Open source software
Open source software (OSS) is everywhere. It is found not only in conventional software, but also in many IT components – in the automotive industry, consumer electronics and medical technology. Wherever software is used, OSS is almost always present. Open source software is also deployed in industrial machinery, IoT devices and in critical infrastructure, such as in control units of embedded systems.
Open source is not software that is outside the law
The majority of companies in Germany have made a conscious decision to use OSS. In many cases, however, it runs unnoticed in the background. It isn’t possible to tell by just looking at a product which software components it contains. That can be a problem for companies: OSS may be freely used and adapted, but it is not software that is outside the law. Just like proprietary software, it is subject to licence conditions that must be complied with. Failure to do so constitutes a breach of the licence. Non-compliance with the terms of the licence may result in losing the rights of use, with the risk of claims for remedy and injunctive relief. Even a product recall may become necessary if licences are infringed.
Our services around open source software
The experts in our interdisciplinary legal advice team at CMS provide support for legally compliant development and deployment of OSS. Through many years of advisory experience, we have acquired in-depth expertise in reviewing, assessing and classifying open source software licences. We work closely with tool providers to identify the OSS used in your organisation. When assessing the licences, we can draw on our own database with the results from analysing more than 100 open source software licences. As an OpenChain member, our advice is based on international standards, thereby helping you to avoid silo solutions.
Overview of our services: we support your OSS project
- Open source governance: We support you around introducing an open source governance system. On the basis of your risk profile, we work with you to develop structures and processes that ensure compliance with open source software licences, using our own tools (CMS Open Source Kit) and established standards (primarily OpenChain). We can also issue you with corresponding confirmation after successful rollout.
- OpenChain verification: As an OpenChain partner, we have deep familiarity with the international standard for open source compliance. We can assist you with self-certification in line with the OpenChain specification. If required, we can also issue a certificate (CMS OpenChain Compliance Verification) of OpenChain conformance, which you can show to third parties. We assist you around checking your upstream suppliers and provide the results in the form of a report.
- Policies & agreements: We handle drafting of open source policies and ensure that they are rolled out across the company in compliance with legal requirements. We regularly advise on licence agreements relating to commercial use of OSS.
- M&A transactions: In the context of M&A transactions, particularly when the sale of software is involved, we assist in identifying and mitigating risks while also clarifying warranty and liability issues. During transactions, we work closely with IT partners to identify OSS in the target firm. A software scan can be used to identify OSS and assess it in terms of risks for the transaction.
- Training: Our training courses on using OSS are aimed at in-house counsel, compliance officers and software developers. On request, training sessions can be conducted and documented online. The CMS Client Academy allows tracking and performance review.
- Dispute resolution: In the event of disputes, especially cease-and-desist warnings resulting from a breach of open source compliance, we can provide representation in and out of court.
CMS Open Source Kit
We have developed a modular system that allows companies to stay on top of open source compliance. The CMS Open Source Kit (OSK) brings together legal tech and tailored legal advice. It combines a technical workstream (use of a database containing standardised evaluations of more than 100 open source software licences) with highly specialised legal advice geared to the client’s particular needs. More on the CMS Open Source Kit:
Would you like to find out more about innovative ways of ensuring efficient open source compliance? Please feel free to get in touch at any time.
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