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Use of open-source software and related copyright license infringement

Disclaimer: The information provided in this factsheet is meant as an educational resource only and should not be construed as legal advice.

  1. What is open-source software?
    • Open-source software (OSS) is code that is designed to be publicly accessible.
    • The owner of the software can release their software to the public through a copyright license: the license grants users the right to use, investigate, enhance, change, and distribute the software and its source code.
    • Popular open-source licenses include MIT licenses, NU General Public license, and the Apache License.
  2. A copyright is a type of intellectual property that protects original creative works, including software code.
    • Copyrighted work can’t be reproduced or published, in whole or in substantial part, without express consent of the copyright owner.
    • Consent for using an open-source software is provided through the user agreeing to the copyright license.
    • Open-source software licenses serve as a legal agreement between open-source author and the user.
    • Many of the provisions contained within open-source software licenses address patent or copyright licensing to preserve the free and distributable nature of open-source software.
  3. Benefits of using OSS:
    • Open-source software offers a flexible, cost-effective, and speedy solution to developers in the process of developing innovative software solutions.
  4. User beware:
    • It is of utmost importance that the licensing conditions of open-source software are respected during use.
    • Refraining from reading and following the licensing conditions can expose a user to a great deal of risk- you can be held legally accountable for copyright infringement and/ or breach of contract.

Example 1: In the US lawsuit Jacobsen v Katzer (Jacobsen I), the judge found that copyright was infringed by breaching the copy, modification and distribution conditions from an OSS Artistic License, since it had not provided the required copyright notice and modification disclosure when distributing the work.

  1. Certain open-source software licenses have begun to incorporate express patent grant clauses into their licensing terms to protect from this intellectual property claims (e.g. GPLv3 and Apache 2.0).
    • Using an OSS with patent grant clauses for your software solutions means that you are generally secure from patent infringement claims brought by the OSS license holder.
    • However, many open-source licenses do not contain these licenses.
  2. Due diligence considerations:
    • Generally, companies should compile the open-source software that is in use, as well as their licenses, in order to help identify risks of potential copyright infringement.
  3. An open-source software policy within your company should include the following requirements:
    • Obtaining permission of the use by the employer.
    • Logging any open-source software used.
    • Investigating licensing requirements of the open-source software to ensure compliance.
  4. Detecting OSS use in your company:
    • Monitoring and screening programs can be used to detect the presence of open-source software.
    • They can scan and find potential open-source risks in source code.
    • These programs can help the implementation of an OSS policy.
    • An example of a program is “Synopsys”.
  5. When considering software purchases, it may be important to have discussions with the purchaser about the availability of indemnification warranties for potential open-source breach claims.

Key considerations for Canadian companies:

Additional information:

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