Dedicated GPL defender Welte, who owns copyrights on pieces of the Linux firewall code, has used that copyright to encourage (or, through suits brought in German courts, force) more than 100 companies either to remove infringing code or release their corporate source code to the public. The companies involved range from smaller firms to corporate giants, such as Asus, Belkin, Fujitsu Siemens and others. Welte’s plans to create a nonprofit organization in Germany to aggressively pursue such copyright infringement may help accelerate his efforts.

“In our view, it is necessary to raise public awareness and to make cases public,” Welte says. But, he insists, “this is not a witch hunt or some kind of religious battle. It’s just making corporate users play by the rules when they have, for whatever reason, overlooked them.”

Even given all this, the odds that you’ll get caught may still be slim. However, as open-source software finds its way into ever-more-critical systems inside your company, the risk to your company if you are caught has increased dramatically.

Talk to the Lawyers

What unusual patent provisions exist in the Mozilla Public License?

How far does the GPL go to protect derivative works?

Heck, what is a derivative work?

Like it or not, attorneys—not developers—are in the best position to answer questions like these, particularly as they pertain to your business or to your approach to using open-source software. Getting your legal department involved early is the best way to ensure against running into problems in the future. The key is to make it clear up front that open source is a critical piece of your development plans so that the legal folks will take that into account.

It might seem easier to simply avoid the hard questions, but doing so only increases your risk. “It really is incumbent on CIOs and other IT managers to understand that this is a real issue,” warns Mark Radcliffe, a partner at DLA Piper Rudnick Gray Cary and chairman of a committee working to develop GPL 3.

Just because you bring in the lawyers, however, doesn’t mean you’ll get decisive answers to all your licensing questions. Open-source case law isn’t a well-trodden path. “It would be easier to advise clients if there was more case law in the area,” admits Ira Heffan, an associate at Goodwin Procter who in 1997 wrote a law review article that argued that the GNU General Public License was enforceable. He notes, however, that there have been efforts to reach some consensus on open-source matters, including a so-called moot court held in early 2006 at the University of Washington that produced legal briefs and helped establish dialogues with some federal circuit judges on various open-source matters.