The Non-Discrimination Principle in Open Source Licensing

Open source communities have required licenses to satisfy requirements of non-discrimination. This principle of non-discrimination, however, has remained peripheral to the interpretation of open source licenses, with legal analysis concentrating on other aspects of open source regimes. This Article argues that non-discrimination, far from being marginal to open source, constitutes the central legal characteristic of the licensing model, and that an appreciation of the non-discrimination requirement is essential for understanding the economic incentives and effects of the open source license. This Article applies this understanding of the non-discrimination principle to interpret specific terms in free and open source licenses.

In a number of instances, the interpretation consistent with the non-discrimination principle stands in contrast to generally accepted understandings of specific license provisions.