Andrew T. Pham
Verint Systems, Inc., Associate General Counsel, Global IP, Santa Clara, CA, USA

Matthew B. Weinstein
Dickstein Shapiro LLP, Associate, Washington, DC , USA

The explosion of open source software and its associated licenses has dramatically increased the complexity of deciding how to create, manage and enforce a uniform open source policy for “closed-source” commercial enterprises. Because of the complexity and risks associated with open source—where source code is made freely available for all to review, edit, and use—many closed-source commercial enterprises discourage or prohibit use of open source; a common and short-sighted practice. Open source can be an invaluable tool, and its risks can be understood, managed and controlled. This article aims to assist engineers, developers, managers, licensing professionals, in-house counsel and other open source practitioners in developing a consistent and effective open source policy to enable a peaceful coexistence between open source and closed-source in the competitive global marketplace.

Free and open source software (“FOSS” or collectively “open source”) has firmly established itself as part of the fabric of modern software development with over 180,000 existing software projects, tens of billions of lines of code, and more than 1,400 unique licenses.2 FOSS is not only made available to be used by other developers, but in most instances, copied, modified and distributed by them as well. It is typically offered without royalty requirements and distributed for both commercial and not-for-profit use, depending upon the wishes of its creators. Unlike commercial licenses, which are commonly negotiated on an individual project basis, use of standardized FOSS licenses by developers often leads to confusion. Although open source is “free” it is still in nearly all cases “proprietary,” meaning that someone still owns the source code and deserves credit for its development and subsequent uses. Open source licenses therefore generally contain instructions on how to give attribution in distributed works. “Free” does not mean public domain software, so enterprises should place the same care in FOSS as they would putting any third party code into their product.