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The notion of license enforcement of open source software seems counter to the principles of the open source movement. Yet, not only are license noncompliance claims increasing, it's just the tip of the iceberg, says Heather Meeker, a leading intellectual property transactions lawyer at O’Melveny & Myers, and speaker at the upcoming Compliance Manager Summit in San Francisco, March 12-13.
Why will the software industry experience a surge in open source license compliance issues in the next few years?
There are several factors, says Meeker. First there's more open source development and more companies using open source. A recent Gartner study claimed 50 percent of technology companies use open source as a part of their IT strategy.
Next, both the developers and those engaged in enforcement have gotten more sophisticated and tougher about open source licenses. "The people enforcing the licenses are paying a lot more attention than they used to," says Meeker. "There used to be relatively little enforcement of the open source licenses, but now, both formal and informal claims are increasing.”
Open source enforcement typically takes the form of an intellectual property claim, according to Meeker. "And while there can be damages associated with that, they are not usually very high. The bigger costs have to do with business disruption." Targets of an open source license violation claim may have to quickly reengineer their product and issue a compliant version, which can be expensive, and delays product development. “No one wants to spend time fixing license problems. They want to push out new products.”
Targets of most of the open source compliance claims are consumer electronic manufacturers because they make high-profile examples of the cost of misusing open source software. "Open source license enforcement groups will target consumer products to make more of a public impact," says Meeker. "But they also target enterprise software providers."
The main effect software publishers see from the open source license compliance push is from their clients. There's a new demand by customers for proof that the software they're buying is open source compliant. "Customers have gotten a lot more knowledgeable about open source licenses," says Meeker. "They are demanding squeaky clean compliance, lists of disclosures, reps and warranties on open source compliance. And if you can’t show that you have compliance processes in place and provide them the information they ask for about open source, customers may just not buy your product.”
This is an interesting twist on compliance—the consumer demanding vendor license compliance—because the risks are real for software customers. "Liability for noncompliance can occur at all levels of the distribution chain. Customers know they can’t shift the blame to the supplier," Meeker points out. "The enforcers can go after everybody in the whole chain of distribution.
The open source license enforcement bodies are better funded, more active and more determined than ever to defend the principles of open source software, and their actions getting noticed. As Meeker puts it: "It’s just going to keep escalating.”
Join us at the 2015 Compliance Manager Summit in San Francisco, March 12-13, to hear Heather Meeker and others discuss the new challenges and opportunities in software license compliance.
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