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Abstract

Many commercial enterprises effectively utilize open source code when developing various software products—virtually every software developer uses open source in his or her work. But along with economic benefits and production efficiency come significant legal risks, exacerbated by the wide availability of OSS components. While some licenses are permissive and demand very little, others require any work based on, or even containing only parts of an open source code, to be distributed only as OSS.

Most commercial enterprises and software developers recognize potential business and legal risks and implement some sort of compliance mechanism as a best practice. But what should the enterprise do if its software developer either intentionally or inadvertently incorporates open source code? Can one remedy such a situation? What are the chances that the licensor will actually enforce the license requirements? And if the company decides to comply, what does compliance then entail?

This Comment, in an attempt to answer these questions, concludes that the risks associated with OSS, although not minimal, are generally known and an effective toolset to prevent intermixing of open source code with closed code is available. If the violation nevertheless occurs, there are steps a business could take to either remedy the violation or comply with the licensing requirements.

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