Open Source in the Real World:
Beyond the Rhetoric
Maureen Dorney
Partner, DLA Piper
Kat McCabe
Board of Advisors, Black Duck Software, Inc.
Gemma Dreher
Introduction
Widespread availability and use of open source
software makes it important for corporate counsel
to understand the issues and best practices
Focus today on management of open source in:
Development
Procurement
Development
Internal policies and procedures for internal use,
external use and contributions mitigate risks
Options for managing use of open source
Committee (company vs. business unit)
Pre-approval/disapproval of certain licenses
Individual
Educate developers and others on policies,
procedures and risks
Development
Require review/approval before check in
Applicable license and source (e.g., website)
Confirm that license meets internal policies
Technical/legal personnel perform final
code review before distribution
Review code branches and developer comments
Consider audit tools to scan and identify open
source
Development
Document use of source code
Location
Version
Applicable License
Obligations
Procurement
Commercial Open Source Procurement Eco-System
Third Party Developers (includes offshore development)
Enterprise Software Vendors (both upstream and downstream) ASP or SAS Providers (use but no distribution)
OEM Relationships (many companies have inconsistent policies) VAR and ISV Models (present similar issues as those found in OEM relationships)
Often Different Divisions of Technology Companies
Deploy Conflicting Policies
Procurement
Formulation of an Open Source Procurement Strategy
An Open Source Procurement Strategy Should Parallel and be
Compatible with Internal Development and Downstream Licensing Strategies:
Your Channel Requirements Software Architecture
Warranties and Indemnities
Conformance of Licenses and Proprietary Rights Notices Implementation of “Standard” Software Solutions
Consider Dual Source Options Where Appropriate
The Same Open Source Policy and Approval Structure for Internal Development should Extend to Procurement
Procurement Partners Can Have Very Different Open Source Strategies
Sample Procurement Clauses
Prohibited Uses of the Source Code. Company will not make the Source Code of the Software available on a non-confidential basis. Company shall not combine or distribute the Source Code with any Publicly Available Software. As used in this Agreement, “Publicly Available Software” means each of: (i)any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software
(e.g., Linux) or similar licensing or distribution models; and (ii) any software
that requires as a condition of use, modification and/or distribution of such software that other software distributed with such software (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no charge. Publicly Available Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the
Licensee Community Source License (SCSL), and (vi) the Licensee Industry Standards License (SISL).
Sample Procurement Clauses
Licensor shall provide to Licensee in Exhibit A below: (a) a list of all Open Source Technology (including, but not limited to code licensed under the GPL or LGPL) incorporated into or combined with the
Software, (b) a description of how the Open Source Technology is incorporated with or into, or interacts with, or will interact with, the Software or any technology that may be incorporated with the
Software and/or Licensee products and (c) a copy of the license governing the use and distribution of the Open Source Technology. Licensor agrees to fully cooperate with Licensee to insure compliance by both parties with the terms of any license governing the use of any Open Source Technology in any Software delivered by Licensor to Licensee. Licensor shall comply with a request from Licensee to grant rights and immunities under Licensor’s Intellectual Property rights to third parties as required to insure compliance with the terms of any license governing the use of any Open Source Technology in any Software delivered by Licensor to Licensee.
Sample Procurement Clauses
Licensor grants to Licensee a non-exclusive, perpetual, irrevocable and worldwide license under Licensor’s Intellectual Property Rights to, in any fashion Licensee may choose (including, but not limited to,
community source and/or open source licensing, except any BSD license (i) reproduce, prepare Derivative Matter of, compile, publicly perform, publicly display, demonstrate, market, disclose and distribute the Software and modifications thereof in source code or object code form on any media or via any electronic or other method now known or later discovered; (ii) make, have made, use, sell, offer to sell, import and otherwise exploit the Software and modifications thereof in source code or object code form in any manner and on any media or via any electronic or other method now known or later discovered; and (iii) sublicense the foregoing rights to third parties through multiple tiers of sublicensees or other licensing mechanisms at Licensee’s option.
