‘To The Left, To The Left: All The IP You ‘Own’ In The Box To The (Copy)Left’: Open Source Software Issues In M&A Transactions
By: Anthony Lloyd, Alex Horder & Edmond Lau (Technology’s Legal Edge – DLA Piper)
From the browser on a smartphone, to word processing software, to an entire operating system, Open Source Software (Open Source) is so ubiquitous that you’re likely using it without even realising. So, what is it and why do we care about it in the context of an M&A transaction?
As opposed to proprietary or ‘closed source’ software, where the source code and usage rights are privately owned and controlled, Open Source is a form of publicly-accessible software source code that is subject to ‘open source’ licence conditions, generally allowing the licensee to use, view, modify, and redistribute the Open Source’s source code, at no cost. Open Source’s ease of access, flexibility and constant updates have made it extremely popular in software development, as it can be used to fast-track development of software and expand the functionality and capability of software quickly and inexpensively.
However, as a quid pro quo, Open Source licenses also require any development work done on that Open Source to be made available on an open source basis, and that requirement can also extend to and ‘infect’ other proprietary, previously ‘closed source’, software.
In the context of an M&A transaction where a key asset the subject of that transaction is the seller’s proprietary software, Open Source’s ubiquity means that Open Source will likely form part of that software. Organisations looking to undertake such transactions, on both the ‘buy’ and ‘sell’ side, should therefore be careful to understand the extent to which Open Source is being used in key software assets, as well as the risks and issues that generally arise due to its use…
Featured News
Japan’s Nippon Steel Eyes Year-End Close on $15B US Steel Deal Amid Political Uncertainty
Nov 7, 2024 by
CPI
Canada Orders Dissolution of TikTok’s Business Amid National Security Concerns
Nov 7, 2024 by
CPI
India Raids Amazon, Flipkart Seller Offices in Foreign Investment Probe
Nov 7, 2024 by
CPI
Canada’s Competition Bureau Seeks Public Feedback on Updated Merger Guidelines
Nov 7, 2024 by
CPI
FTC Adopts Stricter Reporting Rules for Mergers, Delays Expected in 2025
Nov 7, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Remedies Revisited
Oct 30, 2024 by
CPI
Fixing the Fix: Updating Policy on Merger Remedies
Oct 30, 2024 by
CPI
Methodology Matters: The 2017 FTC Remedies Study
Oct 30, 2024 by
CPI
U.S. v. AT&T: Five Lessons for Vertical Merger Enforcement
Oct 30, 2024 by
CPI
The Search for Antitrust Remedies in Tech Leads Beyond Antitrust
Oct 30, 2024 by
CPI