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Commercial Open Source?

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Here’s a wrinkle that many devotees of open source either don’t know about, or don’t talk about. As it turns out, open source projects can get acquired by commercial software companies. And to prove that point, one of the more popular open source projects on was acquired last week. To what extent the acquisition of an open source project results in its being taken out off the open source shelves depends on many things. For example, how many people were contributing to it before the acquisition, who are they, and what are their plans now that their open source project has been acquired?

To acquire an open source project, the acquirer has to, with almost 100 percent certainty, be sure that they are acquiring the copyrights to all of the code being used in the project. Those copyrights ultimately belong to the individual contributors to the project who, up until the point of acquisition, would have been bequeathing certain rights to their code to others under whatever open source license is behind the project. To the extent that licensing that code under an OSI-approved license is what let the code out out of the box and into the open source wild, there’s nothing that the acquirer can do to put it back in the box. That code will always remain available under whatever open source license it was published. But, by acquiring the copyrights and any trademarks that are associated with that code, the acquirer also acquires the right to modify and distribute the original code without having to make those modifications available under an open source license. In other words, future versions of the open source software could become closed source. So, how could this play out?

With a project like Linux, there’s pretty much a zero probablility of the project ever being acquired because of how many contributors are involved. Not only would it be difficult to track them all down, establish with some degree that they are indeed the copyright holders, and reach some mutually beneficial financial arrangement to give an acquirer all the rights they need. There’s also the high likelihood that some passionate group of developers would take the core body of source code that was already available under an open source license (the GPL), and exercise their rights to continue the evolution of an open source version of Linux. The end result, even if someone successfully "acquired" Linux, would be a tangible forking of the code. One fork would be open source version that the passionate community carried forward. The other would be the commercial derivative that was some percentage open source (by virtue of the "grandfathered" code base), and some percentage closed source.

But what about a popular open source project that has far fewer developers with far fewer copyrights to track down? Sure, the developers could sell their copyrights to the acquirer, but nothing prevents them from continuing to evolve the already open-sourced code under an open source license. That is, unless, in the process of acquiring the copyrights to the source code, the acquirer also hires the most passionate developers — the driving forces — behind the open source project.

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