Open-Source Software In M&A Transactions

Key takeaways

• Open-source software is indispensable in many companies today, but can lead to various legal risks in commercial distribution or M&A transactions.
• Copyleft clauses can restrict the proprietary use of software and jeopardise its commercial usability.
• A thorough review of open-source software licences is essential to avoid infringements and financial risks.
• Finally, providers of high-risk AI systems (among others) must include the use of open-source software in their risk management processes if their products fall within the scope of the new EU regulation on artificial intelligence.

Introduction

Open-source software (hereinafter referred to as "OSS") is software whose source code is public and can be viewed, modified and used by third parties (the technical term "open source" indicates an "open" or "public" source). The origins of OSS date back to the 60s and 70s. Today, OSS is an indispensable part of business processes. According to