Contract drafters rarely understand open source software (OSS). They see it as a threat, so when they’re buying software, they try to exclude OSS from their vendors’ products. In most cases, the concern is misplaced. Software licensees may have good reason to worry about copyleft software, which is one type of OSS. But other open source software poses no real threat. Plus, even copyleft should cause far less concern than it often does. And most standard contracts already have IP terms that address copyleft pretty well.
This series of five posts explains when OSS matters and when it doesn’t. Then, it outlines my suggestions for addressing open source in tech contracts.
Here are the individual posts on Open Source in Software Procurement:
- Intro (this post)
- When it Matters (but skip this if you already understand open source licensing)
- Warranties
- IP Indemnities
- Security
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David Tollen is the author of The Tech Contracts Handbook, the American Bar Association’s bestseller on IT agreements. He is an attorney and the founder of Sycamore Legal, P.C., a boutique IT, IP, and privacy law firm in San Francisco. His practice focuses on software licenses, cloud computing agreements, and privacy. And he serves as an expert witness in litigation about those same topics. Finally, David is the founder of Tech Contracts Academy and our primary trainer.
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