Open source software (OSS) has become a staple of corporate technology, with its free access and well-maintained bug fixes making the resource invaluable to corporations and their developers. However, the common practice of OSS sharing often fails to look at what lies within the fine print of its use: OSS licensing and the intellectual property landmines that are contained therein.
Users may be vulnerable to legal action by OSS developers (or others making use of the corporation’s proprietary software) if they find themselves having produced or purchased proprietary software that is beholden to open source licensing guidelines.
Original developers of OSS have the ability to bring breach of contract and copyright infringement claims against those who copy or modify their open source code. This most frequently happens where subsequent developers (“downstream users”) incorporate open source code into their own software and then distribute that software (the “derivative work”) in a way that does not comply with the original OSS licensing terms. Organizations trying to sell or distribute proprietary software to third parties may find themselves in hot water if they do not catch OSS in their source code; if open source code was incorporated into the work at any point in the development of a proprietary software, all or part of the work may be bound by OSS license principles.
Users may be particularly vulnerable to open source litigation where the infringed OSS license is offered through a dual licensing scheme. Dual licensing is a sales structure where customers have the option to use the software for free as OSS, and accept to be bound by open source licensing, or to purchase a proprietary license from the developer without the restrictive open source obligations. Users should accordingly remain particularly in tune to any upstream OSS licensing that is bound to a dual licensing system, as the incentive for a developer to pursue litigation and plead damages on the breach may be notably stronger.
Increased enforcement of contract and copyright disputes in the OSS sector has given rise to new fears and opportunities around patent infringement litigation and OSS. Some OSS licenses have begun to incorporate express patent grant clauses into their licensing terms to protect OSS from this intellectual property claim, but many OSS licenses are silent on the matter of patents. As a result, users remain susceptible to potential patent allegations in addition to copyright infringement claims. A developer who has patented their open source code may technically maintain a reserved right to sue downstream users of the OSS on patent infringement.
The relationship between patents, software, and open source code is not settled. Certain software improvements can possess legitimate patents that are not directed at an abstract idea. The door is therefore open for direct patent infringement claims to be brought by OSS developers against downstream developers. So long as the issue of patent infringement of OSS remains unresolved, it is important for corporations to keep up to date with the state of patent licensing on their software products.
The creation of thorough open source policies and OSS due diligence programming is essential in the commercial development and use of software. Through these mechanisms, organizations can protect themselves from potential open source litigation backlash as they navigate and continue to use open source software.
