George Gardiner

A couple of weeks ago, while working at a large financial institution, I was asked by a programmer if he could make some software he had developed available to the programming community under one of the open-source licences. My immediate reaction was positive - we benefit from open-source software, so we should be willing to give something back.

Then, as is often the case, I started to think through the potential problems. When an employee writes any code the copyright automatically vests in the employer.

That led me to my first question. Would the company grant the licence or should the individual do so (after the company had assigned the rights to the programmer)? If the licence is granted by the company then it will benefit from the goodwill and publicity generated by this. However, the bigger the business the more bureaucracy and complications there generally are. It would be much simpler for a company to just let the programmer make the decision and do all the leg work.

If there are errors in the code would the company, as the licensor, be legally liable for negligence (notwithstanding the limitation on liability in the General Public Licence, for example)? For lawsuits, a big financial institution is a much nicer target than an individual programmer, after all.

Next, do the lawyers have time to evaluate the risks? If so, whose budget pays for their time? Which open-source licence would be the most appropriate in the circumstances? Again, this requires some fairly sophisticated legal input because there are various types of licence. If the rights are assigned to the programmer, how can the business be sure that it will have the right to continue using the software for its own benefit?

Is the software proprietary or confidential to the business? Who decides this? Is that a technical decision or a commercial decision? Everyone has an opinion, but not everyone has the appropriate authority to grant the necessary licences or transfer the rights to the programmer.

Has a lender taken security over the intellectual property rights of the business to secure a loan and would the release of the code put the company in breach of its covenants not to dispose of its assets?

Those were just some of the issues and complications I came up with. In my case what started with the best of intentions quickly became bogged down by incomprehension, lack of time, cost considerations, and the perceived relative unimportance of the request.

I had to find someone who understood the issues and who could make a decision. Unfortunately in my case the decision sits somewhere between human resources, compliance, the lawyers and the IT managers. And they are all very busy people.

I am no closer to getting an answer, but I am persevering.

Like this story? Spread the news by clicking below:

 del.icio.us     Digg this     reddit!