Define: Open Source Code
Open Source Code is software code that is publicly distributed under a license permitting free use, modification, and redistribution, such as the GNU General Public License or Mozilla License. In a contract, the term identifies code subject to special obligations, since combining it with proprietary code can trigger disclosure, attribution, or copyleft requirements affecting ownership and licensing.
Legal accuracy standard set & glossary spot-checked by Imad Mohammed Nazar , Skadden-trained M&A lawyer, Legal Engineer at GenieAI
What Open Source Code Means in a Contract
In a commercial agreement, Open Source Code refers to software components that are made available to the public in source code form under a license that allows anyone to use, study, modify, and redistribute them. Unlike proprietary software, which is licensed under restrictive terms controlled by a single owner, open source software is governed by a published license that grants broad freedoms in exchange for certain conditions, most notably that derivative works often must also be shared under the same terms.
When a contract defines Open Source Code, it is usually doing so to carve out a category of software that behaves differently from the rest of the deliverables or licensed materials. This distinction matters because open source licenses can impose obligations that follow the code wherever it goes, even after it has been incorporated into a larger commercial product. A well drafted definition puts both parties on notice that special rules apply.
How Open Source Code Is Defined or Measured
Most definitions of Open Source Code in commercial contracts are built around two elements: public availability in source form and a license that permits modification and redistribution. The definition frequently lists well known license families by name, such as the GNU General Public License, GNU Lesser General Public License, Mozilla License, and Common Public License, because these licenses have distinct and well understood consequences for combined or derivative works.
Some open source licenses are described as.
Relevant Circumstances
- When software being licensed or developed contains open-source components
- If copyleft or attribution obligations may affect proprietary code
- Where due diligence requires disclosure of open-source dependencies
Relevant Sectors
- IP & Licensing
- Technology
- Legal Services