Research On Legal Issues Of Copyright Of Open Source Softwar

Open source software refers to the intellectual property owner of computer software,which opens the intellectual property license of software vertically and allows the subsequent software users to use the software within a specific scope of license under the condition of the predetermined open source license terms.Among them,open license refers to the licensing of non-specific people,vertical license refers to the licensing of different levels of deductive behavior of open source software.Open source software originates from the open source movement initiated by computer software developers in the spirit of freedom,collaboration and sharing,aiming to avoid the phenomenon that software manufacturers monopolize software source code by virtue of the characteristics of double confidentiality of law and technology of computer software,and prevent common developers from learning software knowledge and improving software.On the one hand,the intellectual property owners of open source software open the intellectual property of licensed software vertically through the open source license,on the other hand,they require open source users to perform the corresponding information maintenance obligations and open source obligations,and jointly create and maintain the open source ecology of freedom,cooperation and sharing.Copyright protection is the mainstream mode of computer software protection,and copyright legal issues are also the main legal issues faced by open source software practice,which mainly includes three aspects.First,the legal protection mode of open source software copyright license is misplaced.The mainstream view is that open source license is a copyright license use contract.The "contract theory" of open source license has four problems: difficult to determine the establishment requirements,invalid requirements are not valid,leading to "license redundancy" and atypical contract disputes.The causes include the incompatibility between the contract license model and the open source license model,the dependence of the contract path,and the conflict between the open innovation concept and the traditional intellectual property concept.Second,the legal relationship of open source software is ambiguous,including the scope of the object is blurred,the relevant subject is separated and not unified,and the formatted contract terms face the risk of invalidation.The causes of the problems include the non-standardization of the format and expression of the open source license clause,the ambiguity of the scope of the object caused by the software technology attribute,and the general recognition of the legal effect of the license contract.Third,the legal liability of open source software is empty and confusing,including the liability for breach of contract is not strong enough,the "contract theory" makes it difficult to establish tort liability,and the legal liability for infringement of closed source software is unclear.The reasons are mainly from the lack of legal liability provisions in the license,the "contract theory" of open source license causes the concurrence of liability for breach of contract and liability for infringement,and the existing legal liability mode does not fit the characteristics of open source license well.In terms of the dislocation of legal protection mode of open source software copyright license,open source license is actually a unilateral copyright license.Its basic structure includes the unilateral license behavior that declares open source license and the actual license reason of "ensuring open source by open source and exchanging open source by open source".The declaration action is a requirement for the establishment and effectiveness of a unilateral license of open source software,which must be made to the unspecified public;And the consistency statement of open source license is the necessary condition for the legal relationship of single license of open source software.The unilateral license of open source software copyright is highly consistent with the open source concept and the open source practice.It avoids many problems mentioned in the open source license contract and helps the system to solve the illegal use of open source software.There are two ways to improve the copyright license mode of open source software: one is to create a unilateral copyright license system;the other is to make clear that the effective source of open source license is unilateral license.On the ambiguity of the legal relation of open source software copyright,we should start from the definition of the object range of open source software copyright.Function module is the basic unit of computer software,is the concentrated embodiment of computer software originality.The object range of open source software is determined with function as the center,and the part of the modified software that belongs to the improvement of the basic software function constitutes the derivative use and belongs to the object range of the legal relationship of open source software.Modifying software that is not a functional improvement of the underlying software constitutes free use and is not subject to the open source license.If there is a special case that the interface part linked between functional modules constitutes transformational use,this part does not belong to the object scope of the legal relationship of open source software.After determining the scope of the object of open source software copyright,the subject of rights protection,the subject of responsibility and the content of responsibility in the legal relationship can be clarified.The method of determining the object scope of open source software with function as the center is clear,operable and applicable to the whole field of open source software.It balances the tendency of rigid protection and fragmented protection of open source software.However,the disadvantage lies in the high cost of applying this method.The measures to improve the definition of the scope of the object of open source software copyright are to take originality as the standard and function as the center,and to allow technical investigators to participate in the litigation activities of cases involving open source software.On the issue of legal liability for the copyright of open source software,based on the unilateral license of the copyright of open source software,the use behavior without the valid copyright license of the right holder constitutes infringement.At the same time,it is necessary to consider the subjective fault and public interest factors of open source users to determine the way of bearing tort liability.In principle,if there is illegal use of open source software,the infringer should bear the responsibility to stop the infringement and compensate for the loss.In exceptional cases where the public interest is involved,non-cessation of infringement and its alternative measures may be applied.If the violator voluntarily resumes the obligations of open source and information maintenance,its infringement liability shall be reduced.In the case that open source software infringes non-open source software,the open source software mixed with the protected code is an illegal deduction work,which applies to the negative copyright protection theory consistent with the unilateral license mode.In the specific responsibility mechanism,non-open source copyright holders and bona fide open source users will be protected in principle.Consider exempting bona fide open source users from liability for damages if they do not use the software for commercial purposes.Finally,from the perspective of improving the liability of copyright infringement of open source software,the overall judgment mechanism of copyright infringement of open source software can be clarified,and the right of recourse to malicious open source users can be granted to the well-intentioned open source users.