Profoss / Events / April 2009 Legal Matters / Speakers / Benjamin Docquir / Benjamin Docquir interview

Benjamin Docquir interview

You'll give a talk on the Impact of FOSS licenses on business conduct. How big is this impact?


The use of open source software may impact businesses severely if they fail to address the legal issues raised by open source licenses. A.o., these issues range from compatibility between licences to compliance with licence requirements but also, and most importantly, to possible “reciprocity” effects of the licence, with as possible consequence the duty to distribute your own code under an open source license.


Like any other critical asset of a company, open source software may adversely impact deal prices in a merger, but also in the framework distribution or joint venture agreements, and it can result in heavier warranty obligations on the part of the software supplier.


Are people impacted aware of this?


Although it is still necessary to educate people as to the possible consequences of integrating open source software components in their products, I am confident that the level of awareness amongst software vendors in general has been increasing over the last years. This is partly the result of several lawsuits that received good media coverage. Conversely, the awareness of open source requirements amongst general businesses using (or not yet) open source software remains low.


Could a FOSS license possibly be interpreted differently by a judge (for example on liability) if the software covered is used in a professional environment rather than by private user?


In the event the software vendor is a professional, this will certainly make a difference from the point of view of his obligations and the warranties he must offer. As to the software user, the discussion will rather focus on whether or not the software is distributed or modified for commercial purposes (rather than internal business purposes). Lastly, and quite obviously, if the user is a consumer, i.e. if he uses the software for private and non-business purposes, then a number of legal provisions governing the protection of consumers could apply.


What are the differences for a company between the procurement procedures for proprietary software and FOSS?


It is hard to answer this question in a general way, since the procurement process will always depend upon the bargaining power of the parties. More specifically, the procurement of software commercialized under an open source licence (thus, not as a component of a proprietary product) must be based on strong and precise warranty obligations as to the conformity and the possible defects of the software. Generally speaking, any procurement procedure must review and take into account at least (i) the rights granted by the licensor, (ii) the extent of the representations and warranties he provides and (iii) the limitations/exclusions of warranties. When it comes to open source, the licensee must ensure (where appropriate) that the usage rights granted do not entail an obligation to submit his own code to an open source licence, that the licensor has an obligation to provide appropriate bypass solutions, in a timely manner, in case of non compliance with any open source requirement, and more generally the licensee must demand the fullest disclosure and transparency on the part of the licensor as to the possible open source components (and the applicable licences) included in the product.


Some companies feel safer with proprietary licences because they say they know who to sue. Is this argument really solid? (this part only if it is relevant: I thought some proprietary licences even limit the right to sue of the users who accept it?)


That doesn’t seem relevant : either you use an open source component as a developer/IT engineer, and then you must bear the consequences thereof (notably that you may not be able to bring proceedings against the author/the community that contributed the component); or you use a software product that includes open source components, and generally you negotiated a contract beforehand with an identified IT supplier, who you will certainly bring to court if there is a problem. Now, it might be that the supplier (whether or not an open source distributor or licensor) excludes or limits your right to bring proceedings. But such clauses are not necessarily enforceable.