The copyright-owner can choose any license they wish to. But if they decide to choose an open source license (lets say Apache 2), how much do they have to conform to the license? Especially, do they have to release the source code somehow (or make it accessible for whoever got the binaries that claim to be Apache-licensed). Or is it just a false claim, that it is open source, if the source isn't available?

  • Keep in mind that a lot of Open Source code is internal to companies. Since FOSS conditions apply only on distribution, internal use is unrestricted even if modified. Of course, in such cases the company modifying and using the FOSS didn't decide on the FOSS license.
    – MSalters
    Jul 8, 2015 at 7:02

2 Answers 2


Software isn't inherently licensed in any particular way. Rather, it is released under a licence; which licence or licences it is released under are at the discretion of the copyright holder. That there can be many different licences under which a piece of software is released should make it clear that the licence isn't an inherent property of the software.

A copyright holder claiming that their software is open source is making a statement with no real content; it can't be right or wrong, for it is meaningless.

If a copyright holder claims to have released a piece of software under an open source licence, but they have not in fact released it in this way (or at all), then they are wrong - because of the lack of a release, rather than because of a mis-statement about an inherent property of the software.

  • Per the Open Source Definition (opensource.org/osd): The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed.
    – massonpj
    Jul 8, 2015 at 2:37
  • @massonpj: That's distribution terms, but distribution per sé is not a requirement.
    – MSalters
    Jul 8, 2015 at 7:03

From Apache version 2.0 (emphasis mine):

  1. Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions:


  1. No one is obliged to redistribute anything.
  2. Even if they do, they don't have to supply the source.

And even with more restrictive licenses like GPL, point 1 still applies.

Additionally, you have to keep in mind that the copyright owner can distribute his project under whatever license they please to different people.

What this means is that you can release your project to people under an open source license and to no one else. And these people are in turn under no obligation to redistribute the project. In the case of Apache you can even make sure the actual source never sees the light of day (I believe).

Putting that aside for a moment though, if you claim that your project is open source and no one can get a copy of the source code, what you're saying is, though perhaps technically correct, incredibly misleading at the least and likely not going to sit well with many people.

  • +1 For the detailed answer. Although as an addition to it, there are softwares, which do not have binary/object forms (Bash, PHP, Python, JS and et al) In which case the author might refer to the actual distribution which in fact is the actual source code. Jul 7, 2015 at 12:36
  • 6
    Just to add a bit more to what you've already said, you can legally use the Apache license to distribute binary-only releases, but your distribution would fail the OSI definition of "open source" (namely, requirement #2, "Source Code"). So, you're using an OSI-approved license, but using it in way that doesn't qualify as open source. (Unless you actually wrote the binary by hand using a hex editor or something, and the binary really is the actual source code.)
    – apsillers
    Jul 7, 2015 at 12:36

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