Chicago Software Licensing Lawyer & Attorney : Sam Conforti Law Firm : Master Service Agreements, Negotiations, Outsourcing : Cook County, Illinois

If my previous post on 12/22/07 Open Source Violation Could Get You Sued did not spark your curiosity, well then maybe this one will make you sit up and take notice. McAffee, the company use to warning their customers about potential problems in their customer’s own software, now has issued a cautionary note to its investors about possible risks (that means litigation) as a result of Open Source software in its own products. Jason Haislmeir deftly explains this issue in his article McAffee Issues Risk Factor Over Open Source Licenses.  

It appears that the risk stems from the 2^nd version of the General Public License (“GPL”) as yet untested by the courts. Since the GPL imposes an obligation on its users of Open Source to make such software available at no additional charge and also make available software that relates or interacts with the Open Source software, it is easy to see that McAffee’s concern is genuine.   Haislmeir goes on to describe how others such as Tivo and Microsoft have encountered GPL license issues and have issued similar warnings to their investors.         

Until these issues on use of Open Source software and what obligations attach to the users of related products containing such Open Source software are settled, it would be a very prudent approach for companies to ramp up their compliance programs. At the very least this could help identify a possible violation and allow the company an opportunity to formulate a response or make any necessary adjustments to avoid the aforementioned risks.

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There’s no such thing as a free lunch.  Read Sean Michael Kerner’s article about a possible infringement of Busybox’s GPL license. In it he details how four companies (Monsoon Multimedia, High Gain Antennas, Xterasys, and Verizon) have been sued and two of the four have already settled.  Kerner points out that some companies might not even know they are in violation, or worse yet, not take such compliance issues seriously.  The next logical step is to develop tools that can identify these license violations.  Kerner’s article identifies three such vendors, OpenLogic, Black Duck, and Palamida. With the apparent enforcement actions of these types of alleged copyright violations, there should be a boon to law firms' Open Source practice.

As Jason Haislmaier, an attorney with Holme Roberts and Owen LLP representing High-Gain Antennas, states:

"While there are a number of companies that have implemented very robust open source compliance programs, many more have not.  This means not only that these companies are at increased risk of an open source violation, but that the recipients of any of their products containing open source are also at increased risk, many times unknowingly. This is the case in more than one of the BusyBox cases.  If the BusyBox lawsuits have demonstrated one thing it is that remaining ignorant of existing open source software usage and potential open source software license violations can be expensive."

I remember receiving a call in my office from a client a while ago asking me to look at a GNU license that he was given and to let him know if it was OK to sign it.  After a cursory first read through, I was skeptical.  Why would anyone give me free software?  And if I modify it, I have to make those modifications available to others?  What happens to my competitive advantage?  The businessman in me quickly transformed from a skeptic to a cynic.  After regaining my composure and doing a little research, I came to understand the motive.  The idea is to encourage development and evolution of the code and not the profit that could be garnered.  For a good annotated definition of Open Source see the Open Source Initiative web site.  To learn more about the GNU General Public License (GPL) and the Free Software Foundation (FSF) visit the GNU website.

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