The low-down on Open Source Law

Open Source Law founder, Brendan Scott, discusses the legal implications of FOSS in Australian government and enterprise organisations

Brendan Scott is a Sydney-based lawyer specialising in communications and information technology. After almost a decade of experience working in large law firms, Scott established and heads the Open Source Law legal practice and Web portal to help organisations, particularly in the public sector, use FOSS to better the long term value of their ICT expenditure.

According to its corporate profile, Open Source Law provides services in all aspects of ICT-related law. Most of OSL's clients have an open source connection, but not all of its work is strictly open source related. The practice also advises on ICT procurement, including development and systems integration projects, business related drafting, IP ownership and distribution agreements.

Here, Computerworld chats with Scott about the growing impact free and open source software is having on Australian government, businesses and enterprise, and what can be done to fuel and facilitate that growth.

Is your business increasing due to the growth of open source software adoption in enterprise and large organisations?

Business is good. I have noticed an increase in cold calls I am receiving for open source issues. At a broader level there has been marked growth in the Australian industry and therefore in the pool of users it is servicing.

In your experience, are there any common themes affecting the decision to deploy open source or proprietary software? And what should be considered in a good open source policy?

The question about themes is difficult to answer because it all depends on how the enterprise is dealing with the software. If they are a bare user they have a different profile from if they are customising an application, to if they are on-supplying the software, to if they are on-supplying with modifications.

Let me make a few short comments on the "bare users" and suppliers:

From a user's perspective, the licensing requirements have minimal impact. FOSS allows users enormous flexibility in their deployment. They are not subject, for example, to artificial limits on the configuration of the implementation, the type of hardware on which the software is installed, or on the number of users. To add 10 or 100 copies of a FOSS product has no extra licensing fees. Users do not need to wait to negotiate a contract. If they need the software to be customised they can do this. Even if the licensing fees were not zero, FOSS still gives cost benefits because of this flexibility.

Rather, open source issues for users are more subtle. Open source is about community. You need to understand the community to operate effectively in it and this means changing your own behaviour. For example, if you start a new job and there is a cake morning on Monday, then you are going to have to find a cake shop or hone your baking skills if you want to be part of the team. Popping out for group coffee on a Friday like you did at your last employer won't work. That is why it's important to connect with people who are already members of the community and know their way around it - people from the Monday set, not the Friday set. For example, one of the risks I have identified for my clients is in getting support from the community. The lodgement of a bug report or a support request from a work address can inadvertently disclose confidential information to the world. That is the sort of thing a good open source policy will cover. Unless you're in the community and understand how it operates you're not going to be alive to those sorts of risks.

The case for suppliers is quite different. Licensing issues for suppliers can be very simple or very complex depending on the circumstances. The flexibility of open source licensing gives suppliers great flexibility in creating and delivering solutions and this means there are interesting legal issues to be resolved. For example, a lot of my clients are implementing "software as a service" models enabled by open source components. Because of the licensing flexibility they can also offer hybrid models where their clients get to pick and choose what bits are hosted and what bits are installed at the client's premises. I help them put together terms and conditions which anticipate this complexity.

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