Journal Article

Managing commercial risks in open source software licensing

Lothar Determann, Stuart Pixley and Gary Shapiro

in Journal of Intellectual Property Law & Practice

Volume 2, issue 11, pages 770-776
Published in print November 2007 | ISSN: 1747-1532
Published online September 2007 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpm163
Managing commercial risks in open source software licensing

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Legal context

The article reviews the commercial risk allocation clauses in typical open source licence terms and discusses their enforceability and implications.

Key points

The enforceability of warranty disclaimers and limitation of liability clauses in common open source licence terms is questionable, particularly in a cross-border context, and commercial licensors should take additional steps to protect themselves from down-stream risks.

Practical significance

Open source software presents a number of unusual commercial issues, because it is available free of charge and the providers try to disclaim warranties and liabilities. End users and resellers have to adjust their own in- and out-licensing models to accommodate this situation.

Keywords: The original proprietary model for the development of the software industry faces severe competition from the open source movement, which seeks to free the creation of computer software from the shackles of patent and copyright.; Adoption of the open source model poses challenges for the establishment of business models for the exploitation of open source software.; This article considers the strategic issues and contractual techniques that should be considered when seeking to reduce the risks that are inherent in open source and commercial software licences.

Journal Article.  5126 words. 

Subjects: Arbitration ; Intellectual Property Law

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