OSS is becoming increasingly more mainstream and widely used by businesses and Government alike. In light of this growing trend, this article provides an overview of OSS and considers the advantages and disadvantages of using OSS. A second article will follow in the next edition of the IT/DP e-bulletin, which will examine some recent developments in this area including the introduction of version 3 of the General Public Licence.

The Basics

For the purposes of this article "software" is interpreted as meaning a "computer program" and these terms shall be used interchangeably. When the source code of a program is mentioned, the human readable programming language created by the software developer (i.e the recipe for the computer program) is being referred to. This should be compared with the object code which is the instructions or code which take the form of a binary code fed into a computer in order to make it carry out tasks.

What is OSS?

In order to understand what OSS is, it is useful to examine the meaning of proprietary software first. Proprietary software is software in which the owner has intellectual property rights which that person has the right to prevent others from using. The owner of proprietary software typically closely guards the source code.

OSS by contrast generally refers to software in which the source code is made publicly available on certain licence terms. The software is created by a developer community rather than one single software developer entity. It is based on the idea that when the source code for software is made freely available and can be read, copied, modified and distributed on an almost unrestricted basis, the software can evolve and improve at a much faster rate than proprietary software. Another common feature to OSS is that no licence fee is usually imposed upon the end-user or distributor of the software. This potential saving in proprietary licence fees has generated much interest from businesses and government and in fact a range of companies incorporate OSS into their products.

What are the advantages?

The advantages of using OSS are as follows:

  • cheaper development costs - users customising the software are commonly obliged to share the source code in their developments for free;
  • quicker time to market – using pre-made OSS components shortens the development phase and as opposed to just one software developer working on the program, OSS involves a collaborative effort involving sometimes hundreds of people contributing to the source code;
  • cheaper products for software end users – as usually no licence fee is imposed on the end-user;
  • product customisation – users with access to the source code can enhance and tailor products as necessary to meet their own commercial requirements;
  • robust software – as the source code is made available to the public, any defects and bugs can be quickly spotted and rectified and the product continuously develops and improves. Major OSS projects usually employ rigorous peer review mechanisms to arrange all contributions into a coherent product. As a result, code adopted for an OSS product can be at least as high a standard as proprietary software; and
  • commercial value to certain companies – OSS may require customisation to install and integrate with existing computer hardware and software, as well as ongoing training and maintenance. Service-orientated companies can earn significant revenues by providing such integration, support and training services.

What are the disadvantages?

The disadvantages of using OSS may include:

  • "contamination risk" of integrating proprietary software with OSS - many OSS licences (including the most commonly used General Public Licence) impose a requirement that any person distributing software based on or derived from the OSS to redistribute the resulting product on similar open source terms. This means that the source code for the entire resulting product must be redistributed or the code must be made freely available. In other words, by combining proprietary software with OSS, this could "contaminate" the proprietary material. There is much legal and practical uncertainty surrounding this concept of "contamination risk". Many OSS licences are often unclear as to exactly what is the threshold at which combination with proprietary software results in infection. There is no legal guidance or precedent in the UK on this issue;
  • IPR infringement and lack of indemnities - the risk of infringing IPRs of third parties is arguably higher in comparison to using proprietary software since many (often anonymous) people contribute to the code. In contrast to many proprietary licences, OSS licences generally do not contain indemnities in respect of third party IPR infringement claims;
  • lack of warranties and security - since many OSS licences are free of charge, most OSS licences are licensed on an "as is basis" in that they do not contain warranties or indemnities as to quality or in relation to security;
  • non-negotiable - OSS licences are generally non-negotiable and therefore it is not usually possible for companies that are accustomed to commercial licensing terms to tailor them to meet their own commercial needs;
  • legal uncertainty - the reliability and quality of OSS can deteriorate if contributors fork off to create different versions. Furthermore, OSS licences can be poorly drafted or drafted in a way that does not meet the requirements of the user. They have also yet to be tested in the UK courts;
  • lack of 'after care' - the fact that comprehensive support is not normally included with the licence can lead to added hidden expense. Users often have to incur additional expenditure on appointing OSS service-orientated companies to provide after care support services; and
  • incompatibility - some OSS licences are incompatible with one another and with proprietary licences.

Proceed with caution

If you are considering joining the increasing numbers of organisations who use OSS, it is advisable to bear the following practical tips in mind:

  • implement a consistent organisational policy for OSS including keeping a record of all OSS you do use;
  • consider seeking indemnities from suppliers if possible;
  • check total cost of software (e.g. support, maintenance and after care) as well as the initial licence costs; and
  • read the licence terms and ensure that you can comply.

This article provides a brief summary of a specialised area. We would strongly recommend that you seek legal advice if any of the issues raised could affect your business.