Dec 10

Gartner released an interesting survey last month.  Surveying 300 enterprises, they found that 85% use open source within their organization today and the remaining 15% expect to use open source within the next 12 months.  That’s the good news.

The bad news?  69% of those same enterprises had no formal open source policy. This opens up huge liabilities.

As the author, Laurie Wurster, say, “Just because something is free, doesn’t mean it has no cost.”  “Companies must have a policy for procuring OSS, deciding which applications will be supported by OSS, and identifying the intellectual property risk or supportability risk associated with using OSS. Once a policy is in place, then there must be a governance process to enforce it.”

So there it is.  Actually, here it is, a link to the press release about the study from Gartner.

Open source is undeniably here to stay, within the most conservative enterprises.  But, all enterprises should adopt policies, about what open source is acceptable and what open source is not.

From Source Auditor’s viewpoint, the policies should outline the following at a minimum:

  • The licenses which contain obligations which the enterprise finds acceptable to fulfill
  • The license which contain obligations the enterprise does not find acceptable
  • The process for reviewing new candidate open source packages the enterprise wishes to adopt, both directly, or embedded inside commercial products
  • The process to review existing software products already in use in the enterprise (to decide if that software contains open source and if that open source contains licenses which are acceptable or not)

This, of course implies, the enterprise not only adopts and enforces a policy, but the enterprise creates a review board that can review new and existing software.  All existing and new software should be audited, an an inventory created of all embedded open source.

If all of this seems like a lot of effort for something that is “free”, that’s where we refer back to Gartner’s comment.  Open Source may be royalty free, but it certainly has costs.  The costs are no different, then the costs of insuring that any commercial royalty bearing software that you use, is in compliance with the license that came with it.  As recent court cases have shown, the license obligations in open source are legally enforceable, and violating them is the same as copyright infringement.

Nov 13

There was a legal judgment last August which is pretty significant in terms of upholding the rights of open source copyright and license holders.

The Court of Appeals for the Federal Circuit Court, which is considered the most important intellectual property appeals court in the US, upheld a open source copyright license.

In non-technical terms, the Court has held that open source licenses have the right to set conditions on the use of copyrighted work. So, even if an open source license does not collect royalty fees, it is a copyright license and the conditions need to be honored.  If you violate the condition, the license disappears, and you are a copyright infringer.  In other words, a open source license is just like a commercial license in that if you use the open source, you have to honor the conditions of the license.

Here is the opinion:

This is very significant as some previously had the theory that because an open source license did not collect monetary fees, there was no real “contract” and the conditions in the license were not really enforceable.

So there you have it.  Many engineers in commercial software companies download open source and incorporate it into their commercial software, without honoring the license obligations.  This case, clearly establishes that the license obligations must be honored, or it is a case of copyright infringement which can lead to losing battles in court.

All of this reinforces the basic conclusion, commercial software developers should set a open source governance policy.  They should decide which open source licenses have conditions which are acceptable to the organization and can be fulfilled.  Any licenses which have conditions which are not acceptable should not be approved.

The organization should also scan for open source in the current source code base, using either manual methods or a professional audit firm like Source Auditor.  The organization should remove any open source which is associated with licenses which are not approved and not acceptable to the organization.  For many commercial organizations, this is usually open source associated with the GPL license, which accounts for over 50% of the projects in open source repositories like Sourceforge.

Of course, many GPL licensed open source projects have similar project counterparts that are licensed with friendlier licenses like Public Domain, MIT, BSD, CPL, or Apache.

The policy should also be enforced going forward, ie, the organization should review new proposed additions of open source to the commercial code base, and should decide if the proposed addition license is acceptable before approving the addition.