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INDUSTRY WATCH:
I.M. Developer, Esq.
By David Rubinstein
November 15, 2004 — Near the beginning—of open-source software, that is—licenses for using code were written in a clean, concise way so that developers wishing to use the available offerings could understand them. That certainly made sense, as developers first and foremost are the ones making the determination to use the code in the first place.
As of late, though, with more and more large companies poaching in the open-source pond and looking to turn a profit off what’s there, more stringent use requirements are coming into play. In fact, the Apache Software Foundation earlier this year released version 2.0 of its license to afford the group and third-party users certain protections against patent infringement. There was, though, a gray area regarding redress of an inadvertent violation that Apache license revision lead Roy T. Fielding admitted was open to court challenge and interpretation.
Where you have more restrictions, and conditions under which certain code can be used getting stricter, you’re sure to find one more thing: lawyers. In fact, Black Duck Software Inc. last month introduced a version of its protexIP intellectual property management software specifically for corporate lawyers.
Now, there are some people who might smirk and say getting lawyers involved in software development is the equivalent of my submitting this column to an editor who speaks only Ojibwe. However, with an estimated 200-plus open-source licenses currently in use, punctuated by the fear-uncertainty-doubt spread by SCO’s lawsuits, getting the legal team involved is a good idea.
Think of legal review of code in the same way your family views insurance: You balk at paying the premiums, but you do because it’s cheaper than a catastrophic loss would be. And as enterprise-class open-source software becomes more attractive to enterprise customers, you can bet the number of lawyers practicing software license review also will rise.
“It’s much more common than it was five years ago,” said Ira Heffan, a senior associate in the patent and intellectual property group at law firm Testa Hurwitz & Thibeault LLC in Boston. The firm was one of the first to help companies deal with the issues associated with the use of open-source software. “As open source becomes more prevalent, as the code is out there that people actually want to use in their software, that’s when the traditional way of ensuring the licenses are OK, [which is to] look at the agreement during the purchasing stage, [is] out the window with open source.”
The biggest concern for software companies that incorporate open-source code into their products, Heffan said, is having to deal with changes to the product in the field. If intellectual property infringement is found at that time, the software has to go back through all the life-cycle steps before it can be re-released—replanned, rewritten and retested. “And that’s not two days,” Heffan said, noting the cost of this exercise can be quite high.
David J. Byer, a partner in Testa Hurwitz’s patent and IP group, said there are a number of entry points for lawyers in this field. Investors looking at software companies, the companies creating software themselves, and companies looking to take over other software companies all need assurances that they are not stepping into an IP minefield. “This is on the table frequently,” he said. People want to know that when they are taking in your software, “they’re not taking in problems with it. That could turn them away from you,” in terms of creating a business relationship, or even in terms of a possible merger or acquisition.
The problem has the potential of being compounded by the new open-source business model, which is to give away the software but charge for collateral services. “This is a flourishing ecosystem,” Byer said.
Another new market that could flourish is what Byer called forensic software, similar to Black Duck’s tools. As open-source software moves toward ubiquity, there will be a need to automate the way licenses are tracked through an organization to ensure IP infringement does not occur. “Certainly, the sensitivity and consciousness is raised,” he said.
“Open source just makes so much sense,” said Heffan. “The shared software gives real code reuse, in a way where the transaction cost is low. The cost of getting the software is low, but costs shift. But it’s still cheaper than licensing from a commercial vendor.”
That might be true. But as money gets diverted from development to legal fees, and the fear of being sued has a chilling effect on innovation, the cost of open source on the software industry might be far greater than any costs of licensing commercial software.
Ultimately, as companies use components and code they know are safe, the open-source community will dissolve into a series of smaller, gated communities, with manned security booths at the entrance screening anyone trying to come in.
David Rubinstein is editor of SD Times.
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