Open Source Software
It’s hardly a secret. In the legal profession, very few attorneys draft contracts and other legal documents entirely from scratch. While all contracts have their unique elements, there’s almost always some portion that can be “cut and pasted” from other documents that an attorney has used before. The same is true with software and I.T. development. It’s common for software developers to “borrow” portions of software from other projects or to download code from the Internet. While the risks of infringement abound where a developer does this, the problem is far more complicated when a developer incorporates open source software into a company’s proprietary software.
What is Open Source?
Open source software is software whose source code is freely distributed and available to the general public. “Free,” however, doesn’t mean that there is no financial cost. Richard Stallman, one of the leading proponents of open source, has stated: “Think of ‘free’ as in ‘free speech,’ not as in ‘free beer.’” Companies such as Sun Microsystems, Red Hat Linux, and Apache have built their business models around the development of open source products. Users can modify, copy, and distribute the source code without paying the developer royalties. With proprietary software, the user would have to get the developer’s permission before they could modify the code. The theory behind open source is that innovation will occur more quickly when more people have access to source code and can collaborate to make modifications.
What are the Risks to My Company of Using Open Source Software?
The goal may be commendable, but the use of open source software in your
company’s proprietary code can be devastating. If your employees
or contractors make unfettered use of open source when developing your
company’s proprietary products, you could be forced to release the
source code to others and grant an extensive license in the entire work.
Vigorous compliance efforts are essential.
Even if your company has an open source policy that regulates your on-site or domestic programmers, problems have also arisen when a company outsources its development efforts overseas. In one survey, over half of the programmers in corporate America admitted to using open source software in connection with their development efforts. Of those, approximately 40% did so without telling their superiors. It is naiveté to think that open source issues will never impact your company.
If an in-house developer incorporates portions of open source software into a proprietary product, the entire resulting work could become subject to the open source license. This could mandate liberal distribution of your source code. While it may save developers a great deal of time and effort, using open source can have a devastating impact on your company if it’s not diligent about ensuring the proprietary nature of its software.
There are over 50 types of open source licenses currently. They can each impose very different obligations on a company’s source code. It’s also not uncommon for many of these licenses—some of which were not drafted by attorneys or licensing professionals—to have provisions that conflict or contradict each other within the license itself. Further complicating this matter is that there is very little (if any) case law interpreting these licenses. How a court would even construe these licenses is unclear at this time. From a legal perspective, far more questions than answers exist in the open source field.
 The threat posed by open source is not merely academic. In 2003, IBM announced
its purchase of Think Dynamics, a Toronto-based software developer. During
the due diligence phase, an examination of Think Dynamics’ code revealed
80 to 100 examples of open source that its programmers incorporated and
attempted to pass off as their own. Consequently, because of concerns as
to whether the software was still proprietary, the purchase
price of the company decreased by $21 million, reduced from $67 million
to $46 million, much to the considerable upset of the owners and shareholders.
In another example: Linksys, a company purchased by Cisco for $500 million in 2003, made a router allowing users to connect on a wireless network. The Linux software in the router was later discovered to be distributed under the GNU General Public License (“GPL”), one of the most influential open source licenses. The disputed software was embedded on chips provided by Broadcom. While the dispute was eventually resolved, it illustrates the dangers of incorporating open source software. In fact, the Free Software Foundation, located in Boston, Massachusetts, controls the licensing process for Linux. They have initiated hundreds of “enforcement actions” since 1991 when the current version of the GPL was first published.
What if My Company Wants to Use Open Source?
Even if your company wants to use open source software in its business model, choosing the right license is critical. Not all open source licenses are equal. Far from it. Some licenses, such as the GPL and the Mozilla Public License (“MPL”) are “reciprocal” in nature and can impose obligations on a licensee to disclose and distribute its source code and otherwise make it freely available. Some licenses are “academic,” such as the Berkeley Software Distribution (“BSD”) or Apache licenses. These types of licenses allow for the free use, modification, and distribution of software without imposing any reciprocal obligation on the licensee. In other words, academic licensees can keep their software proprietary if they choose to.
How each of these licenses addresses patent rights, copyrights, trademarks, and derivative and collective works are all critical for a company to consider before committing itself to one license or another. Furthermore, how each of these licenses relates to each other when contributions from different open source licenses are integrated into a single project can be very problematic. For example, while a contribution created under a BSD license can be used in a GPL-licensed work, a GPL-licensed contribution cannot be used in a BSD-licensed work due to incompatible license provisions. Issues such as these require careful scrutiny and in-depth legal analysis.
At the Law Offices of Daniel A. Batterman, we understand the implications of using open source software. We understand how your company’s rights in its intellectual property can be affected when open source is incorporated into your company’s projects and how your business model can be impacted by choosing an open source license. We are also familiar with the complicated legal issues that can arise when different open source licenses are used in a single project. We can help guide your company through the issues associated with using open source and can help alleviate your risks.
|
