I’m giving a presentation next week on legal issues businesses must consider when jumping into the world of Open Source software. For the handout materials, I’ve written a new article I’m now calling, until something snappier comes to mind, “Best Legal Practices for Open Source Software: Ten Tips For Managing Legal Risks for Businesses Using Open Source Software.”
My approach is my usual one – avoid the relentless nay-saying and theorizing that many lawyers are known for and try to establish a basis for making informed decisions that reasonably manage legal risks in the context of sound business decisions. Don’t get me wrong, debating philosophy and theory has its place, but I’m the more practical kind.
I haven’t decided yet how and where I’ll publish this article (inquiries welcomed), but I thought I’d excerpt some of it here as a bit of a teaser. The result has a little bit of a Zen feel in comparison to the full article. The full article will be available to attendees of my presentation.
The following ten tips are intended to help you deal with some of the big legal and practical issues. They are, of course, not intended to cover all issues, but they will give you a good checklist to help guide your discussion and make good decisions.
1. Understand the Different Approaches That the Open Source Licenses Take. It is important not to think about the Open Source licenses in monolithic terms.
2. Pay Special Attention to the General Public License. If you choose only one thing to have policies about and require special review of, it should be the General Public License.
3. Remember the Source Code. In simplest terms, the biggest difference between Open Source software and commercial software relates to the source code of the program.
4. Make Reasonable Comparisons with Commercial Software. It’s easy to find frantic concerns about Open Source software over reasons that apply just as easily to commercial software.
5. Think in Terms of Choosing, Rather Than Negotiating, Open Source Licenses. As frustrating as it can be to lawyers, the best approach is to evaluate the available choices and weigh the consequences, not to think in terms of ways to tinker with or improve the terms of agreements.
6. Do Not Confuse Open Source with Public Domain. Make no mistake – Open Source software is real intellectual property that is governed by a real license that puts limits on your rights and imposes certain obligations.
7. Inventory and Assess What You May Already Be Using. It has become very important for both business decision-makers and lawyers to have a good understanding of the technology issues, including what the software does and the alternatives available.
8. Open Source Use Requires Open Source Training. Knowing the right questions to ask is half the battle, but IT staff, contract negotiators and legal personnel, including outside lawyers, must be trained on the legal issues involved with Open Source as well as on the policies and procedures that you decide to take.
9. Reasonable Policies and Procedures Are Not Optional. Many business people believe that if you give a lawyer a look at a business process and he or she will find the need for a written policy. However, a reasonable, evolving set of policies and procedures crafted to fit the business needs and corporate risk comfort level of your company will invariably be the best approach to take.
10. Treat Open Source Policy as a Team Game. If the lawyer only looks at the legal issues and the CIO looks only at the IT issues, you increase the likelihood of finger-pointing when an unexpected, but quite predictable, bad result occurs.
Don’t be an Open Source ostrich. Addressing this area from a reasonable knowledge base, with your eyes wide open, only makes good sense in today’s business environment. These ten tips will help you get your Open Source house in order and pave the way for effective and wise use of Open Source software with your legal risks kept within your level of comfort.