How not to get sued by open source coders

A recent ruling by the U.S. Federal Appeals Court, stipulating that open source licenses are subject to copyright laws, will mean that businesses will have to exercise added due diligence when integrating open source code in the products they develop, according to legal experts.

The ruling stems from a claim of copyright infringement by an open source developer whose code was distributed through the open source Artistic License, and claims that those license requirements were not met by a company that incorporated that code into its product.

The court subsequently ruled that copyright holders “who engage in open-source licensing have the right to control the modification and distribution of copyrighted material.”

But according to Lisa Abe, senior partner with Toronto-based law firm Fasken Martineau DuMoulin LLP, “many organizations unfortunately… haven’t done anything to really teach their employees or subcontractors around the issues and risks of open source and how to manage it internally.” She added that businesses that have implemented corporate policies around the use of open source software tend to be the large and more sophisticated organizations.

Specifically, those policies should include a list of open source technologies in-house developers can use, a procedure for obtaining appropriate approvals for usage, and most importantly, a process for tracking the code. The latter – tracking how the code is used and modified – is often the root of the issue, said Abe, when a business wants to start selling its products.

But at the core of the court ruling, is the fact that the business had infringement on copyright – not just in breach of the license contract – by not following conditions imposed by the license agreement, like crediting the author, reference to copied files, a description of modifications to the original source, and where to find the original source.

David Fewer, staff counsel with the Ottawa-based Canadian Internet Policy and Public Interest Clinic (CIPPIC), said the decision not only “gives some teeth” to the nature of the requirements of open source licenses, but it also grants incentive to create and distribute open source software. “This is very much a pro-creativity and pro-innovation decision,” he said, “And that’s nice to see.”

But the court decision is not just relevant to open source software, but to all open licenses, said Fewer. Movie makers, photographers and artists, for instance, who are using open licenses like the Creative Commons that rely on similar conditions of use, “now have the confidence that [they] have the backing of copyright law, not just the backing of contract law behind those conditions.”

While Fewer agreed with Abe that the ruling places more focus on due diligence around commercial distribution, he did add that attention to license conditions is an exercise that every company should already be engaging in. “We’re not creating new burdens or new obligations. Those obligations were always there,” said Fewer.

And although the ruling occurred in the U.S., Fewer thinks it will still impact Canadians because it was “not dependent on narrow American statutes… this is a statement about what’s the nature of the obligation.”

Abe agreed. Canadian courts will look to south of the border for guidance on issues not addressed specifically in Canadian law, she said, and Canadian businesses incorporating open source technologies stemming from the U.S. will be subject to U.S. copyright laws as well.

In the end, the court ruling doesn’t change the world for software, said Fewer, but it does make due diligence around commercial distribution of software “a little more important because copyright carries with it some pretty nasty remedies.”

“And those remedies are getting more and more punitive.”

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