Cavazos Presentation on Open Source

By Eric Goldman

At the UT Austin Technology Law Conference in May, Ed Cavazos spoke about open source issues. He proffered seven common myths about open source:

#1: the phrase “open source” is meaningful, or developers understand all this so I don’t have to.

#2: open source software is all in the public domain, or open source licensing isn’t consistent with copyright ownership

#3: contributors to open source developments have the necessary rights to contribute, or the SCO lawsuit proves that all liability risk is FUD

#4: all open source software is “viral” and can change proprietary code to free code, or you can inadvertently give away your proprietary code with bad open source license compliance.

#5: the GPL is a well-written document, or millions of adopters can’t be wrong

#6: lawyers can answer the tough questions if they spend enough time on them, or a $30,000 memo on “linking” or “derivative work” is a good idea

#7: scrapping non-compliant code is the only option, or the sky is falling.

Heather Meeker was scheduled to present but was a last minute scratch, but Ed relayed her assessment of the three generations of M&A representation about open source software:

* circa 1999: sellers were asked to represent that they didn’t use any open source software—a ridiculous representation that was almost always untrue

* circa 2002: sellers were asked to disclose all open source software they used—a virtually impossible task that still lead to widespread non-compliance by sellers

* circa 2007: sellers are being asked to represent that they are in compliance with all open source licenses—a much more reasonable solution that seems to get at the only important issue. But why limit this to open source? Presumably buyers care about compliance with proprietary software license agreements as well. Therefore, ultimately I think a discrete open source representation should go away and the issue should be addressed by the typical material agreements representation.

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