|By Diana Marina Cooper||
|July 9, 2012 07:00 AM EDT||
Open source software has probably been the biggest driver of complex software solutions in the last decade. Access to a large variety of quality, peer-reviewed software has accelerated product development, reduced product introduction intervals and lowered the costs for producers of software and for those of us who leverage third-party software in our projects.
Many of us have heard about the trouble that organizations have come across when using open source improperly... remember Cisco/Linksys, Katzer, and the BusyBox chronicles? You may think that your organization is safe because you are buying proprietary software. However, if your software supplier unknowingly incorporated open source into its product, your organization may face unexpected legal and financial consequences arising from open source licensing obligations and the resulting intellectual property infringement claims. The good news is that there are various tools available at your disposal that can assist your organization in protecting itself from such open source surprises, such as contractual measures such as representations and warranties and indemnities; and extra-contractual tools such as software audits and a structured Open Source Software Adoption Process (OSSAP).
Some Basics About Commercial Contracts Relevant to Software Purchases
Commercial contracts include various provisions that protect and allocate risk among buying and selling parties. Among the most important are representations and warranties ("reps and warranties") and indemnities. Reps and warranties are assurances made by one party that are intended to provide certainty to the other party that relies on them. For example, a hypothetical software company ("Softco Supplier") may represent and warrant that it owns all of the intellectual property rights in the software it sells. If Softco Supplier does not in fact own all of the intellectual property rights in the software, the buyer ("Softco Buyer") has a right to claim damages for Softco Supplier's misrepresentation.
However, in many instances it is impossible for contracting parties to fully guarantee the accuracy of a statement. In these cases, parties opt to provide reps and warranties that are qualified by the knowledge of the party providing them. These types of reps and warranties can be problematic from the perspective of the party that seeks to rely on them. We will return to this in the following section, which specifically deals with the application of reps and warranties, and indemnities to open source.
Indemnities provide security against losses that are triggered by the occurrence of contractually specified events. Unlike reps and warranties, recovery from indemnities is not contingent upon whether a misrepresentation was made. In our example, if Softco Supplier (the "indemnitor") indemnifies Softco Buyer (the "indemnitee") for any intellectual property infringement claims against the software being sold, then in the event that such claims arise, Softco Supplier is obligated to compensate Softco Buyer for its losses.
Reps and Warranties vs. Indemnities in an Open Source World
In the software procurement context, it's important for buyers to determine whether open source code is incorporated into the software that is being purchased. The primary reason for this is that open source license obligations are binding. Failure to comply could have a diminishing impact on software value, as some open source cannot be mixed into products that have trade secret value. In addition, if a buyer purchases software without the knowledge that it includes open source, the buyer runs the risk of commercializing the product in a manner that violates the license that covers the open source code. This can leave the buyer exposed to costly intellectual property infringement claims.
The recent focus on open source reps and warranties and indemnification is linked to the growing instances of intellectual property infringement claims involving open source software. As courts in the United States, Germany and elsewhere have acknowledged the enforceability of open source licenses, notable violators have succumbed to costly settlements, and enforcement organizations such as the Free Software Foundation have become more aggressive in launching suits.
Because of the immense financial and legal implications of intellectual property infringement suits, a software buyer will often require its supplier to represent and warrant that the software being purchased does not contain any open source code. If open source is later discovered in the software, the buyer is entitled to seek damages from the supplier for the breach of the representation. However, as mentioned earlier, it's often difficult for contracting parties to fully attest to the accuracy of a representation. This situation arises in instances in which the contracting party experiences knowledge gaps. In these cases, a contracting party will seek to limit its liability by narrowing the representation to apply to the knowledge that it possesses. Taking our earlier example, if Softco Supplier had acquired code from a third party, or engaged in outsourcing of programming, it may not be positioned to fully attest to the fact that the software it sells does not contain any open source. As a result, Softco Supplier will represent and warrant that ‘to the best of its knowledge, open source is not incorporated into the product.' In this case, Softco Buyer is only entitled to damages if it can show that Softco Supplier knew that its representation was untrue at the time that it was made. If this fact cannot be established, Softco Buyer is left without a remedy for any losses arising from Softco Supplier's misrepresentation.
