Using Open Source Software in Your Commercial Product: Managing Compliance and IP Risk
Takeaway: While using open-source software can accelerate development, you must rigorously manage its use in your commercial product by vetting licenses for compliance and continuously scanning for security vulnerabilities to avoid introducing major legal and security risks.
Open-source software (OSS) is the bedrock of modern software development. It allows your engineering team to move with incredible speed, building on top of pre-existing, community-vetted libraries and frameworks instead of reinventing the wheel. For an A&D startup, leveraging OSS can be a powerful accelerator. However, in the secure and regulated environment of defense contracting, using open source comes with a specific and significant set of compliance and security risks.
You cannot simply allow your developers to freely download and incorporate OSS into your products. You must have a formal, documented process for approving, tracking, and scanning all open-source components to ensure they do not introduce legal or security vulnerabilities into your sensitive systems.
The Legal Risk: License Compliance
Open-source software is not "free" in the sense of having no restrictions. Every OSS component is governed by a specific license, and there are hundreds of different types. These licenses dictate how you are allowed to use, modify, and distribute the software.
"Permissive" Licenses (e.g., MIT, Apache): These licenses are generally low-risk. They allow you to use the software freely in your commercial products with very few requirements, other than perhaps providing attribution.
"Copyleft" Licenses (e.g., GPL, LGPL): These licenses are a major risk for a company that wants to maintain a proprietary, closed-source product. A "strong copyleft" license like the GPL requires that if you use any GPL-licensed code in your software, your entire software product must also be made open source and licensed under the GPL. Inadvertently using a GPL component in your proprietary codebase can be a catastrophic legal and business failure.
The Solution: You must have a formal process for vetting the license of every OSS component before it is incorporated into your code. This often involves using automated software composition analysis (SCA) tools that can scan your codebase and identify all the open-source libraries and their associated licenses.
The Security Risk: Unpatched Vulnerabilities
Open-source libraries, like any software, can have security bugs. Because the code is public, vulnerabilities are often discovered and published. If you are using an older, unpatched version of an open-source library, your product may contain a known vulnerability that an attacker can easily exploit.
The Solution: Your development process must include continuous vulnerability scanning.
Software Bill of Materials (SBOM): You must maintain a complete inventory of every OSS component and its specific version used in your product. This is your SBOM.
Vulnerability Scanning: You must use automated tools to continuously scan your SBOM against public databases of known vulnerabilities (like the National Vulnerability Database - NVD).
Patch Management: When a vulnerability is discovered in a component you are using, you must have a formal process for updating to a new, patched version of that component.
Using open-source software is a necessity for rapid development, but it requires discipline. By implementing a robust program for license compliance and vulnerability management, you can safely leverage the power of the open-source community without compromising the security and integrity of your proprietary A&D systems.
Disclaimer: This post is for general informational purposes only and does not constitute legal, tax, or financial advice. Reading or relying on this content does not create an attorney–client relationship. Every startup’s situation is unique, and you should consult qualified legal or tax professionals before making decisions that may affect your business.