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
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
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
Question: What is one key legal risk with using open source
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
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
Question: Any last words for organizations to
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.
Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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