Open source data from an organization is open to the public for use, by way of public licensing to that effect. Copyright holders who participate in open source licensing conceivably have no economic rights being violated when a licensee does not comply with the license. But what is the definition of an economic right? The granting of a public license, from which the copyright owner receives no royalty or fee, would appear to be devoid of an economic right that could possibly be infringed since there is no dollar value being received by the licensor.
In August, the Court of Appeal for the Federal Circuit delved into this particular issue and whether a copyright owner who grants public licenses can later sue a licensee for infringement if the license does not require an exchange of money for the grant of the license.
The court found that there are economic rights in publicly licensed software. Public licenses that condition the licensee to provide notice of the public license and attribution, "directly serve[s] to drive traffic to the open source incubation page and to inform downstream users of the project." "Through this controlled spread of information, the copyright holder gains creative collaborators to the open source project... the copyright holder learns about the uses for his software and gains others' knowledge that can be used to advance future software releases." This equates to an economic right. The fact that the economic right is not "dollar-dominated" makes it no less entitled to legal recognition.
Therefore, just because the software is free, it does not permit the licensee to disregard the conditions stated in the license. Companies incorporating open source software into proprietary works need to heed the license conditions stated by the licensor or else they face significant attorneys' fees and damage awards later to the licensor of the public software.
If your company incorporates open source software into proprietary applications, care needs to be taken to assure that as the licensee, your company is in compliance with the conditions of the license. LGP is skilled in counseling clients on any of the issues that may arise when one chooses to incorporate public software into proprietary applications.