Source code escrow is the deposit of the

source code In computing, source code, or simply code or source, is a plain text computer program written in a programming language. A programmer writes the human readable source code to control the behavior of a computer. Since a computer, at base, only ...

software Software consists of computer programs that instruct the Execution (computing), execution of a computer. Software also includes design documents and specifications. The history of software is closely tied to the development of digital comput ...

with a third-party

escrow An escrow is a contractual arrangement in which a third party (the stakeholder or escrow agent) receives and disburses money or property for the primary transacting parties, with the disbursement dependent on conditions agreed to by the transact ...

agent. Escrow is typically requested by a party licensing software (the licensee), to ensure maintenance of the software instead of abandonment or orphaning. The software's source code is released to the licensee if the licensor files for bankruptcy or otherwise fails to maintain and update the software as promised in the software

license agreement A license (American English) or licence (Commonwealth English) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit). A license is granted by a party (licensor) to another part ...

Necessity of escrow

As the continued operation and maintenance of custom software is critical to many companies, they usually desire to make sure that it continues even if the licensor becomes unable to do so, such as because of bankruptcy. This is most easily achieved by obtaining a copy of the up-to-date source code. The licensor, however, will often be unwilling to agree to this, as the source code will generally represent one of their most closely guarded

trade secret A trade secret is a form of intellectual property (IP) comprising confidential information that is not generally known or readily ascertainable, derives economic value from its secrecy, and is protected by reasonable efforts to maintain its conf ...

s. As a solution to this conflict of interest, source code escrow ensures that the licensee obtains access to the source code only when the maintenance of the software cannot otherwise be assured, as defined in contractually agreed-upon conditions.Heusler/Mathys, p. 178.

Escrow agreements

Source code escrow takes place in a contractual relationship, formalized in a source code escrow agreement, between at least three parties: * one or several licensors, * one or several licensees, * the escrow agent. The service provided by the escrow agent – generally a business dedicated to that purpose and independent from either party – consists principally in taking custody of the source code from the licensor and releasing it to the licensee only if the conditions specified in the escrow agreement are met. Source code escrow agreements provide for the following: * They specify the ''subject and scope'' of the escrow. This is generally the source code of a specific software, accompanied by everything that the licensee requires to independently maintain the software, such as documentation, software tools or specialized hardware.Heusler/Mathys, p. 179. * They oblige the licensor to put ''updated versions'' of the software in escrow in specific intervals. * They specify the ''conditions'' that must be met for the agent to release the source code to the licensee. Typical conditions include the bankruptcy of the licensor, the cancellation of a software development project or the express unwillingness of the licensor to fulfil his contractual maintenance obligations. Because it is often important to the licensee that the code be released as soon as possible once the conditions are met, the conditions tend to be worded as plainly and unambiguously as possible.Heusler/Mathys, p. 180. * They circumscribe the ''rights obtained by the licensee'' with respect to the source code after the release of the software. These rights are generally limited and may include the right to modify the source code for the purpose of fixing errors, or the right to continue independent development of the software. * They specify the ''services'' provided by the escrow agent beyond a simple custody of the source code. Specialised agents may, for instance, verify that the source code storage media is readable, or even build the software based on the source code, verifying that its features match the binary version used by the licensee. * They may provide that

non-compete clause In contract law, a non-compete clause (often NCC), restrictive covenant, or covenant not to compete (CNC), is a clause under which one party (usually an employee) agrees not to enter into or start a similar profession or trade in competition again ...

s in the licence agreement, such as any that prohibit the licensee from employing the licensor's employees, are void in the event of the release conditions being met, enabling the licensee to acquire the know-how required for the maintenance of the software. * They also provide for the ''fees'' due to the escrow agent for his services.Heusler/Mathys, p. 181. Whether a source code escrow agreement is entered into at all, and who bears its costs, is subject to agreement between the licensor and the licensee.

Software license agreement An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or End user, end-user. The practice of selling licenses to rather than copies of software predates the recognition of software copyright, w ...

s often provide for a right of the licensee to demand that the source code be put into escrow, or to join an existing escrow agreement.

Bankruptcy Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the deb ...

laws may interfere with the execution of a source code escrow agreement, if the bankrupt licensor's creditors are legally entitled to seize the licensor's assets – including the code in escrow – upon bankruptcy, preventing the release of the code to the licensee.Heusler/Mathys, p. 182.

