IP: Open source software is licensed—it’s not “free”

Knowledge of applicable OSS licenses should be an important part of an organization’s intellectual property policy.

Open source software (OSS) has become ubiquitous, but it is still not free.

There are examples of open source software on computing devices all around us. The Linux operating system runs business computers. Many people use Mozilla’s Firefox browser to access the Internet. Google’s Android operating system runs on smartphones and other computing devices.

Those who violate OSS license obligations may be pursued for copyright infringement, patent infringement and unfair competition. The developers’ copyrights to the open source software are fully enforceable. Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008). Potential remedies include loss of the open source license, monetary damages, injunction, seizure of products incorporating the infringing software and, possibly, criminal liability.

To help manage the risks involved in using open source software, a three-step approach is recommended:


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Eric Lobenfeld

Eric Lobenfeld is the co-head of the U.S. Intellectual Property Practice of Hogan Lovells. He has more than 35 years of experience litigating cases involving...

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