September 20, 2011 Articles

Vendor Indemnification on the Open Range

By David Swetnam-Burland and Stacy O. Stitham

When it comes to intellectual property protection, do businesses get what they pay for when they use open-source software? Cost considerations and the ability to tinker at will with licensed software may make open source an attractive option for any company in the market for an operating system, web server, or software —as may the romantic notion that software development should be an open range for exploration and innovation. However, for an online business defending a patent infringement claim based on its use of an open-source product to develop its website, the open-source solution may look less attractive with each passing settlement demand or bill for attorney fees.

By no means do we intend to suggest that the open-source solution is a bad choice for a cost-conscious, growing operation; indeed, there are many reasons to recommend it. Nor do we have any desire to take a position on the comparative merits of open-source software as contrasted with software solutions offered by established vendors that charge for their services. However, for any company weighing its options, we do hope to prompt careful consideration of the intellectual property ramifications of adopting open-source technology. As e-commerce firms become a growing target of increasingly expensive patent lawsuits, open-source software may come with costs that don't appear on the label.

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