The Local Government Computer Services Board outlined in February 2011 its intentions to make the move to open source software in the near future. In this article, we review the case for and against opting for open source software.
Computer software is a key part of almost all modern businesses, whether that is a corner shop with one electronic cash register and a back office PC, or a multinational corporation which relies on a computer network for the majority of its business functions. One common theme exists for all businesses. They all use software, that software requires maintenance and upgrading, and that means cost. For that reason, businesses throughout Ireland are taking a closer look at open source software and what it can add to their business.
Software licences enable software developers to distribute their product whilst at the same retaining ownership of the Intellectual Property Rights in the software, and controlling the use to which their software can ultimately be put. Traditional software licence arrangements are often described as ‘closed’ licences for the foregoing reasons. The typical conditions contained in a closed licence include non transferability and a prohibition on sublicensing. They will also include restrictions on use, permitted users and locations of use, as well as the exclusion of a right to access new releases of the software. Further, there is a potential for bespoke software to be licensed to a client on an exclusive basis.
Depending on the value of the transaction, and the attendant risks involved, traditional software licences can be heavily negotiated and complex legal documents. Licences can run to tens of pages in length, and often incorporate ancillary agreements relating to issues such as support and maintenance of the system.
An alternative to the traditional software licence model is the open source software licence (OSS), which is an idea born out of the Free Software Foundation’s campaign to make software available to all for free. Open source licences for systems such as Red Hat’s Linux operating system have been growing in popularity in both the private and public sector in Ireland for the last number of years.
According to Open Source Initiative, (www.opensource.org) an oversight organisation for the open source movement, examples of the criteria that must be complied with in order for a licence to be characterised as open source include;
- The licence may not restrict any party from selling or giving away the software as a component or an aggregate software distribution containing several programs from several sources.
- The program must include source code, and must allow distribution in source code as well as compiled form. If source code is not provided, then there must be a well publicised and inexpensive means of obtaining it.
- The licence must allow modifications and derived works, and must allow them to be distributed under the same terms as the licence of the original software.
- The licence must explicitly permit distribution of software built from modified source code. The licence may require derived works to carry a different name or version number from the original software.
- The licence must not restrict anyone from making use of the program in a specific field of endeavour, or in relation to a particular computer program.
- The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional licence by those parties.
Why Opt for Open Source?
Open source software has many advantages. The initial outlay costs of open source software are significantly less than those for traditional software as open source software is often, but not always, distributed for free.
Having access to source code means that your company’s own IT staff can more easily debug and integrate the software into your existing computer system.
Finally, the freedom to use, modify and redistribute open source programs is a great advantage over the more limited traditional licence. This enables the program to be used by a number of people within the company, and means that the program can be modified in order to achieve greater inter-operability with your existing system.
What are the Legal Risks?
Perhaps the most obvious risk in using open source software is your potential liability for intellectual property infringement. As open source software is continually modified and added to by third parties, there is a risk that one of these parties may introduce code that is copied from other protected software programs. The risks in open source licences are mainly borne by the licensee, as an open source contract does not contain the same heavily negotiated intellectual property warranties and indemnities found in a traditional or closed licence agreement.
In addition, open source licences often lack the typical representations as to quality and fitness for purpose contained in traditional software licences. This means that your business may have nowhere to turn for either immediate support or subsequent compensation if the software contains fatal errors, viruses, or is incompatible with your existing computer system.
Finally, companies should note that it is often a condition of open source software licences that you must make your software available to other users, including any modifications undertaken by your own IT experts. This means that open source is often unsuitable for use by a commercial software business who wishes to profit from software development.
If your business considers moving to open source, it is important that legal advice is sought on the commercial exploitation limits as well as the Intellectual Property and other risks that you may be adopting in entering into the licence contract. The possibility of obtaining specific assurances and indemnities from the licensor before the contract is completed should also be discussed with your legal advisor.
Contributed by Carol Plunkett
