How to avoid open source licensing pitfalls

I came across this article in the dead-tree edition of Computer Weekly: it discusses how to avoid open source licensing pitfalls. It’s an interesting but flawed piece.

What did he get right? I think it’s fair to say that people should assess the risks of installing free software. Free software is still new to a lot of people making the details of these risk somewhat unknown. He’s right to say that many people do not understand what obligations using some of the various free software licences put them under. I work for a very technically-focused company yet even we have had some internal problems with this.

Given that this is the crux of the whole article, what is my objection?

Well, how is this any different to proprietary software? Are the T&C’s on commercial software really less onerous than free software? Are they any better known? Let’s put that another way: did you read the EULA that came with your copy of Microsoft Windows? I thought not.

He makes a big thing of liability (“The risk of third-party intellectual property rights infringement … is a noteworthy concern”), giving a big red flag to open source software. While he concedes that “such risk is not confined to open source,” he then loses credibility by saying that the risk “is often perceived to be greater [in free software].” I’m not interested in the perception, as an expert in the subject I expect him to tell me the facts.

But is that right? Did Microsoft not make a big noise about them protecting you against violating patents while using their software?

They did, but then I came across this other article on ZDNet which talks about a patent ruling forcing Office upgrades. Yes, you read that right. Because Microsoft violated a patent, you may have to suffer the time and expense of upgrading all your installations of Office in order to be protected from legal action by Carlos Armando Amada, the guy who holds the patent.

So you may not get sued but you do have to pay for Microsoft’s mistake. The risks of using free software are different to those of using commercial software but it’s difficult to say that they’re lower. You need to be aware of the risks in both cases.

Note: Where I use the term Free Software here I mean the GNU definition (i.e., freedom) rather than “no cost.”