Unlike reps and warranties, recovery from indemnities is not contingent upon whether a misrepresentation was made. Thus, if Softco Supplier indemnified Softco Buyer for open source infringement claims against the software, Softco Supplier would be obligated to fully cover the losses arising out of any such claims. In this case, it would be irrelevant whether Softco Supplier had knowledge of the presence of open source, as liability is triggered by the occurrence of the contractually specified event (the presence of open source) rather than the misrepresentation made by Softco Supplier.
Another important distinction between reps and warranties and indemnities in our example is in relation to the duty imposed on Softco Buyer to mitigate its own loss. Common law imposes a requirement on parties relying on reps and warranties to take action to mitigate their own losses. In the context of open source reps and warranties, once a software buyer becomes aware that open source is embedded in the software, the buyer must take action to minimize its loss, for example by immediately replacing the code, or making the code freely available. In contrast, there is no parallel requirement for the beneficiaries of indemnities to mitigate their own losses.
Software Audit Can Minimize Exposure
Although open source reps and warranties and indemnities can provide software purchasers with remedies for losses arising from intellectual property infringement suits, they cannot shelter the buyer from being sued in the first place, or from experiencing the loss of goodwill in relation to litigation. As a result, reps and warranties and indemnities should not be regarded as due diligence replacements. Rather than taking the risk of open source surprises, software purchasers can engage resources (internal or external) that have the ability to analyze software to determine the presence of open source prior to executing the purchase.
A software audit entails code scanning aimed at detecting third-party and open source code. After the scanning stage, the purchaser is provided with an audit report detailing the identified code and associated license obligations. Performing such audits at the pre-purchase stage allows the buyer to understand whether the license obligations of the open source code are in line with the intellectual property policies of its organization, and if not, then the buyer is positioned to request the supplier to replace the code in question, or to engage an alternate supplier.
Software Audit in the Supply Chain
One of the contexts in which software audits are particularly beneficial is in the supply chain. Shortly after Cisco acquired Linksys in 2003, it was faced with an infringement suit relating to the use of GPL covered code in its router firmware. It turned out that the infringing chipset was provided to Linksys by Broadcom, which in turn outsourced the development to a third party. As a part of the settlement that was reached, Cisco was forced to make the infringing source code freely available on its website, appoint an open source compliance officer, and make a monetary contribution to the Free Software Foundation. As the Cisco case suggests, software audits can be a helpful tool at the pre-purchase stage when dealing with a supply chain context in which the immediate supplier has little control or knowledge over the code pedigree of the final product.
Review of Available Contractual Tools
Software purchasers have contractual tools (reps and warranties, and indemnities) at their disposal to protect their organizations from open source liabilities; however, it is important to remember that not all tools provide equal protection. While reps and warranties can provide the buyer with a remedy against misrepresentation, in instances where these assurances are qualified by the knowledge of the supplier, the buyer may be left without recourse. From this perspective, indemnities offer increased protection to software purchasers concerned about intellectual property infringement claims in relation to the use of open source.
Open source indemnities are also beneficial in comparison with reps and warranties, as they do not impose an obligation upon the party relying on them to take any action to minimize their own losses in the event of a breach.
Although open source reps and warranties and indemnities can provide software purchasers with means of recovery from intellectual property infringement claims, these contractual measures provide for an imperfect after-the-fact solution to a problem that lends itself well to management practices that would reduce the risk in the first place. Structured open source license management practices and software audits aimed at identifying third-party and open source code and ensuring open source compliance provide an optimal level of protection. These tools provide certainty regarding code pedigree, and enable software purchasers to avoid the negative consequences arising from intellectual property infringement suits.
Containers are not new, but renewed commitments to performance, flexibility, and agility have propelled them to the top of the agenda today. By working without the need for virtualization and its overhead, containers are seen as the perfect way to deploy apps and services across multiple clouds. Containers can handle anything from file types to operating systems and services, including microservices. What are microservices? Unlike what the name implies, microservices are not necessarily small,...
Sep. 3, 2015 06:00 AM EDT
With major technology companies and startups seriously embracing IoT strategies, now is the perfect time to attend @ThingsExpo in Silicon Valley. Learn what is going on, contribute to the discussions, and ensure that your enterprise is as "IoT-Ready" as it can be! Internet of @ThingsExpo, taking place Nov 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA, is co-located with 17th Cloud Expo and will feature technical sessions from a rock star conference faculty and the leading in...
