Would you invest in this company?

Anti-virus computer software company MacAfee has recently warned investors that they enter into legally-binding agreements without understanding those agreements.

Naturally McAfee didn't quite put it that way. Instead, they warned investors that their ability to "commercialise products" based on open-source software -- that is, software which other people have created and published under an open-source licence -- might be at risk if they are forced to obey the licence, since they're not sure what their obligations will be.

Well, here's a thought. Maybe they could read the licence and find out? There are poor quality licences that are ambiguous and incoherent, but the GPL is not one of them. And despite McAfee's wishful thinking that the GPL has never been tested in court, it has, successfully. The reason the GPL rarely makes it to court is because the infringers generally settle out of court and promise to obey the GPL.

It really shouldn't be that difficult for McAfee and others like them. If you want to use open source software in your products, then you have to follow the rules in the licence you have to use that software. That's no different from closed-source licences you might get from Microsoft or any other software company. If McAfee warned investors that they might not be able to use Microsoft's software in their products without obeying the agreement they have with Microsoft, everybody would laugh at them. But put open source in there, and suddenly folks are bewildered -- do they have to obey this agreement or not?

I'm not the only one wandering if McAfee's comments indicate that they are infringing the GPL. Zdnet's Dana Blankenhorn also suggests they're asking to be sued.

McAfee also raises the specter of open source software infringing other copyrights or patents. Naturally it is difficult to tell whether open source software infringes, but that's because recognising infringement is very difficult. Every sizable software project will invariably infringe patents, because the software patent system is seriously broken. Whether software infringes patents has nothing to do with whether you can see the source code or not. It isn't even a barrier to whether patent holders will find out about the infringement. If McAfee were honest, they'd warn their investors that to the extent they licence closed-source software from third parties, they are at greater risk because they have less ability to recognise patent infringement.