Surely that can't be legal, can it?

02.03.2006
Whatever the technological and economic advantages of open source software, there is a potential legal risk from software that doesn't offer the warranty protection of commercial products. Open source software might violate third-party intellectual property rights if a programmer has added infringing code to your open source application or operating system without your knowledge, exposing your business to potential injunctions and damages claims.

Global law firm Simpson Grierson advises that, as open source code is written by a number of programmers, OS software is usually provided on an 'as is' basis, without warranties. And as has been reported in the Economist magazine and elsewhere, the open source movement's general public licence (GPL) has never been legally enforced.

Genevieve Gill is the principal of a New Zealand commercial law practice specializing in information technology law and commercial contract negotiation. Most of the risks surrounding open source relate to licensing, and Gill's open source-related work largely revolves around examining those licences and explaining the risks.

'Generally speaking, the clients I've spoken with use open source in a fairly application-specific way. They're not running their entire business on open source software. They tend to use open source in particular areas, and not in mission-critical parts of their business operations.'

The variety of licences is bewildering to those new to open source. There are currently 54 different licences approved by the Open Source Initiative (OSI) for example. Each incorporates different degrees of restrictions regarding copyright notices and the like, but they all grant end-users certain rights. Licences for proprietary software rarely grant the end-user anything other than the right to use the software.

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