70-90% of all software codebases now consist of open source software code, and the use, incorporation, modification and re-distribution of open source code - which can involve over 100,000 different open source components in a single codebase - presents unique legal and compliance challenges.
On the flipside, open source drives innovation and economic development to an astonishing degree. It’s no coincidence that so many of the major developments in AI over the past couple of years are based on and marketed as open technologies.
Lawyers at Bristows have been in the forefront of open source software law since its inception. Members of the open source team have been instrumental in drafting key industry licences like the CERN Open Hardware Licence and the Eclipse Public License 2.0, have advised on transactions such as the acquisition of Centos by Red Hat and act for some of the world’s leading Linux distributions. As well as running major M&A transactions involving open source, we are also trusted as open source subject-matter experts to co-counsel on global software transactions alongside companies’ in house teams and international advisers.
Members of the team advise cutting-edge startups, NGOs, established global tech giants, governments and supra-national organisations.
We’re thought leaders, combining deep industry knowledge in this sector with an impressive global programme of speaking engagements and keynotes at major conferences in Japan (Linux Foundation Open Compliance Summit). China (Open Atom Foundation and China Open Source Conference), Europe (FOSDEM, CHAOSS Con, FOSS Backstage, Linux Foundation, LLW, and OpenUK State of Open Conference) and North America (OSHWA Conference). We co-authored Open Source Law Policy and Practice (Oxford University Press) and our lawyers have published numerous open source works through publishers such as Springer, Cambridge University Press and Edinburgh University Press, as well as academic papers and research collaborations with teams at Queen Mary, University of London, University of Skövde, Sweden, and Oxford Brookes University.
Open source is all about reducing friction: it gives developers freedom to develop, and the business team the ability to get great products to market as swiftly and effectively as possible. Our job is to support that, by advising pragmatically on risk balanced with opportunity. Lawyers have a reputation for adding friction to business aims and aspirations. We’re acutely aware that this is in stark opposition to the undoubted benefits that open source brings, and we pride ourselves on creative solutions to minimise that friction.
Practical open source advice requires an understanding of law and regulation, and well as a deep understanding of underlying technology and development practices. For example, code which runs on the front-end can be non-compliant and remediation may be as simple as moving that same code to the server. Complex interactions of code through containerisation compound these issues. Team members work seamlessly with dev-ops engineers who complement our lawyers’ skills with deep, up-the-minute understanding of technologies like Kubernetes, vibe-coding and software defined infrastructure.
Open source is specifically addressed by EU legislation such as the AI Act and the Cyber Resilience Act, and we can help clients assess their obligations around the consumption and deployment of open source code in compliance with that legislation, including the production and distribution of software bills of materials (SBOMs).
M&A transactions in the tech sector will almost always involve open source, and we help clients navigate the unique risks and opportunities that open source code presents. We are familiar with the output of SCA tools such as Black Duck, Flexera, FOSSID or work with specialist open source consultants to generate reports and DD analyses which form a key part of the risk assessment, for use both in negotiating the core deal documents themselves, and facilitating the use of warranties indemnities deal insurance.
Pro-bono work from team members has included advising on open sourcing the content on the United Nations SURGHub project (a platform providing surgical and clinical expertise through textual, audio and video content to medics in developing countries and beyond). Members of the team have supported the United Nations Technology and Innovation Lab and its projects, and have co-authored an open source toolkit through WIPO aimed at promoting sustainable economic development through the deployment use of open source software.
