MESSAGE
| DATE | 2004-03-10 |
| FROM | From: "Inker, Evan"
|
| SUBJECT | Subject: [hangout] Open source still faces open legal questions - BS Article of the Day
|
I thought I would share a Totally useless and BS Article re: Open Source...
Open source still faces open legal questions
By H. AMIR KHALID
KUALA LUMPUR: Open source software has many positive aspects, but there are
legal downsides too.
http://star-techcentral.com/tech/story.asp?file=/2004/3/4/technology/7461209
&sec=technology
Anyone may contribute to open source software (OSS) development as long as
they share the fruits of their efforts, and so proponents claim OSS evolves
faster than the proprietary kind. No one party claims ownership, so there is
no one to extract exorbitant licence fees from the user community.
But on the downside, nobody owns it.
If there was no one to claim an owner's entitlements, there was also no one
to carry out an owner's responsibilities, according to lawyer Deepak Pillai.
Deepak told an audience at the Third MSC International Cyberlaws Conference
here that given the dearth of litigation regarding OSS (see link below),
there were a host of unanswered questions about licence issues that would
affect potential users' decisions about whether and how to deploy it.
Because of its "vendorless" nature, OSS comes with no warranty and no
indemnity against losses due to faulty software, he noted. And because it
came with no maintenance and technical support from a vendor, IT staff would
need to have the knowledge to perform these functions inhouse.
In particular, the provisions of the GNU General Public Licence (GPL), which
accounted for some 85% of all open source licences, were as yet untested by
litigation.
This was an important issue because of the many differences between licences
for proprietary software and the GPL, he said.
Among these differences was the "viral" nature of the GPL, which would
extend to any software that it was combined with to form derivative
products.
All rights granted with OSS must flow through to and with redistributed
versions of the software. Proprietary software could thus become subject to
distribution if incorporated in OSS, and subject to litigation by owners of
the former.
Also, the GPL offered no warranty for OSS, which was supplied "as is," and
no liability for general, special, incidental or consequential damages.
A user is considered to have accepted the GPL licence conditions if he
exercises his right to modify and distribute software covered by it -- a
right rarely, if ever, assigned to users by vendors of proprietary software.
"There is a dearth of litigation worldwide," Deepak said.
This left a lot of questions open, he added: Whose responsibility would it
be to take legal action, for example, if the GPL were infringed? How would
the GPL be enforced internationally?
"In Malaysia, do the terms of the GPL fit into the body of Malaysian law? Is
the procedure for acceptance of the GPL sufficient? Does the concept of
derivative works fit within the Copyright Act 1987? Will Malaysian courts
uphold the exclusion of liability? What is the impact of not specifically
excluding liability for negligence? How are damages to quantified?" Deepak
said.
He said that legal advisers to Malaysian corporations should take into
consideration a number of issues for their clients:
* WHAT open source licence was right for a particular kind of business;
* HOW to manage open source licences in an IT environment mixing proprietary
and open source software;
* HOW to manage staff participation in open source projects and
contributions to them; and
* DECIDING to what extent warranties and indemnities could be given for open
source related products and services.
Deepak pointed out that proprietary software was still relevant and had a
part to play.
Total cost of ownership considerations, such as the need for inhouse
expertise in managing open source solutions, might sometimes indicate
proprietary software was a better option than open source.
He said the Malaysian developer community and corporate lawyers needed to
increase their awareness of legal issues related to OSS.
There was also a need to draw up policies and guidelines on the
acceptability of the various open software licences in the context of the
public and private sectors in Malaysia, he added.
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