Software Best Practices and Open Source Derivative Works

We received a request not long ago from one of the lawyers in our Online Media Legal Network who is looking for legal resources on a couple different issues tied to software development, particularly open source software development.  And frankly, they're the sorts of resources that we expect more and more lawyers will have need for.  Thus, we're reposting the requests here - along with my first stab at researching them - in the hopes of drumming up a bit of crowdsourcing to find the answers.

The first request was for best practices, procedures, and policies relating to management of the software development function. Of particular concern is situations where developers are writing original code, licensing commercial code, and using open source code in developing software that is redistributed to nonprofits.  What recommendations are out there for such best practices in complying with the various licenses?

I found three possible resources for this, each with a somewhat different focus.  The first, an IBM article on software development best practices, is mostly for the techie set.  It's also a little old - apparently last updated in 2006 - so it's likely missing newer innovations in the field.

The next is an article from on open source software development - closer to what the lawyer is looking for, I think.  But it's still on the techie, rather than legal, side, and a few years old to boot.

Lastly, and what the lawyer found most helpful, is an article on entitled "Best Legal Practices for Open Source Software."  Certainly, it has all the keywords we wanted.  But it too is a few years old, and so may not be up to date.

Next, the lawyer was wondering at what point the GNU General Public License ("GPL") kicks in and "infects" other software. As the lawyer says, "Clearly derivative works are covered, but I am trying to get a better handle on how much linking, touching, combining, etc. gives rise to the viral requirement."

As near as I can tell, there's next to no case law on this.  I have found a few law review articles that seem to at least touch on the subject, though:

Joseph A. Chern, Comment, Testing Open Source Waters: Derivative Works Under GPLv3, 13 Chap. L. Rev. 137 (2009).

John Tsai, Note, For Better or Worse: Introducing the GNU General Public License Version 3, 23 Berkeley Tech. L.J. 547 (2008).

Ron Phillips, Deadly Combinations: A Framework for Analyzing the GPL's Viral Effect, 25 J. Marshall J. Computer & Info. L. 487 (2008).

Lothar Determann, Dangerous Liaisons -- Software Combinations as Derivative Works? Licenses, and the GPL: Distribution, Installation, and Execution of Linked Programs Under Copyright Law, Commercial Licenses, and the GPL, 21 Berkeley Tech. L.J. 1421 (2006).

I'd guess that others have thought about this as well.  Any thoughts, dear readers?

Arthur is the intake attorney for the Online Media Law Network at the Berkman Center. Before attending law school, he was the online news editor at The Christian Science Monitor.


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