Open source offers many advantages to software developers.

However, integrating an open-source component into an IT solution implies respecting many constraints defined by the very principle of open source and the licenses used.

More or less permissive, the "free" license can indeed have a significant impact on the value of the company and the legal security of the entire activity. Failure to comply with the terms of distribution of free software is regularly punished by the courts.

Thus, both the creation and the use of open-source software requires strategic decisions to be taken beforehand, which implies the definition of an informed open-source licensing policy.

What elements should be taken into account when defining such a policy?

1. THE DIFFERENT TYPES OF OPEN-SOURCE LICENSES

Free licenses use copyright to prevent privatization of the code and thus define the terms of redistribution of the software, even when it is modified.

This is called copyleft.

There are three types of free licenses, depending on the extent of the copyleft:

a. "Weak copyleft" licenses

The weak copyleft license applies only to the original open-source software.

Therefore, it does not extend to creations in which the software is integrated, which may be redistributed under other free licenses, or even under proprietary licenses, provided that the source code is made available.

These include, for example, the LGPL and CeCILL-C licenses.

b. « Strong copyleft » licenses

A strong copyleft license applies to any redistribution of the original software, even in its modified version, and also extends to the creation in which it is integrated.

Again, the source code of the modified versions must be made available.

The best known of these are the GNU/GPL and CeCILL(-A) licenses.

c. « Non-copyleft » licenses

These are the most permissive licenses.

The software can then be redistributed in its initial or modified version, without its source code, under any license, including proprietary license.

This is for example the BSD license.

2. LEGAL ISSUES OF FREE LICENSES

The use of a component under a free license is likely to be confronted with two main legal issues:

a. Compatibility conflicts between the different components of the same software

The terms of the open-source license may provide the conditions under which the open-source software will be able to:

  • be integrated into a software that will be distributed under another license (high license compatibility);
  • host a component subject to a separate license (low license compatibility).

Thus, the use of an open-source component brings many legal consequences and may even prove to be blocking for companies that choose to use it.

On the one hand, the open-source license, even if it concerns only one component of the software, is likely to determine the conditions under which the software may be distributed and/or exploited.

The same applies to the use of components under strong copyleft licenses which may exclude any private distribution of the software in which the open-source component is integrated.

Therefore, one must analyze in detail the terms of the selected open-source license, in order to anticipate any compatibility conflicts that may arise, particularly if all or part of the software is to be used on a proprietary basis.

On the other hand, the use of an open-source software implies an enhanced duty to provide advice for the software provider.

The latter must alert its client regarding the conditions under which it may, or may not, benefit from specific developments on its software and exploit these developments in a proprietary manner.

For this reason, the provider may be held liable for violation of the open-source licenses.

The French Court of Appeal of Paris has indeed been able to punish a company for providing its client with software under a proprietary license even though it contained a component under the GNU/GPL license, which excluded such exploitation.

b. Know-how Protection

Some free licenses make it mandatory to distribute the software code, even in its modified version, which can pose serious problems in terms of know-how protection.

In order to ensure a balance between openness and protection, it is therefore necessary to carry out a complete analysis of the free license in order to determine the extent to which the company's specific developments can be protected.

3. BENEFITS OF FREE LICENSES POLICY

The implementation of a free license management policy can help to address these legal issues in an operational and strategic manner.

a. A monitoring and strategic development tool

The choice of a free license is an extremely strategic choice.

The implementation of a free license policy will enable your company to analyze in an operational manner the risks and benefits of using the various licenses considered and to guide your choices according to your specific needs.

b. A traceability tool for used licenses

The use of one or more free software components is likely to determine the license under which the derived software will itself be distributed, which is a crucial issue for companies.

However, the implementation of a free licensing policy, detailing both the licenses used and their legal implications, can enable your company to verify upstream the lower and higher compatibility of the various components of the same software and thus anticipate the risks that could arise.

c. A tool for valuing your company's intangible assets

Adopting a free licensing policy can also allow companies to define the terms under which they will be able to protect their know-how, particularly with regard to modified versions of open-source software.

The risk mapping of the contemplated free licenses could then include the conditions under which the source code of the modified version of the software should, or should not, be made available to third parties and the actions that could be implemented to protect specific developments.

Thus, while the use of open-source software offers significant advantages, it is nevertheless necessary to anticipate, upstream, the legal risks that may arise from it, by adopting an open-source licensing policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.