Legal Issues with FOS-ERP: A UK Law Perspective

Legal Issues with FOS-ERP: A UK Law Perspective

Sam De Silva (Manches LLP, UK)
DOI: 10.4018/978-1-61350-486-4.ch007
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Abstract

Whilst there are numerous benefits for a business from procuring a ERP on the basis of FOS licensing terms, there are a number of legal risks which need to be considered. These legal risks include: (a) assuming all FOS licences are the same; (b) uncertainty as to the enforceability of FOS licences; (c) lack of clarity in relation to the legal characterisation of FOS licences; (d) risk of poor performance; (e) risk of IPR infringement claim; (f) issues arsing from reciprocity; (g) legal challenges to FOS licences; and (h) the issues arising from the missing contractual provisions. The chapter outlines these legal risks and provides recommendations as to how to mange such risks.
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Introduction

At its simplest level, free/open source (FOS) is a way of licensing software and this chapter accordingly begins with a reminder of why we need software licences and what they typically include in a conventional model.

It is from that basis that the different approach taken in FOS licensing is introduced. This chapter outlines the key features of FOS licences (in particular the most common FOS licence, the GNU General Public Licence) and considers the key legal issues and risks to be considered when licensing an ERP using FOS. These legal risks include:

  • assuming all FOS licences are the same;

  • uncertainty as to the enforceability of FOS licences;

  • lack of clarity in relation to the legal characterisation of FOS licences;

  • risk of poor performance;

  • risk of IPR infringement claim;

  • issues arsing from reciprocity;

  • legal challenges to FOS licences; and

  • the issues arising from the missing contractual provisions.

This chapter is based on the laws of England and Wales as at 15 October 2010.

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Background

To understand some of the legal risks a business could encounter with using a ERP licensed on the basis of a FOS licence, it is useful to explain how ordinary (i.e. proprietary) software is licensed.

As a general comment there is only a limited amount of literature and research on the legal issues with FOS-ERP. It should be acknowledged that much of the literature on open source software is from the perspective of developers who regard the social ideal of shared software and the developers’ community above all other ideals (such as securing a revenue model), without acknowledging some of the legal difficulties with open source licensing (such as those canvassed in this chapter) (James, 2003).

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