License risks and challenges
Whether in smart phones or WLAN routers, in cars or in production machinery, use of open source software (OSS) in embedded systems is on the rise. However, the use and distribution of “free software” involves license obligations, even if the software is embedded within a company’s own products. The question as to which specific requirements apply in accordance with the terms of license for the use of OSS in embedded systems, and how these requirements are to be implemented in practice, is one which poses legal challenges for companies. This question should always be considered within the overall context of OSS compliance.
Reproduction of the terms of the license
Many open source software licenses require users to include a copy of the license text when distributing the licensed software. This requirement alone creates particular challenges for companies using embedded systems. If many different OSS components are used, each of them subject to a different license, dissemination in paper form may be impossible due to the sheer size of the documents. As an alternative, companies could conserve resources by displaying the text of the license on a device, provided the device has a display. However, there is some dispute about whether merely displaying the text of the license is permissible from the viewpoint of license law.
Problem: display of the copyright notice
Including the relevant licenses for an embedded system is often difficult in practice due to the absence of standards, and the work often needs to be done by hand. In addition, some licenses require inclusion of the copyright or an exclusion of liability. The formal requirements for the copyright notice are stricter than the requirements for inclusion of the terms of the license. In cases involving embedded systems, users often cannot access the file system in order to read the copyright notices. This question depends on the interpretation of the license text. For example, the text of the GNU General Public Licence Version 3 speaks against efforts to adopt a “more liberal” interpretation, under which the requirements for displaying the copyright notice would be similar to those for inclusion of the terms of the license. It states as follows:
“You may convey verbatim copies of the Program’s source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice […].”
Risks and compliance
Companies using OSS in embedded systems which violate the terms of the license face the threat of cease-and-desist letters from right holders, as well as claims for desistance and damages. Right holders may also demand the destruction or recall of embedded systems which violate copyrights. Companies should therefore take care when using OSS in embedded systems and ensure that they are complying with the terms of the license. This requires a compliance management system. In particular, companies should consider the problem of how to display the copyright notice as part of the product design process. More information about open source compliance can be found in our one-pager on open source software: how companies can avoid license risks.
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