Make sure open source software won't hurt your business
Commercially minded legal advice from an expert software solicitor and qualified software engineer
- Is a business suggesting you use open source software in a project, but you’re not sure whether it's OK?
- Claims being made against your business for misusing open source software?
- Reap the benefits of open source software
- Protect your business
Software contracts can be complex agreements in business to negotiate. Then add open source software the mix.
Select solicitors properly qualified to advise you
We have found that the rights associated with open source software are often more well known to developers than solicitors. We have come across solicitors that take the attitude open source software cannot or must not form part of SaaS or licensed software.
That can’t be right. Open source is such a fundamental and indispensable part of a large proportion of projects in the industry.
Uncertainty in business the environment arises because the rights associated with open source software and how it can (and can't) be used is not common knowledge. Some open source contracts are complicated from a legal perspective.
It can become difficult to see the woods for the trees. You don't want a lawyer advising you on a contract like this which they have only just read for the first time.
Projects and dependencies between packages can complicate quickly. What happens in the real world with the technology needs to be rounded off with the legal rights granted– which is what really matters to protect your business from being criticised or sued.
There is much misinformation and content on internet that does not tell the whole story with open source out there.
What is right and what is wrong? Misconceptions arise which can build themselves into the community.
What Matters when using Open Source Software?
One of the lead issues in proprietary software projects which incorporate open source software is ownership of the software, and whether ownership can be transferred.
You might have understandings with your business partners about use of open source software in projects. It is the terms of the contract you use that really matters.
Thinking that using open source licensed under the BSD is not necessarily the answer to the problems with ownership.
Factors: Open Source Legal issues
Amongst the factors in that open source software introduce in SaaS and software licensing contracts are:
- what can be owned, assigned and licensed to the business paying for the services – and what can’t. And why it matters
- intellectual property indemnities in software licensing contracts, SaaS agreements and hosting agreements expose businesses to real risk, on both sides of the table
- rights to use of deliverables, and the consequences under OSS licences
- limitations of liability clauses. That's a big one.
- service levels, and the reliance upon third party open source software
- warranties relating to ownership of deliverables and the product of the services
- warranties touching on the performance of software
- technology refreshment and upgrades
- delivery of source code under an escrow agreement - and whether that is even possible without infringing third party rights and causing a breach of contract
Intellectual Property Indemnities
Ownership and intellectual property indemnities become problematic, such as:
- What happens when you give a full title guarantee to source code and a portion of the source code is made up of open source software? The service provider does not own the software and so cannot give good title to the software.
- What if the contract says that the customer owns all of the intellectual property rights in a software product, and the developer actually doesn’t and never will?
- What happens if you sign a contract which says there is no OSS is allowed, but there is OSS in the product delivered?
Sometimes it is not as easy as you might think. Simply restricting yourself to BSD licenced software does not avoid or fix the problems that might arise. BSD does not grant ownership rights to the software licensed.
Sometimes you cannot work out the answer without looking through Git Repos, looking through the code in production and the open source code itself in the form it was distributed. Then you need to know what to look for.
Exposure to Business Risk
As a supplier of software or software-as-a-service products, get it wrong and your business faces a breach of contract claim from the customer, and perhaps worse (in some cases) the reputational damage arising from criticism of the open source community.
In the worst cases, there may be contractual requirements to produce a non-infringing version of the software or pay out on an intellectual property indemnity. Then there is the prospect of copyright or patent infringement claims, and having to stop using the software you thought you properly licensed. There is a lot at stake. it can tunr your business on its head.
These are not reasons to not use open source software. They are reasons to make sure your contract handles the legal issues properly.
Our Open Source Lawyer's Experience
We have advised on open source in a number of ways.
- Mistakes and conflicts between what people say your rights are and what they actually are. Someone says you are infringing copyright or in breach of an open source licence, when you aren’t
- gettingyour software development process right the first time, from a legal perspective
- Advising on the technical steps to comply with these licences – most of which you will not find online.
If you think no-one's looking, wait until you seek investment or another business takes an interest in buying your business
- How open source software can be used in commercial software and development with minimal risk
- How can OSS be built into proprietary software packages without falling foul of the open source licences under which it was obtained – even the most copyleft licences.
- Adopt the processes and procedures that your developers need to be aware of before they use open source software or you distribute it your own
- The fundamental “what does this [insert open source licence name] do?” and “Can we [insert] this software which is released under [insert open source licence name]?”
- Are we using this open source in a way which will not offend anyone’s rights
- What is a sensible licensing models where open source software plays a part?
- An open source developer is making claims against my business. Are they right in what they say? If they are, what do I need to do about it? If not, how do I get them off my case?
Recent Legal Advice on Open Source Law
We have recently advised:
- a small business to licence enterprise class software to a national energy company. All the manoeuvres in the negotiations, the to-ing and fro-ing, editing of terms to match the commercial agreement. In some cases, we were left to draft the clauses that matched that the other side wanted to implement
- a hardware manufacturer that embedded open source software on its products, and then faced claims of infringement by the open source developers, all of which were without foundation
- checking open source legal documents for legal compliance
Experts on Open Source Legal Issues
What a resource open source software is. Used throughout the industry to reduce costs, speed of development.
You laod up packages, components and libraries maintained by a larger community. Sometimes at a cost and sometimes not. Open source software can also be the project itself, or be part of the project.
These are benefits that most business can’t be without.
Nor should yours.
Protect your business and your outlay of time, money and resources.
Minimise your risk profile. Avoid the pitfalls and traps that catch the unwary.
Avoid real problems when you sell your business and look investment and take advice now.
Get advice from a specialist open source software solicitor.