The Pitfalls of Open Source Litigation (InternetNews.com)

Posted Aug 8, 2008 0:51 UTC (Fri) by gdt (subscriber, #6284) [Link]

Enterprises do two things with open source software: they use distributions and they write software for use in-house. The legal risk from either of those is small, as they are not the distributing party for either of those actions.

This minor legal risk does not justify the expensive measures that Peters suggests. One of the business benefits of open source software is its lack of related expenses. Expenses such as: "From the beginning you must audit your open source software... and you must track and audit usage".

There is a legal risk surrounding distribution: both in complying with the license and in the increased likelihood of detection of patent infringement. So all a typical enterprise need to do to comply with open source software licenses is to remind managers to contact the enterprise's legal affairs office if managers plan to distribute software or software-containing goods beyond the enterprise.

That software can then be inspected, and the related licenses adhered to. For open source licenses this isn't a huge cost, and is a burden which can be readily outsourced. Once this is done the risks attached to distributing open source software are no greater than the risks attached to distributing other software. In both cases a copyright or patent claim can halt distribution, with resulting business consequences.

Verizon's problem is two-fold. Firstly, the distribution of software-containing goods wasn't accompanied by the minor steps required for adherence to the GPL2 license. Secondly, when contacted about this Verizon's legal staff deliberately chose a high-risk strategy. The size of the claim should be seen in the light of this willing acceptance of legal risk, and there was a time when Verizon could have settled for a few tens of thousands of dollars, which is a trivial amount when compared to settlements from breaches of other software licenses.

Posted Aug 8, 2008 1:44 UTC (Fri) by clugstj (subscriber, #4020) [Link]

Wow, this isn't even good quality FUD.

Posted Aug 8, 2008 2:03 UTC (Fri) by brouhaha (guest, #1698) [Link]

Most of the open source licenses are written in fairly clear English, and the meaning is
usually reasonably obvious.  Yes, there are some subtleties,  the litigation over them has
generally been situations where the defendants were very clearly not complying with the
license at all, not about a subtle point.  Sometimes the defendants come up with fairly wacky
theories about why the license is invalid or unenforceable, or try to convince the court that
the license means something other than what it says, but I don't think I've yet heard of any
such case where the court didn't actually interpret the license based on its relatively
obvious plain meaning.

If I were in charge of dealing with software licenses for a large corporation, I'd be far more
worried about compliance with the draconian provisions of license agreements for commercial
software than about open source licenses.  Yes, the corporation would need to honor its
obligations under open source licenses, but that isn't particularly difficult.

Disclaimer:  I do work for a large corporation that does use open source software in some of
its products, but I'm not in charge of dealing with software licenses.  I'm only speaking for
myself; my employer's views on this subject might be radically different than mine.

Posted Aug 8, 2008 7:33 UTC (Fri) by ami.ganguli (guest, #9613) [Link]

This is a truly bizarre article. I don't believe actually said this stuff.

The only time an Open Source license comes into play is when distributing the software. Since the vast majority of enterprises aren't in the software business, this is a non-issue.

For the handful of businesses that might use software in the products they sell, there are, of course, compliance issues. But then there would be compliance issues with any 3rd party software they chose to use, including closed-source stuff.

Posted Aug 8, 2008 7:40 UTC (Fri) by ekj (guest, #1524) [Link]

That's an amazing piece of circular logic;

The fact that people do NOT often get pulled into court over Free Software is an indication
that there is a HIGH risk that using Free Software will get you pulled into court.

That makes sense. Not.

There's a reason that companies settle. The reason isn't that things are unclear. The other
way around. Companies settle because it is crystal-clear to anyone with half a clue what the
result of going to court would be.

Oh, without a doubt there are grey areas. There always are. Nevertheless the overwhelming
majority of what companies actually do is CRYSTAL-clear. For example, for all companies that
do not themselves DEVELOP or DISTRIBUTE software (that is; most companies out there), the
following is the only part of the GPL they need to know:

<b>Activities other than copying, distribution and modification are not covered by this
License; they are outside its scope. The act of running the Program is not restricted,</b>

That seem particularily unclear to anyone ? 

Posted Aug 8, 2008 12:07 UTC (Fri) by MKesper (guest, #38539) [Link]

Posted Aug 8, 2008 15:19 UTC (Fri) by quinticent (guest, #32015) [Link]

I would like to point out that Stormy Patterson was severely misquoted by this reporter who
attended her seminar.  The article was pretty much a hack job.