Open source software

In recent years, open source software has become widely used in the software industry and by major corporations, not just by startup companies. Open source software can perform many functions, from managing small file servers to large, complex databases. Using open source software can be a cost-effective way to develop and distribute software.

However, every software technology agreement must consider whether open source is used, including agreements for acquisition of technology companies, as well as acquisition or licensing of software. Depending on the open source license used and how the open source code is used (for example, whether there is dynamic linking or static linking, and whether there is distribution of the software), there could be an extremely damaging viral effect resulting from incorporating open source software into proprietary code that is protected as a trade secret.

In the open source arena, our experience includes:

  • Advised health care clients regarding its use of open source to provide health care data model as an ASP offering to hospital clients
  • Advised on the benefits and risks associated with use of an open source software platform (Drupal) in software development and its potential viral effect on proprietary software
  • Advised clients regarding open source usage policy for its programmers who develop code for external applications and use of GPL code in general and its risk of developing code with Java
  • Advised regarding the impact open source software may have on the value of a proprietary medical device
  • Routinely advise our clients regarding representations and warranties about open source code in asset purchase and merger agreements
  • Advised a solution provider as to how to incorporate Java and other open source development tools into its product offerings