It's not unusual these days for our not-for-profit clients to show us a software licence agreement that incorporates the use of open source software.  This is software in human readable format that is available for any person to copy, modify and distribute without having to pay for its use and is generally subject to certain terms and conditions. 

Before accepting the licence, organizations should understand the legal risks with the use of such software.  I recently asked my colleague Eric Boehm some questions about this topic.  After all, this summer, he reminded the audience at IT.CAN's 2013 Information Technology Law Spring Forum of some of the key risks with using open source software.

Question: What are some of the misconceptions with open source software?

Eric: A myth is that one can use it without any restrictions at all. Open source is not automatically in the public domain.  It is still subject to copyright protection and the creator or licensor maintains ownership in the software. Organizations need to review the terms that accompany the software, and use it in accordance with such terms.  

Question:  Is there a typical open source software licence?

Eric: No.  There are too many types of licences to count.  You basically have to read the terms of the applicable licence, some of which, unfortunately, are poorly written.

Question: What is one key legal risk with using open source software?

Eric: Probably the potential "viral" nature seen in some licences. If an organization puts open source software into its own software, and wants to distribute that software, some open source licenses require that the combined software be entirely open source. The result is that including even a small bit of open source can "infect" the whole of the software and make it open source, which requires the all of the code to be made available. This may not be the intent; usually we want to keep the code secret if we want to commercialize it.

Question: What are some of the other legal risks?

Eric: There are quite a few. Unlike commercial software, open source software is usually provided without typical protections, such as warranties, indemnities and support obligations. Licensors disclaim all responsibility for the software.  Also, an organization improperly using open source software could face a damages claim, an injunction stopping use of the software, public embarrassment and having it disclose its own sensitive code.

Question: Knowing all of this, would you still ever recommend using open source software? 

Eric: Open source software can be very helpful, particularly in the cost-sensitive not-for-profit sector. It is often industry-standard and well-programmed, and easily customizable. It can also save an enormous amount of time in the development process. You just need to make sure you use it properly. And generally speaking, an organization is free to use open source software as it wishes for its internal use. But as soon you want to distribute such software, you need to be extra careful.

Question: Any last words for organizations to consider?

Eric:  It will be important for organizations to determine how such software will be used, integrated and distributed, and to see whether the organization's needs are compatible with the licence.  Keep an eye open for restrictions on using or distributing the code, as well as authorship or other marking requirements.

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