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Open-Source Risk Management Tools
Many of us in the legal community have heard about the trouble that organizations have come across when using open source improperly (remember Cisco/Linksys, Katzer, and the BusyBox chronicles?). To help avoid experiencing the open-source surprises that these and other organizations have faced, the following is a discussion of various risk management tools that in-house counsel can rely on to perform effective open-source due diligence in software acquisitions. These include contractual measures, such as representations and warranties and indemnities; and extra-contractual tools, including software audits and a structured Open Source Software Adoption Process (OSSAP).
The Need for Open-Source Risk Management
The current software development and distribution environment calls for an increasing need to perform due diligence to determine code pedigree prior to executing a software acquisition. Instances of software being developed in-house from scratch are declining as a result of a combination of factors, including increasing accessibility of well-written open-source code; reliance on third-party developed code; and the rise of outsourcing and offshoring of programming. These factors suggest that software suppliers are susceptible to experiencing diminished control and imperfect knowledge regarding the composition of their code. So, what does this mean? If any parties in the supply chain unknowingly procure software containing open source and embed it into a product you are buying, your organization is at risk of facing unexpected legal and financial consequences arising from intellectual property infringement claims.
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