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New Tool Checks Legality Of Open-Source Software

While it's never been a smart business move to use someone else's intellectual property without paying for it, the risk of doing this without realizing it has never been greater. Open-source software, led by programs such as the Linux operating system and the Apache Web server, has grown in popularity during the past several years from small departmental implementations to become more deeply entrenched in business IT environments.

Although the uses and legalities of open-source software are fairly new to most companies, ignorance is not likely to hold water as a defense. This has led to the emergence of new tools and services designed to help companies identify the lineage of the code they download for free from the Internet or acquire from another business through more traditional corporate transactions.

Following up on the protexIP/development software and service it introduced in May, Black Duck Software Inc. on Monday will formally introduce protexIP/license management. Whereas protexIP/development is designed to help developers identify instances of open-source software and any licensing conflicts, the new protexIP/license management offering is primarily for use by lawyers and corporate legal teams. ProtexIP/license management lets attorneys identify any open-source licenses that affect their clients' code or code their clients seek to acquire.

When executives consider acquiring a company or a company's assets, they want to be sure there are no hidden legal land mines, says David Byer, a partner in the patent and intellectual-property practice group at Boston law firm Testa, Hurwitz & Thibeault LLP. "We've seen complete deals go off the table because the acquirer didn't want to take the risk," he says. Another scenario has been for a seller's assets to be devalued if there are questions about legal ownership of those assets.

The growing popularity of open source, which can be downloaded freely from the Web without going through corporate procurement channels, has increased the legal risks associated with software acquisition and usage. To ensure that its legal team can help its clients mitigate this risk, Testa, Hurwitz & Thibeault is testing protexIP/license management along with protexIP/development.

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