Not so long ago Microsoft’s Steve Ballmer alleged that Linux was infringing on some 228 patents. But open-source software is, from a legal standpoint, no more risky to deploy than proprietary products.
If you’ve heard lately (via Steve Ballmer at Microsoft) that you put your company at greater risk of being sued because you are using open source software (OSS), don’t believe it.
Actually, there is, depending who you talk to, either an equal or somewhat reduced risk of liability from OSS than proprietary software. This is because OSS code is peer-reviewed by a group of proud developers who often have the ability to recognize other developers’ handiwork.
Infringement on other developers’ work is often caught by this process and the developer responsible for passing off other people’s work as their own shunned by the open source community at large, said Diane Peters, general counsel for the Open Source Development Labs.
”I think this is one area where there is actually less risk with open source, and the reason has to do with the methodology,” she said. ”Developers are notorious for speaking their minds about other people’s code.”
Also, most software development is covered by copyright law, not patent law; although the functionality that software provides can be patented, the code cannot. This means that if two developers (either open- or closed-source) simultaneously come up with the same code to solve a particular problem, but have not seen each other’s work, there is no infringement and therefore no grounds for legal proceedings or damage claims.
This is an important distinction because many end users believe that because the code is open it is also open to abuse. This is not the case, since most open-source licenses (there are more than 50 of them) allow for source-code modification, and the nature of the open-source community ensures that blatant ripoffs will probably be spotted.
Also, if you (the end user) are abiding by the terms of one of these open-source licenses, then there is no danger of either copyright or patent infringement, said Jim Gatto, an intellectual-property partner in the Northern Virginia office of Pillsbury Winthrop Shaw Pittman, LLP.
”Anyone who is downloading the software and using it and abiding by the open-source license, they don’t have to worry about patent infringement,” Gatto said. ”But if someone outside the (open-source) chain wants to develop their own product that has similar features, but they didn’t get the software through my chain (the open-source license chain), then I can sue them for patent infringement.”
But for end users, this can happen just as easily with proprietary code as open source, so the risk is equal no matter whose solutions you are using, said Paul Kirby, an analyst with AMR Research.
The reality, though, is that end users almost never get sued. Take the SCO v. IBM case: Everyone interviewed for this article agrees the case is going nowhere, has very little merit and has alienated SCO from the rest of the industry. The net benefit to SCO? Basically nothing.