open source software licenses, CC0 does not address patents that may read on the licensed software.

Are there particular versions of Creative Commons that nonprofits should be using?

It helps to split this question in two:

Inbound Licensing

First, what licenses should nonprofits accept for work by others? Specialists call this inbound licensing.

There’s no general reason nonprofits can’t use work under any Creative Commons license terms. Just like any other licensee, those nonprofits should understand the terms, at least at a high level, and try to follow their requirements.

The most difficult questions usually concern the NonCommercial license variants, like CC-BY-NC-4.0. In relevant part:

Section 1 — Definitions

i. NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.

Section 2 — Scope.

a. License grant.

1. Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to:

A. reproduce and Share the Licensed Material, in whole or in part, for NonCommercial purposes only; and

B. produce, reproduce, and Share Adapted Material for NonCommercial purposes only.

This license restriction has to be addressed on a case-by-case basis. There is no general safe harbor for organizations of a generally noncommercial or charitable nature. Rather, tax-exempt non-profit organizations need to be sure that their particular use case counts as “noncommercial”. This can be especially relevant for software used to derive unrelated business and other income.

Outbound Licensing

Second, what licenses should nonprofits apply to their own work? Specialists call this outbound licensing.

The same concerns that we address in Why isn’t open source inherently charitable? apply to choice of license terms for works other than software, too. Tax-exempt organizations making writing or artwork available to everyone, including commercial users, may face challenges to tax-exemption, just like organizations making software available have faced scrutiny.

Perhaps the most conservative approach is simply to choose NonCommercial Creative Commons licenses for work published by tax-exempt organizations. But in practice, that’s often overkill. If the nature of the work being licensed falls well within the organizations tax-exempt mission, making work freely available even to highly profitable business firms may increase charitable impact substantially. For example, a tax-exempt organization dedicated to fostering cultural understanding might publish guidebooks or model policies of use to human resources departments in government, academia, and business firms. freeCodeCamp, a nonprofit dedicated to technical education, makes its curriculum available under Creative Commons’s Attribution-ShareAlike license.

In addition, some non-profit organizations require that software developed using grant funds must be released under open source licenses (or public domain dedications), only, to ensure there is a public benefit to the resulting materials. Blue Oak Council publishes an example grant condition along these lines.

What are Open Access and Open Publication, and how are they different from each other and from open source?

Open Access is the name of a growing movement of academics and researchers to make their work product, from research papers to data and experimental software, freely available under Creative Commons, open source, and similar terms. In positive terms, Open Access seeks to replicate the success of open source in research. In negative terms, Open Access reacts against increasing enclosure of academic work product by commercial publishing companies seeking private rents on work funded largely by the public.

There are myriad “Open” movements, among them Open Science, Open Government, Open Data, and so on. Terminology is fluid. “Open Publication” once referred to a predecessor to Creative Commons. It may be picked up again to refer to new initiatives.