Third party escrow agents

Museums, archives and other GLAM organizations have begun to act as independent escrow agents due to growing

digital obsolescence Digital obsolescence is the risk of data loss because of inabilities to access digital assets, due to the hardware or software required for information retrieval being repeatedly replaced by newer devices and systems, resulting in increasingly ...

. Notable examples are the

Internet Archive The Internet Archive is an American 501(c)(3) organization, non-profit organization founded in 1996 by Brewster Kahle that runs a digital library website, archive.org. It provides free access to collections of digitized media including web ...

in 2007, the

Library of Congress The Library of Congress (LOC) is a research library in Washington, D.C., serving as the library and research service for the United States Congress and the ''de facto'' national library of the United States. It also administers Copyright law o ...

in 2006, ICHEG,

Computer History Museum The Computer History Museum (CHM) is a computer museum in Mountain View, California. The museum presents stories and artifacts of Silicon Valley and the Information Age, and explores the Digital Revolution, computing revolution and its impact ...

, or the

MOMA The Museum of Modern Art (MoMA) is an art museum located in Midtown Manhattan, New York City, on 53rd Street (Manhattan), 53rd Street between Fifth Avenue, Fifth and Sixth Avenues. MoMA's collection spans the late 19th century to the present, a ...

. There are also some cases where software communities act as escrow agent, for instance for ''

Wing Commander Wing commander (Wg Cdr or W/C) is a senior officer rank used by some air forces, with origins from the Royal Air Force. The rank is used by air forces of many countries that have historical British influence. Wing commander is immediately se ...

video game A video game or computer game is an electronic game that involves interaction with a user interface or input device (such as a joystick, game controller, controller, computer keyboard, keyboard, or motion sensing device) to generate visual fe ...

series or

Ultima 9 ''Ultima IX: Ascension'' is a 1999 Role-playing video game, role-playing video game developed by Origin Systems and published by Electronic Arts for Microsoft Windows. It is the ninth and final main installment of the ''Ultima (series), Ultima'' ...

of the

Ultima series ''Ultima'' is a series of open world fantasy role-playing video games from Origin Systems, created by Richard Garriott. Electronic Arts has owned the brand since 1992. The series had sold over 2 million copies by 1997. A significant series in c ...

Software open-sourcing to the public

The escrow agreements described above are most applicable to custom-developed software which is not available to the general public. In some cases, source code for

commercial off-the-shelf Commercial-off-the-shelf or commercially available off-the-shelf (COTS) products are packaged or canned (ready-made) hardware or software, which are adapted aftermarket to the needs of the purchasing organization, rather than the commissioning of ...

software may be deposited into escrow to be released as

free and open-source software Free and open-source software (FOSS) is software available under a license that grants users the right to use, modify, and distribute the software modified or not to everyone free of charge. FOSS is an inclusive umbrella term encompassing free ...

under an

open source license Open-source licenses are software licenses that allow content to be used, modified, and shared. They facilitate free and open-source software (FOSS) development. Intellectual property (IP) laws restrict the modification and sharing of creative ...

when the original developer ceases development and/or when certain fundraising conditions are met (the

threshold pledge system The threshold pledge or fund and release system is a way of making a fundraising pledge as a group of individuals, often involving charitable goals or financing the provision of a public good. An amount of money is set as the goal or ''threshol ...

). For instance, the

Blender A blender (sometimes called a mixer (from Latin ''mixus, the PPP of miscere eng. to Mix)'' or liquidiser in British English) is a kitchen and laboratory appliance used to mix, crush, purée or emulsify food and other substances. A stationary ...

graphics suite was released in this way following the bankruptcy of Not a Number Technologies; the widely used

Qt toolkit Qt ( pronounced "cute") is a cross-platform application development framework for creating graphical user interfaces as well as Cross-platform software, cross-platform applications that run on various software and hardware platforms such as L ...

is covered by a source code escrow agreement secured by the "KDE Free Qt Foundation". There are many cases of end-of-life open-sourcing which allow the community continued self-support, see

List of commercial video games with later released source code This is a list of commercial video games with later released available source code. The source code of these commercially developed and distributed video games is available to the public or the games' communities. Background Commercial video ga ...

Necessity of escrow

Escrow agreements

Third party escrow agents

Software open-sourcing to the public

See also

References

Further reading