Sep. 3, 2015 05:15 AM EDT Reads: 2,017
ElasticBox, the agile application delivery manager, announced freely available public boxes for the DevOps community. ElasticBox works with enterprises to help them deploy any application to any cloud. Public boxes are curated reference boxes that represent some of the most popular applications and tools for orchestrating deployments at scale. Boxes are an adaptive way to represent reusable infrastructure as components of code. Boxes contain scripts, variables, and metadata to automate proces...
Sep. 3, 2015 04:30 AM EDT
The 17th International Cloud Expo has announced that its Call for Papers is open. 17th International Cloud Expo, to be held November 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA, brings together Cloud Computing, APM, APIs, Microservices, Security, Big Data, Internet of Things, DevOps and WebRTC to one location. With cloud computing driving a higher percentage of enterprise IT budgets every year, it becomes increasingly important to plant your flag in this fast-expanding bu...
Sep. 3, 2015 02:30 AM EDT Reads: 1,684
The 5th International DevOps Summit, co-located with 17th International Cloud Expo – being held November 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA – announces that its Call for Papers is open. Born out of proven success in agile development, cloud computing, and process automation, DevOps is a macro trend you cannot afford to miss. From showcase success stories from early adopters and web-scale businesses, DevOps is expanding to organizations of all sizes, including the ...
Sep. 3, 2015 01:00 AM EDT Reads: 1,640
Early in my DevOps Journey, I was introduced to a book of great significance circulating within the Web Operations industry titled The Phoenix Project. (You can read our review of Gene’s book, if interested.) Written as a novel and loosely based on many of the same principles explored in The Goal, this book has been read and referenced by many who have adopted DevOps into their continuous improvement and software delivery processes around the world. As I began planning my travel schedule last...
Sep. 3, 2015 12:30 AM EDT Reads: 571
SYS-CON Events announced today that the "Second Containers & Microservices Expo" will take place November 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA. Containers and microservices have become topics of intense interest throughout the cloud developer and enterprise IT communities.
Sep. 2, 2015 11:45 PM EDT Reads: 641
DevOps Summit, taking place Nov 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA, is co-located with 17th Cloud Expo and will feature technical sessions from a rock star conference faculty and the leading industry players in the world. The widespread success of cloud computing is driving the DevOps revolution in enterprise IT. Now as never before, development teams must communicate and collaborate in a dynamic, 24/7/365 environment. There is no time to wait for long development...
Sep. 2, 2015 10:45 PM EDT Reads: 1,616
API-Driven Digital Healthcare Solution By @AkanaInc | @DevOpsSummit #API #IoT #DevOps #Microservices
Akana has announced the availability of the new Akana Healthcare Solution. The API-driven solution helps healthcare organizations accelerate their transition to being secure, digitally interoperable businesses. It leverages the Health Level Seven International Fast Healthcare Interoperability Resources (HL7 FHIR) standard to enable broader business use of medical data. Akana developed the Healthcare Solution in response to healthcare businesses that want to increase electronic, multi-device acce...
Sep. 2, 2015 10:00 PM EDT Reads: 311
Skeuomorphism usually means retaining existing design cues in something new that doesn’t actually need them. However, the concept of skeuomorphism can be thought of as relating more broadly to applying existing patterns to new technologies that, in fact, cry out for new approaches. In his session at DevOps Summit, Gordon Haff, Senior Cloud Strategy Marketing and Evangelism Manager at Red Hat, discussed why containers should be paired with new architectural practices such as microservices rathe...
Sep. 2, 2015 05:00 PM EDT Reads: 428
Introducing Containers & Microservices Bootcamp at @CloudExpo Silicon Valley | #Containers #Microservices
SYS-CON Events announced today the Containers & Microservices Bootcamp, being held November 3-4, 2015, in conjunction with 17th Cloud Expo, @ThingsExpo, and @DevOpsSummit at the Santa Clara Convention Center in Santa Clara, CA. This is your chance to get started with the latest technology in the industry. Combined with real-world scenarios and use cases, the Containers and Microservices Bootcamp, led by Janakiram MSV, a Microsoft Regional Director, will include presentations as well as hands-on...
