Proprietary Software vs. FOSS: Challenges with Hybrid Protection Models

This article analyses the reasons and consequences of the fact that open source software has become a portion of the technology used by proprietary companies. It focuses on problems arising from the use of what is designated here as the ‘hybrid’ protection model by commercial companies. The term ‘hybrid’ model refers to a situation where companies incorporate both open source and proprietary code into the final software they release to the market. The coexistence of both the proprietary and the open source software model is essential to promote innovation in the software field. Due to the different and allegedly conflicting principles under which they are based, however, the relationship within the two systems might not always be peaceful. By combining legal theory and empirical research, this paper provides a comprehensive analysis of the “core” legal challenges surrounding the implementation of the ‘hybrid’ model in the context of commercial software, and sheds light on the coping mechanisms companies implement in order to navigate such risks.