Open Source Compliance
The use of open source software is now widely found in the software industry. This affects conventional software developers and apps providers, and equally the manufacturers of embedded systems. The comprehensive granting of rights of use for programs which can be accessed without a licence fee, such as Linux, Apache and Eclipse, does not mean, however, that the licensee is not required to comply with any obligations. Particularly when marketing own products with open source components, licensing obligations need to be taken into consideration, since breaching them is regularly associated with a breach of copyright. We work on your behalf both in asserting open source licences and in advising on product marketing in compliance with license terms.
Open source licence compliance
Using open source components in own software products calls for a careful check regarding compliance with copyright and licensing rights. In this area, we offer the following services, for which we collaborate with a specialist technical service provider (Tjaldur Software Governance Solutions):
- Checking source code for licensing information to analyse licensing obligations and licensing compatibility
- Analysing the source code used for the binary code in the own product
- Checking third-party components in the object code for open source elements
- Verifying the open source licences of the open source components used with regard to the software versions actually used
- Checking the licence compatibility of the open source licences used and creating checklists for complying with licensing obligations when marketing the software
- Determining the need to release own developments under an open source licence.
In practice, it can be observed that many software products contain numerous open source components (generally libraries), which are subject to various licensing conditions, or individual software packages themselves combine code under various open source licences. For proper licence compliance, the software needs to be analysed in order to ensure that all licence conditions are respected. One focus in this work lies in checking for licence compatibility and resolving the question as to whether own developments are subject to copyleft, due to the software architecture actually used, and need to be released as open source. In this area, we have extensive experience in preparing reports and in consultancy, particularly for Linux, Eclipse and Java solutions.
The GNU General Public License (GPL) is the most widespread licence for free software, and has already been the object of legal disputes. The use of GPL software, particularly when combined with proprietary own developments or programs under other open source licences, calls for careful upstream analysis of “copyleft”. “Copyleft” refers to the obligation to disseminate software derived from a GPL program similarly only under the GPL licensing conditions. This can give rise to complex considerations as to which elements need to be licensed under GPL and which are elements where this does not apply. We are highly experienced in this kind of legal appraisal.
The GPL has been upheld in several court proceedings in German courts. If someone has released his developments as open source software, he is entitled to demand compliance with the licensing conditions or to prohibit continued use of the software. The enforcement of open source licences is often already possible via the extrajudicial route, particularly in cases where the breach of licence has occurred inadvertently. We are very willing to act in defence of your rights as originator. But for users too, compliance with open source licences by competitors can be of interest in ensuring that the licensing-compliant provider is subject to fair competition.
Using open source licences for own developments can be an instrument in ensuring competitiveness. That makes choosing the right open source licence vital to the planned business model. In practice, various licensing models have evolved, ranging from parallel licensing as both proprietary software and open source software (“dual licensing”), through to partial release of own developments. Here, we can support you in analysing the options available under licensing law.