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Did Goldman Sachs “hoard” open source code?

Open Source code may be free, but it’s not free for the taking. In today’s “Above the Law” blog Joe Patrice has an interesting take on open source “hoarding.” That’s when open source code is modified to create new software, and then that newly developed bit of software is not returned to the public.

It’s the open source part that’s causing problems here. Open source means that the creator is giving away use of his or her content – in this case code, but that doesn’t mean that there’s not a license. The creator of the code maintains control over the code – that’s the key part of a license – and is simply providing a cost free license to use the code. There’s usually a caveat, and it’s a big one. The modified code must be returned to the public domain. And that cost free license can be breached. It’s the law.

Joe Patrice delves into Michael Lewis’ reporting on the prosecution of Goldman Sachs computer programmer Sergey Aleynikov. It’s a great article. Aleynikov was prosecuted – seemingly at the behest of Goldman Sachs – and convicted for stealing high frequency trading code from Goldman Sachs. The problem was that at least some of the code in Goldman’s servers was derived from open source code. That could mean that some of the code that Aleynikov was accused of stealing was derived originally from open sources and should have been open to anyone who wanted to use it. Aleynikov served only one year of an eight year sentence before he was released by the Second Circuit.

If you don’t understand the nuances of all of that, you’re not alone. Apparently, both the prosecutors and the jury in the Aleynikov case didn’t understand it either. The primary takeaway from all of this is that licenses do matter even when content owner chooses to give it away. Licensing is about control and the decision about how and what to charge for a license, if anything, remains attached to code or any other form of content regardless of its price.

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