Open source under pressure: Challenges of compliance in a regulated world

The collaborative spirit of OSS thrives on the principle of free contribution - where developers worldwide create, share, and improve software without strict hierarchical structures. Projects like Linux, Apache, and Kubernetes illustrate how OSS has become the backbone of modern technology. However, the CRA and PLD present a stark contrast to this ethos.

Open Source Software (OSS) has long stood as a beacon of collaboration and innovation in the digital era. From powering enterprise systems to fostering grassroots technology movements, OSS embodies the principles of openness, transparency, and shared progress. However, recent shifts in the European Union's regulatory landscape pose significant challenges to this ecosystem. The study titled “The End of Open Source? Regulating Open Source Under the Cyber Resilience Act and the New Product Liability Directive”, authored by Liane Colonna and published in Computer Law & Security Review (January 2025), examines the far-reaching implications of the EU's Cyber Resilience Act (CRA) and Product Liability Directive (PLD) on OSS development and governance.

The CRA and PLD introduce stringent cybersecurity and liability requirements for software products, including OSS components. While these measures aim to enhance consumer protection and security, they inadvertently challenge the principles that underpin the OSS model, particularly its decentralized and collaborative nature. This article explores the tension between regulatory goals and the OSS community’s ethos, delving into the potential consequences for innovation, accountability, and equity.

Open Source Software meets regulatory complexity

The collaborative spirit of OSS thrives on the principle of free contribution - where developers worldwide create, share, and improve software without strict hierarchical structures. Projects like Linux, Apache, and Kubernetes illustrate how OSS has become the backbone of modern technology. However, the CRA and PLD present a stark contrast to this ethos.

The CRA establishes horizontal cybersecurity requirements for all products with digital elements, including software components. It mandates strict compliance with security-by-design principles, requiring developers to address vulnerabilities and document the security of their systems throughout a product's lifecycle. Similarly, the PLD extends liability for software-related harms, making developers and manufacturers accountable for defects and cybersecurity flaws. These frameworks, while aimed at consumer safety and trust, introduce complexities that could reshape the OSS landscape fundamentally.

Impact of CRA and PLD on OSS Development

Blurred Lines Between Commercial and Non-Commercial OSS

The CRA and PLD attempt to differentiate between non-commercial and commercial OSS activities. Non-commercial OSS developers, such as hobbyists and small contributors, are exempt from direct compliance obligations. However, when OSS is integrated into commercial products or monetized, it falls within the scope of these regulations. This distinction creates a gray area, as many OSS projects evolve organically from volunteer-driven initiatives into commercial endeavors. This shift in regulatory burden risks discouraging contributions or stalling projects at critical stages of growth.

Disproportionate Impact on Smaller OSS Projects

Large-scale OSS projects backed by corporations have the resources to meet regulatory demands, but smaller, community-led initiatives face significant challenges. Compliance requirements, such as creating detailed Software Bills of Materials (SBOMs), conducting regular security audits, and maintaining comprehensive documentation, demand technical expertise and financial resources that many small OSS teams lack. This could lead to the marginalization of smaller projects, reducing diversity and innovation within the OSS ecosystem.

Increased Legal Liabilities for Developers

The PLD’s expanded liability framework creates potential risks for developers. Manufacturers and integrators of OSS components in commercial products must now ensure these components meet security standards and do not introduce defects. This places significant pressure on developers to thoroughly vet their software, potentially stifling experimentation and creativity. Moreover, the fear of legal repercussions may deter contributors from engaging in OSS altogether.

Emphasis on Documentation and Accountability

Both the CRA and PLD underscore the importance of transparency through robust documentation. SBOMs, security attestations, and detailed records of development processes are vital to meeting compliance. While these practices enhance trust and accountability, they also add to the workload of OSS contributors, many of whom volunteer their time and resources. This increased burden could result in fewer contributions, especially from independent developers or small organizations.

Opportunities for Adaptation and Collaboration

While the challenges are significant, the CRA and PLD also present opportunities to strengthen OSS governance and collaboration. The study emphasizes that a balanced approach to regulation can ensure security and accountability without stifling innovation.

Promoting Transparency Through Standards

Enhanced documentation, such as SBOMs and security certifications, can build trust and improve collaboration between OSS developers and commercial integrators. Standardized processes for documenting security and functionality can reduce ambiguity and help small projects navigate regulatory requirements effectively.

Support for Community-Led Projects

Policymakers and larger corporations must recognize the unique challenges faced by small OSS projects. Offering resources, training, and funding to community-led initiatives can ensure they remain viable contributors to the OSS ecosystem. Programs that provide legal and technical assistance can bridge the gap between regulatory demands and limited project resources.

Collaborative Governance Models

The study highlights the need for a networked governance approach, where stakeholders across the OSS supply chain collaborate to ensure compliance. This includes partnerships between commercial entities, nonprofit organizations, and government bodies to share resources and expertise. Such models could alleviate the burden on individual contributors while ensuring robust security practices.

Embedding Security-by-Design in OSS Practices

Rather than viewing security compliance as an external imposition, OSS communities can integrate security-by-design principles into their workflows. By prioritizing secure coding practices and regular vulnerability assessments, developers can proactively address regulatory requirements and improve the reliability of OSS components.

Balancing security and innovation

The CRA and PLD signify a turning point in how OSS is perceived and regulated. While these measures aim to enhance cybersecurity and consumer protection, they must be implemented carefully to avoid undermining the collaborative spirit that defines OSS. The study urges regulators to adopt a nuanced approach that considers the diverse nature of OSS projects and the invaluable contributions of volunteer developers.

Striking this balance will require open dialogue between policymakers, OSS communities, and commercial stakeholders. By fostering collaboration, providing support for small projects, and emphasizing transparency, the OSS ecosystem can adapt to these changes while continuing to drive innovation.