Software Litigation Opens Pandora’s Box of Key Open Source Issues

Aaron Williamson

©2015. Published in Landslide, Vol. 7, No. 3, January/February 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Litigation is nothing if not unpredictable, and it’s safe to say that when Versata Software sued Ameriprise Financial Services for breaching its software license,1 neither party got what it bargained for. Versata had its dirty laundry aired when Ameriprise discovered that Versata’s software incorporated third-party software in violation of the applicable free and open source software (FOSS) license. And both Versata and Ameriprise found themselves defending claims for copyright and patent infringement brought by the developer of the third-party software.2 These cases raise important issues of first impression related to FOSS licensing: whether providing FOSS to a third-party contractor for customization constitutes “distribution” of the software, and whether FOSS licensees can rely on estoppel or an implicit patent license in the absence of an express grant.

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