Embedded sys­tems and open source software

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.