The convergence of technologies in autonomous vehicles is set to spur more acceptance of open source use across the automotive industry and drive car companies to adopt better freedom-to-operate processes, according to car manufacturers and their suppliers.
Senior IP counsel at Volvo Cars, Lotus, u-Blox and elsewhere say car companies have traditionally stipulated in supplier agreements that components should be free from open source technologies, for fear that any third-party rights attached to those technologies could taint their products – among other things.
They explain that it is a common and inaccurate assumption that open source software is always free to use. In reality, these technologies are governed by a spectrum of licences: from copyleft ones that require inventors to put modifications back into the open source pool, to permissive licences such as Apache 2.0 that allow modifications to be commercialised.
There is also the risk that companies could unknowingly use patented technology that has been ‘borrowed’ and published on open source forums.
“The freedom of open source technologies is the same kind as that of the Marlboro Man,” says Kai Brandt, head of electronics patents at Audi in Munich. “These things pretend to live in the wild, but practically they are bound to the next cigarette vending machine.”
But despite these fears, car companies are likely to become more lax on open source use in their supplier contracts – if they have not started to already – because of pressure from suppliers to use these technologies and their arguments that they spur innovation.
There is also an argument that the increasing importance of open source tech to the software space makes it likely that restrictive licences enter the supply chain, whether car companies demand that no such technology should be used or not.
By relaxing these restrictions, sources argue, car companies are able to collaborate with suppliers more effectively to ensure that only permissive open source tech is used in the components they use.
Volvo Cars is one such car company that has already started to loosen its restrictions on open source use. Laura Gisler, IP counsel at the organisation in Sweden, says the electrification of cars and autonomous vehicles has driven this change in attitude to a large degree.
“The rapid increase in automotive software has necessitated the use of open source in the automotive industry,” she says. “That increase has also led to the need for a more thoughtful and collaborative approach to open source – to understand it and even contribute to the open source space, when previously it was not a part of our industry or our world.”
James Bradley, head of legal at UK-based car maker Lotus, adds that his company has yet to loosen open source restrictions in supplier agreements to the same extent as Volvo Cars, but that the company and the industry as a whole is likely to in the near future.
“Open source is a simple and straightforward way to put cars on the road at a sensible price,” he says. “If open source is as low risk as you can get – there is risk in everything after all – and you have mitigated that risk, then fine.”
Kent Baker, head of IP licensing at semiconductor and software supplier u-Blox in San Diego, adds that car makers have increased their knowledge of open source and licensing substantially over the past few years, which has made them more comfortable with allowing open source tech to be used.
In his experience, most car companies still vet the components they’re supplied heavily, but no longer bar the use of open source completely. That relaxation is good for u-Blox, he says, because while the company does not use open source code actively, it has suppliers that do.
The new situation also means that u-Blox could take advantage of open source tech in the future.
“Many of our products have already been designed and set and there is no point going back to incorporate open source tech. Whether we can use open source in the future depends on our relationship with the supplier that sells the completed module to the end user.”
He adds that if the car company tells that supplier they cannot use open source, neither can his company.
The pressure on car companies from suppliers desperate to leverage the opportunities of the open source space is hardly surprising when news on investments made in open source automotive software emerges regularly.
Earlier this month, for example, tech news website Venture Beat reported that Tier IV, a Japan-based driverless car software maintainer and provider, raised $100 million to develop open source software for driverless cars.
‘Back door’ checks
With the loosening of restrictions surrounding open source use to take advantage of the open source space, however, comes the need for new processes to mitigate the risk of unknowingly incorporating technologies that have been ‘borrowed’ or have restrictive licences attached.
Not only do car companies need to check for third-party rights, they also need to ensure that any of the code used does not have a ‘back door’ built into it that would allow someone to hack into a product.
Gisler at Volvo Cars points out that car companies should assess risk anyway to ensure that components do not taint end products, given the increasing popularity of open source technology, even if they are not yet relaxing their supplier contracts.
“Even if the legal obligation falls on suppliers two or three steps back from us, the practical reality is that the end users want to own the risk management assessment, as the impact of open source decisions in the supply chain will affect our brand,” she notes.
But with the loosening of contractual terms, it is more important for car companies to work with suppliers to ensure that open source technologies are truly free from third-party rights or are governed by permissive licences.
Gisler says car companies must maintain an open dialogue with these suppliers to discuss matters such as the decentralisation of responsibility when it comes to checking open source technologies. They can also put in measures to inspect every product so the business knows what is going into the car and be prepared to raise the issue with suppliers if there is a problem.
Some car companies that are starting to relax their open source restrictions are looking to incorporate open source safety provisions onto projects they have already committed to retroactively.
Bradley at Lotus adds that his firm has taken on a board of skilled programmers that similarly break down everything they get from software suppliers to see if open source tech has been used.
“We will make sure that any use we find is acceptable and does not represent any risk to ourselves,” he says. “We must make sure that there are never any surprises that one of our products has been built with open source tech.
“There are always going to be difficulties as things change, but hopefully if you have sensible terms with suppliers and it has been clear as to what they have given and you have consented to the open source or you have not, then okay,” he says.
He adds that measures would need to be established for scenarios where a supplier had used open source for a product that the car company said should be free for those technologies, and for where the car company has been a little vague regarding open source restrictions.
“If the company has been vague and the product does contain open source, at that point you can sit down and discuss whether it works, whether it causes a problem and, if there is a problem, what do we do to solve it.”
Car manufacturers can also take steps to educate their staff about the risks of open source use.
“Educating our buyers, developers and representative organisations on the idea that controls are necessary in these products is one of the most effective ways to manage risk,” says Gisler. “That enables the right people to make case-by-case decisions – because the IP team cannot be the only group managing this risk.”
Car companies that have not already opened their doors to open source use may do so soon. The sheer investment being put into open source projects and the possibilities the technologies bring may ultimately outshine the risks of using open source – so long as car companies and their suppliers are careful to ensure third-party rights do not drive them off a cliff.
