31 Dec 2011

Software Law and Open Source Liability

Software licensing with open source software creates some interesting legal questions for software law. These concerns are something any Silicon Valley company looking to release or use any open or quasi-open software should assess and integrate into its strategy. There are issues with using the software and understanding exactly what its clauses mean, problems with issuing this type of software without the right protections against liability, and concerns about ensuring that open source software doesn’t contain any secretly malicious code – and how to legally approach that problem if it comes up.

Software law relating to intellectual property and theft, liability, and risk adapted to deal with basic software issues years ago. Whether software is used through purchase or some sort of temporary license, the basic regulations for products and services that have applied for all other businesses continue to change based on complex software interactions, but they remain fundamentally sound and relatively straightforward. Liability and ownership are explicitly defined. But issues get murkier and more complex when it comes to open source software law. There are concrete distribution terms set by the oversight organization Opensource.org, and they establish restrictions on activity and use.

One of the biggest risks from this type of software is Intellectual Property infringement. Many major open source projects involve the collaboration of many people, any one of whom could deliberately or accidently introduce a piece of code lifted from a copyrighted product. This puts the company or organization backing the software at risk, and can even cause problems for companies using the software depending on how they acquired it and what they did with the software. This risk also represents one of the more general problems with open source software. It is more difficult to be confident about the software and its integrity. Software lawyers can help assess the terms of this kind of software, prepare documents to effectively protect clients from these risks, and instruct clients about where their liability lies in these types of situations.

The other prominent risk is that the software will cause some harm. Generally, licensees are protected from this risk by clauses in the software licensing contract. But with open source IP there are fewer methods to hold the creators liable. Problems could be as simple as a mistake in the software’s code that leads to a less-than-accurate result which leads the user to be less efficient than it could have been. Or they can be larger, and result in a security breach or significant data loss. There are no strong warrantees in open source licenses, so legal remedies are few. An expert software law attorney can assess the options a client would have in this event, to help evaluate how worthwhile the risk is.

Software law is generally very effective in protecting both sides from negligence and dishonesty. However, in the case of open source software, companies need to exercise much more caution in everything they do.

Software Law for Open Source Licensing and Liability Is a Unique Field of Law. Invest in Understanding It Before Using It. Learn More at http://nefflaw.com/.


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