AI Tool Malus.sh ‘Liberates’ Open Source Code—But Is It Legal or Ethical?

For a small fee, Malus.sh uses artificial intelligence to ingest any software you provide and generate a new version that is "liberated" from existing copyright licenses. The result is a functionally identical piece of software that no longer adheres to licenses requiring open source software to remain free to use and modify—potentially disrupting an already fragile open source ecosystem.

The site is presented as satire, designed to highlight a real issue in open source. However, it also delivers on its promise: Malus.sh is a registered LLC that profits by using AI to produce "clean room" clones of existing software.

"It works." — Mike Nolan, co-founder of Malus.sh and researcher on the political economy of open source software, currently employed by the United Nations

Nolan explained the motivation behind the project: "The Stripe charge will provide you the thing, and it was important for us to do that, because we felt that if it was just satire, it would end up like every other piece of research I've done on open source, which ends up being largely dismissed by open source tech workers who felt that they were too special and too unique and too intelligent to ever be the ones on the bad side of the layoffs or the economics of the situation."

How Malus.sh Exploits a 1982 Legal Loophole

Malus.sh’s legal strategy is rooted in a landmark moment from 1982, when IBM dominated home computing and competitors like Columbia Data Products sought to sell products compatible with IBM’s software without infringing copyright. Reverse engineering IBM’s BIOS would have violated copyright law, so Columbia Data Products pioneered the "clean room" design method.

This approach involved two teams: one analyzed IBM’s BIOS to create functional specifications, while a second, "clean" team—never exposed to IBM’s code—built a new BIOS from scratch based on those specifications. The result was a compatible system that did not violate IBM’s copyright because it did not copy IBM’s technical process and was considered original work.

This clean room method was later validated by case law and popularized in the first season of Halt and Catch Fire. It played a key role in making computing more open and competitive. Today, however, the rise of generative AI has given this method new significance.

AI and the Future of Open Source Licensing

With generative AI, it is now easier than ever to produce software that functions identically to existing open source projects—potentially qualifying as original work that bypasses copyright licenses. Some argue that AI-generated software, built from scratch using specifications, is not derivative and therefore does not infringe on copyright.

Others contend that AI models, by training on vast datasets of existing code, inherently produce derivative outputs. This debate raises critical questions about the future of open source licensing, innovation, and the role of AI in software development.