Open Source Software: Your Company's Legal Risks

Open source software is a convenient way for developers to build solutions. However, if your company plans to distribute that software, a recent ruling makes it clear that failing to follow the open source license could put you in jeopardy of a copyright claim, according to Michael P. Bennett and Katherine K. Ivers of the Wildman Harrold law firm.

The Court of Appeals for the Federal Circuit (CAFC) issued a decision in the much-watched case Jacobsen v. Katzer, No. 2008-1001 (Fed. Cir. Aug. 13, 2008), which turned on whether violating an open source licensing agreement should be considered copyright infringement.

It is important for companies to be aware of the implications of this decision and to respond accordingly; this applies to all companies that use open source software -- even those who think they don't. The temptation to incorporate open source software into a company's products is great, because open source software is readily available via download and is free of charge.

Developers on tight budgets and time lines often see open source as a quick fix, and it is -- but there's a catch. Though free of charge, open source software is not free of terms and conditions, and virtually all open source software is subject to a license agreement. The decision in Jacobsen strengthens the ability of open source programmers to enforce these license agreements, and should cause companies who use or distribute open source in their own software to carefully review their policies.

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