In-House Management of Open Source Licenses

May 7, 2010

Jennifer Buchanan O’Neill

Vice President and Managing Assistant General Counsel, Product Development

AIPLA Spring Meeting

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Copyright © 2010 Jennifer Buchanan O’Neill. All rights reserved. Apache is a trademark of The Apache Software Foundation. All trademarks, trade names, service marks and logos referenced herein belong to their respective companies.

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CA CONFIDENTIAL -- PREPARED IN ANTICIPATION OF LITIGATION

Agenda

Recognizing transactions and other in-house activities likely to involve the use of open source code

Potential approaches to identifying and negotiating open source terms in licensing and service agreements

Best practices for the internal use of open source code

CA CONFIDENTIAL -- PREPARED IN ANTICIPATION OF LITIGATION

Where May Open Source Be An Issue?

Inbound technology licenses Professional or technical services

agreements Business process outsourcing Employment agreements Mergers and acquisitions Internal business use

Where May Open Source Be An Issue? (cont.)

Joint research and development/CRADAs Customer sales contracts In-house software development Participation in industry alliances and

standards bodies Internal policies for Internet and email

usage

What Do I Do Now?

If my client wants to license code from a third party:• Require that party to identify all open source code that

it uses and distributes, together with the governing license and a description of how the code is used

• Assess that party’s compliance with applicable licenses. AVOID BEING A DOWNSTREAM INFRINGER.

• Obtain sufficient contractual protections against infringement in the form of warranties and indemnification

What Do I Do Now?

If my client wants to license code to a third party:• Determine what open source code has or will be used

by your client, including documentation of any modifications made

• Determine whether your client’s product must be distributed under an open source license, in whole or in part

• Assess current compliance and remediate any potential issues prior to external distribution of code

• Determine to what extent your client is willing to serve as “insurer” of open source code liabilities

What Do I Look For?

Where can I find the license agreement?– Online open source community or project web site– User documentation– Clickwrap agreement accompanying software– LICENSE, NOTICE, or other *.txt file in the program’s source or

object code– Confirm licensing on a third-party site like Ohloh or Koders

Look for dual/tri-licensing scenarios Determine requirements for use, redistribution

and modification of code – Wide range of licenses with different ramifications for

commercial users– Scan the source code if there’s any doubt as to origin

Other Key Concerns

Is the open source component critical to your client’s business (as a service provider or otherwise)?

Verify how the open source project or community ensures the pedigree of the code.

• Contributors may have submitted code under terms other than those of the community• Proprietary code may have been incorporated in violation of applicable licenses • Established open source communities like Apache Software Foundation and Eclipse Foundation have implemented best practices for maintaining integrity of contributions.• Review terms of the project’s Contributor License Agreement (or equivalent)• Again, when in doubt, SCAN the code

Best Practices for Code Management

Document review and approval process for requests to use or distribute open source code, with management and legal as key participants Create database of open source components, identifying applicable license requirements and how/where open source is used by client Create path for publishing source code where required Implement procedure for providing notices, attributions and licensing terms to external customers Require awareness training for developers and IT department

Questions?

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