Although open source software can be used for free, it’s like raising a puppy (it doesn’t cost much at first, but it gets more expensive as you raise it). Before adopting open source, make sure you understand its hidden costs and pitfalls.
For startups, open source software is a double-edged sword. It can be a lifeline for a startup because open source software can help startups innovate quickly without starting from scratch. However, as some people have said, although open source software can be used for free, it’s like raising a puppy - it doesn’t cost much at first, but it gets more expensive as you raise it. The real cost of open source software is the cost of open source license compliance.
Misusing open source software can delay or destroy opportunities for investment. However, if you follow these simple rules, startups can easily achieve open source license compliance.
Rule 1: Don’t use software without license terms
Some software on the Internet does not contain license notices, but that doesn’t mean they can be used freely. The person who released the software may not have complied with upstream license terms. Or the author of the software may not have specified a license for their software - either in an open source way or otherwise. “No license terms” means no license: you should avoid using the software or ask the author to specify a license for the software.
Rule 2: Don’t violate open source licenses
The use of open source software may be difficult for its authors to track, but that doesn’t mean the use and non-compliance will be ignored. Violating open source licenses can expose startups to legal liability and public condemnation, and may even affect their ability to be invested in or acquired. It may also cause potential customers to refuse to buy your product due to concerns about downstream liability. Software developers have put in tremendous effort to make their software open source, including the licensing costs mentioned above. Misusing open source software is unfair to these developers and undermines the innovation they hope to promote.
Rule 3: Track the software you are using
Someday you will have to provide a list of the open source software you are using. Maintaining this list in a timely manner will save you a lot of time and effort, as potential investors and acquirers will ask you to provide it. Most open source software download packages include a “license.txt” or “copy.txt” file. Keep a copy of the license and record the software it covers. Most startups use simple spreadsheets to track software licenses.
Rule 4: Understand permissive and copyleft licenses
Open source licenses are roughly divided into two types: permissive licenses (BSD, MIT, and Apache) and copyleft licenses (GPL, LGPL, Eclipse Public License, Mozilla Public License, and Common Development and Distribution License</rt>). Most companies and their customers have no legal concerns about using software under permissive licenses. However, following copyleft licenses requires more caution, and keeping software proprietary may be inconsistent with certain specific plans.
Rule 5: Comply with license notice requirements
Whether it’s a permissive license or a copyleft license, all open source licenses have notice requirements. Usually, this means that when distributing open source software, you need to include a copy of the license that applies to it. Simply including a link or abbreviated form of the license is usually incomplete. To avoid confusing or alienating your customers, it’s important to develop a notice delivery strategy that complies with most open source licenses.
Rule 6: Understand which open source licenses are compatible with distributed software
Except for the Affero GPL, most open source licenses do not address software as a service (SaaS) scenarios. For SaaS and distributed components of cloud systems (such as JavaScript) or distributed software (including mobile apps and beta versions), you can use software under permissive licenses, but you need to be particularly careful before using software under copyleft licenses. Only use GPL-licensed software when it is completely executed in its own process and has no linked code, and don’t believe the following rumors about how to comply with GPL: dynamically linking to GPL code or letting customers download GPL software. Only use LGPL software as a dynamically linked library. Use software under other copyleft licenses without modifying the API. Following the distribution rules of mobile app markets may conflict with following certain specific copyleft licenses (such as GPL or LGPL).
Rule 7: Don’t contribute to or release open source software without consulting a lawyer
Contributing to and releasing open source software may be a boon to the public, but it may not be the right choice for your business. Once contributed or released, any intellectual property you have in the software is unlikely to form the basis for your company’s valuation. Your lawyer can help you better understand how to choose between proprietary and open source software and provide guidance on this important business decision.
Rule 8: Ensure your employees and third-party developers follow these rules
Whether it’s due to open source violations caused by your employees or third-party contractors, the legal and publicity issues will fall on your head. You can avoid these problems through proper training and tracking of open source software.
Rule 9: Plan for the future
Startup business models can change quickly. The SaaS model can quickly transition to the distributed software model. No matter what your current model is, following the rules for distributed software will provide you with greater flexibility to transition to the distributed software model without having to remove certain open source software and change related functions.
Adopting these rules will help startups take advantage of open source software and reduce the risks you encounter when seeking investment or acquisition. Third parties interested in your startup want to know how you handle open source software issues, so make sure you are prepared and can provide them with positive and professional answers.
(Image: Beth Cortez-Neavel on Flickr. Public Domain. Modified by Opensource.com)
About the Author: Heather Meeker is a partner in the Silicon Valley office of O’Melveny & Myers, advising clients on technology transactions and intellectual property, and is an internationally recognized expert in open source software licensing. Heather received the California Lawyers Association Intellectual Property Vanguard Award in 2016. Best Lawyers</rt> named her the 2018 IT Lawyer of the Year.
About the Translator: Xue Liang is a senior consultant at Jihui Zhijia Intellectual Property Consulting Company, specializing in patent search, patent analysis, competitor tracking, FTO analysis, open source software intellectual property risk analysis, and is committed to providing intellectual property consulting services for Internet companies and high-tech companies.
