Reassessing The Benefits and Risks of Open Source Software
January 2010
By: Andrew (A.J.) Tibbetts and Edmund J. Walsh
Intellectual Property & Technology Law Journal
From the early days of open source software, there have been questions about the legal risks of incorporating open source into a product. Questions focused on two types of risks: (1) the risk of losing competitive advantage from open source terms requiring a waiver of intellectual property (IP) rights in products incorporating open source software and (2) the risk of IP infringement caused by copying, whether intentional or unintentional, from proprietary software into open source software. For many years, the speculation about these legal risks has been just that—speculation—as there was no substantial litigation over open source software.
A recent spate of litigation has changed that. Litigation has touched on both of these issues, including suits to enforce open source terms (which could the basis for losing IP rights in products using open source) and suits charging infringement based on the use of open source software. For-profit companies that made decisions about the legal risks of open source based on a history free of litigation should reassess their risks.
