The use and licensing of open source software (OSS) continues to grow and it is not going away anytime soon. At a recent Open Source Conference in San Francisco, 62 percent of respondents to a survey indicated that OSS represented more than half their software deployment. Businesses have historically cited lower costs as the driving reason for relying on OSS, but easy access to source code and a community of talented developers, as well as freedom from vendor lock-in, also are major factors.
Regardless of the reasons behind this trend, it is important for in-house counsel to understand how to properly license OSS so that the software and licensing models selected provide their companies with the necessary use and distribution rights while also protecting the companies’ intellectual property assets.
When negotiating a technology services agreement involving the license and use of OSS, contract terms addressing IP rights, warranties and indemnities should be kept top of mind. For example, the terms of such agreements must clearly reflect the extent to which a company, anOSSlicensor and third-party providers have any rights to the software licensed under an open source license or developed and redistributed using suchOSS. Such agreements also should identify the party owning the IP rights to the originally developed software and derivative works of company or third-party materials.