Law Firm Twisting Open Source License Ruling To Mislead About Open Source Software

from the that's-not-what-it-says-at-all dept

When CAFC ruled last summer about the legality of open source licenses and their connection to copyright in the Jacobsen case, we were a little worried that the ruling appeared to conflict with some other copyright rulings, in a way that could eventually cause problems. However, on the whole, it was a good ruling, putting weight behind the core concept behind open source/Creative Commons-style license, which mostly rely on copyright to backstop what those licenses require. However, a law firm has been running around trying to push the idea that the ruling means using any open source software increases your copyright infringement liability. Of course, that's only true if you don't abide by the terms of the license. In other words, the risks are no different than if you're using proprietary code: if you obey the terms of the license, there's no problem. If you don't, there is. All the ruling really stated was that there could be greater damages to those who don't abide by the license. So, really, the law firm's advice seems to be directed entirely to firms who plan to not live up to the requirements of an open source license. That's hardly an increased liability for those who comply.
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Filed Under: copyright, jacobsen, liability, licenses, open source

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  1. identicon
    Chris Maresca, 18 Apr 2009 @ 12:44am

    To be fair...

    ... they are really addressing something which most corporations are hugely (and justly) worried about, which is generically termed 'underwater liability'. It was first a problem with shareware, where someone downloads something that makes the corporation liable for licensing fees (which could be a lot if it becomes widespread).

    But the same sort of thing could happen with any open source, since some ways of deploying open source can obligate the corporation in unexpected (from a corporate standpoint) and potentially expensive ways

    It's a risky enough thing that we have several clients who will not allow open source to be implemented at all, but it's also a problem in less controlled environments where good policies have not be implemented. We've also had several clients who have gone through extensive remediation exercises to make that all open source was properly implemented and obligations were fulfilled.

    None of this is particularly anti-open source (and I would be the last one to say this...), but it just points to the fact that ANY company that has any software development needs to have policies around open source usage.

    However, if anyone is seriously worried about this, I would note that the court was fully aware that those asserting infringement are more interested in resolution than any monetary compensation. With a particularly intransigent party that will not provide a resolution, monetary damages might be awarded by courts, but that is not the actual goal of the lawsuit.

    Note that I am not a lawyer, but I have worked closely on these issues for the past 8 years (with a lot of lawyers...).


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