Sep. 2, 2015 04:45 PM EDT Reads: 403
SYS-CON Events announced today that Pythian, a global IT services company specializing in helping companies leverage disruptive technologies to optimize revenue-generating systems, has been named “Bronze Sponsor” of SYS-CON's 17th Cloud Expo, which will take place on November 3–5, 2015, at the Santa Clara Convention Center in Santa Clara, CA. Founded in 1997, Pythian is a global IT services company that helps companies compete by adopting disruptive technologies such as cloud, Big Data, advance...
Sep. 2, 2015 04:15 PM EDT Reads: 361
17th Cloud Expo, taking place Nov 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA, will feature technical sessions from a rock star conference faculty and the leading industry players in the world. Cloud computing is now being embraced by a majority of enterprises of all sizes. Yesterday's debate about public vs. private has transformed into the reality of hybrid cloud: a recent survey shows that 74% of enterprises have a hybrid cloud strategy. Meanwhile, 94% of enterprises ar...
Sep. 2, 2015 04:00 PM EDT Reads: 1,591
DevOps has traditionally played important roles in development and IT operations, but the practice is quickly becoming core to other business functions such as customer success, business intelligence, and marketing analytics. Modern marketers today are driven by data and rely on many different analytics tools. They need DevOps engineers in general and server log data specifically to do their jobs well. Here’s why: Server log files contain the only data that is completely full and accurate in th...
Sep. 2, 2015 03:30 PM EDT Reads: 420
Culture is the most important ingredient of DevOps. The challenge for most organizations is defining and communicating a vision of beneficial DevOps culture for their organizations, and then facilitating the changes needed to achieve that. Often this comes down to an ability to provide true leadership. As a CIO, are your direct reports IT managers or are they IT leaders? The hard truth is that many IT managers have risen through the ranks based on their technical skills, not their leadership ab...
Sep. 2, 2015 03:00 PM EDT Reads: 447
Several years ago, I was a developer in a travel reservation aggregator. Our mission was to pull flight and hotel data from a bunch of cryptic reservation platforms, and provide it to other companies via an API library - for a fee. That was before companies like Expedia standardized such things. We started with simple methods like getFlightLeg() or addPassengerName(), each performing a small, well-understood function. But our customers wanted bigger, more encompassing services that would "do ...
Sep. 2, 2015 03:00 PM EDT Reads: 294
Whether you like it or not, DevOps is on track for a remarkable alliance with security. The SEC didn’t approve the merger. And your boss hasn’t heard anything about it. Yet, this unruly triumvirate will soon dominate and deliver DevSecOps faster, cheaper, better, and on an unprecedented scale. In his session at DevOps Summit, Frank Bunger, VP of Customer Success at ScriptRock, will discuss how this cathartic moment will propel the DevOps movement from such stuff as dreams are made on to a prac...
Sep. 2, 2015 02:00 PM EDT Reads: 254
SYS-CON Events announced today that HPM Networks will exhibit at the 17th International Cloud Expo®, which will take place on November 3–5, 2015, at the Santa Clara Convention Center in Santa Clara, CA. For 20 years, HPM Networks has been integrating technology solutions that solve complex business challenges. HPM Networks has designed solutions for both SMB and enterprise customers throughout the San Francisco Bay Area.
Sep. 2, 2015 01:30 PM EDT Reads: 949
In his session at 17th Cloud Expo, Ernest Mueller, Product Manager at Idera, will explain the best practices and lessons learned for tracking and optimizing costs while delivering a cloud-hosted service. He will describe a DevOps approach where the applications and systems work together to track usage, model costs in a granular fashion, and make smart decisions at runtime to minimize costs. The trickier parts covered include triggering off the right metrics; balancing resilience and redundancy ...
Sep. 2, 2015 01:00 PM EDT Reads: 273
The pricing of tools or licenses for log aggregation can have a significant effect on organizational culture and the collaboration between Dev and Ops teams. Modern tools for log aggregation (of which Logentries is one example) can be hugely enabling for DevOps approaches to building and operating business-critical software systems. However, the pricing of an aggregated logging solution can affect the adoption of modern logging techniques, as well as organizational capabilities and cross-team ...
Sep. 2, 2015 12:30 PM EDT Reads: 427