Using open source software

Open source software is commonly used by software companies, often with great success, but also often with unforeseen adverse consequences. While many open source licenses enable you to utilize the open source software with few restrictions, other open source licenses can require that (A) you make available all of your proprietary code in source code form under that same open source license if you link or integrate that open source code improperly or (B) you agree not to sue certain parties under some or all of your patent rights, among other provisions. Key points to consider include:

  • What license terms apply? Do the license terms simply disclaim the responsibility of the licensor(s), or do the license terms impose restrictions on code which is used, integrated or distributed with the open source software? Read the FAQs accompanying the license, if available; often the FAQs are much clearer than the open source license agreement itself.
  • Consult with an expert. Make sure that you discuss the consequences of the open source software with your legal counsel or other appropriate expert. Some open source licenses are extremely ambiguous. Many companies have gotten into trouble by reviewing the legal terms themselves, without expert consultation.
  • Do the benefits outweigh the costs? Open source software can have significant benefits, often with low costs, ready access to source code and a broad developer community. However, depending on the open source license and how you use the code, the downsides of using open source software can be severe. Weigh these costs and benefits carefully each time you decide to use open source software.
  • Are there less problematic alternatives? Consider whether other sources of the relevant software functionality, or home-grown development, would be preferable in light of the restrictions of the open source license..
  • Potential customers and buyers and investors will want assurances that your use of open source software does not cause problems. Potential investors and future acquirers of your company, and some customers, will for detail on all open source software in your products and for assurances that open source is not problematic. Before using any open source software, make sure that you can answer those anticipated questions unambiguously and satisfactorily. Keep records of all open source software you use so that you are prepared to quickly answer those questions when they arise.
  • Establish a clear review process. Each company should have a process in place to ensure that the costs and benefits of using open source software are evaluated by the proper personnel before open source software is utilized.