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43 Tex. J. Bus. L. 561 (2009)
Open Source and the Secrets of Commando Due Diligence

handle is hein.journals/txjbus43 and id is 585 raw text is: OPEN SOURCE AND THE SECRETS OF COMMANDO DUE DILIGENCE Heather Meeker* I. INTRODUCTION .............................................561 II. LICENSING AND DEVELOPMENT MODELS, AND EVOLVING PERCEPTIONS OF RISK ................................. .....562 A. Focus on Compliance Risk.......................... .........564 B. The Evolution of the Species ........................... ......564 C. The Handbook of the Commando-Infiltration Techniques ...................566 D. The Handbook of the Commando-Survival Skills...... ..........567 1. Remove ..................................................567 2. Reengineer ...................................................568 3. Relicense.................................................568 4. Replace ...............................................569 5. Charge! ...............................................569 I. INTRODUCTION Now that open source software has been in the mainstream for at least a decade, most in- tellectual property licensing attorneys are familiar with the process of performing due diligence and audits for open source software. Because the legal profession is catching up with the tech- nical world in its understanding of open source, it is time for lawyers to take the next step, to learn to solve problems unearthed in open source due diligence in a practical way. The conventional wisdom is that lawyers conducting due diligence find problems, but do not solve them. Open source due diligence, however, is an opportunity for lawyers to evolve from problem seekers into problem solvers. In fact, lawyers are often in the good position to suggest solutions to open source problems. Those who regularly work on acquisition transac- tions quickly learn that the same open source problems recur from transaction to transaction. Taking the next step requires familiarity with the open source software landscape in addition to open source licensing concepts. Fortunately, a little effort can go a long way, because the most popular open source software is in near ubiquitous use in the technology industry. Historically, the problem with open source in mergers and acquisitions was that lawyers knew how to write open source representations and warranties that generated extensive disclo- sure, but did not know how to react to information once it was disclosed. This was partially because lawyers were not familiar with the open source landscape. Therefore, a disclosure that * Heather Meeker is a Co-Managing Shareholder with the law firm of Greenberg Traurig in East Palo Alto, CA. She is the Chair of the firm's IP/IT Licensing and Transactions Group, and is experienced in the areas of Intellec- tual Property and Technology, Media & Telecommunications, and Nanotechnology. She also maintains the website www.heathermeeker.com, a source for Open Source Software Licensing FAQ.

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