Source code escrow is the deposit of the

source code In computing, source code, or simply code, is any collection of code, with or without comments, written using a human-readable programming language, usually as plain text. The source code of a program is specially designed to facilitate the w ...

software Software is a set of computer programs and associated software documentation, documentation and data (computing), data. This is in contrast to Computer hardware, hardware, from which the system is built and which actually performs the work. ...

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 transacti ...

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 (or licence) 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 party (licensee) as an element of an agreeme ...

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 Trade secrets are a type of intellectual property that includes formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ...

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 clauses 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, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restr ...

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 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. Notable examples are the

Internet Archive The Internet Archive is an American digital library with the stated mission of "universal access to all knowledge". It provides free public access to collections of digitized materials, including websites, software applications/games, music, ...

in 2007, the

Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The library ...

in 2006, ICHEG, Computer History Museum, or the MOMA. There are also some cases where software communities act as escrow agent, for instance for ''

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video game Video games, also known as computer games, are electronic games that involves interaction with a user interface or input device such as a joystick, controller, keyboard, or motion sensing device to generate visual feedback. This fee ...

series or Ultima 9 of the Ultima series.

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 software may be deposited into escrow to be released as free and open-source software under an

open source license An open-source license is a type of license for computer software and other products that allows the source code, blueprint or design to be used, modified and/or shared under defined terms and conditions. This allows end users and commercial compa ...

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 ''threshold ...

). For instance, the

Blender A blender (sometimes called a mixer or liquidiser in British English) is a kitchen and laboratory appliance used to mix, crush, purée or emulsify food and other substances. A stationary blender consists of a blender container with a rotating me ...

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

Qt toolkit Qt (pronounced "cute") is cross-platform software for creating graphical user interfaces as well as cross-platform applications that run on various software and hardware platforms such as Linux, Windows, macOS, Android or embedded systems wi ...

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 g ...

Necessity of escrow

Escrow agreements

Third party escrow agents

Software open-sourcing to the public

See also

References

Further reading