Open source software (OSS) has become an indispensable part of software development. The development of modern cloud systems and embedded and mobile computing technologies relies heavily on solutions containing open source code. Free software is also an important component of so-called embedded systems. These are computer systems integrated into devices, tools and machines and performing special applications within these devices, tools and machines. Such embedded systems can be found in automation and automotive technology, production machinery, telecommunications systems, and household appliances.
The licensing obligations impose particular challenges both on the manufacturers of these embedded systems and on the manufacturers who integrate such software components into their end products. The first part of this article deals with the practical issues related to the implementation of these licensing obligations.
Complying with licensing obligations for embedded systems can be a challenge!
Embedded systems that include free software are subject to their own rules. On the one hand, the user, that is to say the manufacturer of such a system, the distributor and even the end user are granted extended rights which they do not receive with a conventional proprietary product. On the other hand, there are also license obligations for which there is no equivalent in the proprietary world.
The distribution of open source software triggers licensing obligations!
The manufacturer of an on-board system and the manufacturer of the end device containing such on-board systems must first and foremost comply with the relevant licensing obligations triggered by the distribution. This is particularly complex because it usually involves several hundred components under different OSS licenses. Even in the relationship between the manufacturer of an on-board system and its customer, (contractual) compliance is not easy. At the latest when the final product is distributed to the buyer, it becomes clear that the content of the current OSS licenses is not designed for this constellation and meeting the obligations is almost impractical if you follow the wording of the OSS licenses.
Consolidate the license texts
Many manufacturers cannot answer the question of what open source software is contained in a software application or in an in-vehicle system. Many on-board systems easily contain several hundred thousand files, between which are hidden hundreds of license texts, available in a wide variety of formats.
There are scanners that search the source code for license texts or individual copyright notices. However, they do not work without errors, especially due to the lack of standards on the developer side regarding OSS licensing. Anyone who wants to make sure that all the license texts have been registered is therefore largely dependent on manual work.
Delivery of license texts
Once the license texts have been consolidated, the on-board system manufacturer and the terminal manufacturer need to think about how the license texts can be made available in a transparent and convenient way. The procedure must also be feasible with an economically justifiable effort. The following variants are under discussion:
- Delivery of a classic hard copy,
- Filing in electronic format on computer support,
- Provision of license texts on a web page (disclosure) of the manufacturer,
- Provision of the license texts via a web server to which the respective product is connected,
- Installation on the product itself and made available via a display.
The practical implementation issues that can arise when using OSS in household appliances, vehicles, and other items were not on anyone’s mind when the OSS licenses still in use today were first introduced. created.
Alternatives to a paper submission
The legal literature considers the transfer of license texts to paper to be license-compliant. For manufacturers of on-board systems and even more terminals, this procedure is not easily practicable.
An alternative may be to display the text of the license on the screen of the on-board system or of the end device – if said device has such a screen. This solution is mainly found on smartphones and tablets. The smaller the screen, the greater the risk of a confused display. It may no longer be possible to meet the goal of this licensing requirement if the user has to scroll for minutes and finds himself without an overview of which OSS license belongs to which open source component.
A presentation of the licenses on a website should conform to the licenses at least with regard to on-board systems and terminals without display. After all, the purpose of the obligation is to inform the end user of their rights with regard to the corresponding software component.
Liability and warranty exclusions
Most OSS licenses provide almost complete exclusion of liability and warranty for the licensed components. Under German law, a complete exclusion of liability and warranty cannot be effectively agreed, even in the case of a free license grant (considered as a gift). Thus, the donor is regularly responsible only for fraud and gross negligence; with regard to material defects, warranty claims are regularly limited to cases of fraudulent intent.
Manufacturers and buyers of embedded systems installed in terminals must address the issue of open source in their contractual agreements. This also applies to those for whom the software has not been a problem to date. Without the provision of full information on the OSS components used, the described license obligations cannot be fulfilled.