Agenda:

IP Law Basics Free/Open Source: What Is It?

Open Source Licenses Software Architecture Basics

Benefits, Best Practices Free Culture & Creative Commons

Q&A

IP Law Basics

Intellectual Property and Software

Copyright Patent Trade

Secret To Privacy/Publicity

Trademark Rights

Copyright Law

Five basic rights (17 U.S.C. 106):

Copy Distribute
Modify (create derivative works) Publicly display

Publicly perform

Open-source and creative commons licenses leverage copyright law

Sometimes patents

Copyright Derivative Works

A derivative work is a work based upon one or more preexisting works. 17 U.S.C. 101. Some examples from the statute: translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted . . . Note the lack of software examples in the statute. Particularly challenging to tell with various kinds of software structures.
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Patents

The right to:

exclude others from making, using, selling, etc. a novel, non-obvious and useful
process, machine, or composition of matter

Governs software, although extent is unclear

Area of law is uncertain in light of recent decisions ( Bilski)

Patent Litigators call their job the sport of kings

Patents are expensive to get, and expensive to enforce

Requires disclosure of what is being patented

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Trade Secrets

A secret that derives value from being secret

E.g., formula for Coca-Cola

Matter of State Law, but many uniform statutes

Computer software source code can be trade secret Protection destroyed by disclosure Resurgence With Software As A Service

Easier to protect when code is centralized and not released

Googles PageRank able to be patented, and protected as a trade secret
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Contracts vs. Licenses

Contract: a binding legal agreement between two parties containing rights and obligations

Offer & acceptance

License: permission to do something often to use property (intellectual or otherwise)

Enter private property Make copies of a DVD Play copyrighted music at a nightclub

Modify copyrighted computer software

For IP, who owns the underlying licensed IP?
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The Evolution of Contract Formation

Signed, written/printed document

Shrinkwraps Clickwraps
Browsewraps Acceptance through use

Conditions to a license (e.g., GPL)

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Free (and Open

Source) Software
Richard Stallman
Free Software Foundation

What Is Open-Source Software?

There are a lot of misconceptions:

You can do whatever you want Its in the public domain

You cant make money using OSS The GPL is always a problem

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Difference Between Free and Open Source

Free speech, not free beer Free Software Foundation / Richard Stallman have advocated for Free software that can be endlessly modified and remain Free Open Source much broader, coined to dispel misconceptions, appeal to business FLOSS (Free, Libre and Open-Source Software) as broad term to encompass all

Organizational Support: The Movement

The Free Software Foundation has a fairly small budget ($1m/annual) and promotes Free distribution of software Stallman is president of FSF

Organizational Support: Business

Open Source often has champions from those that provide related hardware and services

Significant overlap with free software: GPL dominates.

Open Source Principles

Free Redistribution

Source Code Availability Modifications and Derived Works

Integrity of the Authors Code

No Discrimination (e.g., commercial use, geography, etc.) Licenses are not product/technology specific
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IP Licenses

Copyright license

Patent license When are they effective?

Trigger on distribution Use Wrap? Dual licensing

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Copyright Derivative Works

Lewis Galoob v. Nintendo (video game enhancer)

Micro Star v. Formgen (video gameplay maps) Combining or modifying source code easy
Linking a library? Using a GPL device driver in your proprietary kernel?

Lack of court cases leads to conservative advice by attorneys

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Copyright Derivative Works

Conceptual View

Based on Adapted
Subclassing in OO programming? (FSF says yes)

Bit-Centric View

Single file?
Embedded platforms, firmware?

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Open Source Licenses

Major Open Source Projects

Can avoid the need to pay for licenses for commercial software Hidden costs

OSS License Types

Reciprocal/Copyleft

Academic

viral, contaminating
Provide source code for the work (offers to provide are okay) Mark modifications Notify licensees of/provide copy of the license terms

Attribution in the documentation

Preservation of all notices in the source code

Mark modifications

OSS License Types

Reciprocal

Academic

GPL Affero GPL (AGPL)

Apache
BSD MIT

LGPL Common Public License (CPL)

Mozilla Public License (MPL) CDDL (Sun)

OpenSSL/SSLeay Perl/Artistic (?)

2010 Open Source License Distribution

http://www.blackducksoftware.com/oss/licenses#top20

Reciprocal/Copyleft Licenses
a.k.a. viral or contaminating

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Reciprocal Licenses Require Sharing At Different Levels of Code

License GPL LGPL CPL [IBM/Common Public License]

Granularity Of Reciprocity Program Library Modules

CDDL [Sun] MPL [Mozilla Public License]

Files Files

GNU General Public License (GPL)

Distribution of source

Preserve all license and copyright notices Provide a copy of the GPL license text

Modifications

Mark changes

License your derivatives under the GPL

In some cases, display notice in the application

Distributions of binaries

Provide source code or make an offer to provide source (valid for 3 years)
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Software Architecture Basics

Source Code Example (Firefox)

// Is the char already allocated? if ((mask == NOTATION_LONGDIV && mLongDivCharIndex >= 0) ||

(mask == NOTATION_RADICAL && mRadicalCharIndex >= 0)) return NS_OK;

// No need to track the style context given to our MathML chars. // The Style System will use Get/SetAdditionalStyleContext() to keep it // up-to-date if dynamic changes arise. PRUint32 i = mMathMLChar.Length();

nsAutoString Char;
if (!mMathMLChar.AppendElement()) return NS_ERROR_OUT_OF_MEMORY; if (mask == NOTATION_LONGDIV) { Char.Assign(kLongDivChar);

mLongDivCharIndex = i; } else if (mask == NOTATION_RADICAL) { Char.Assign(kRadicalChar); mRadicalCharIndex = i; }

nsPresContext *presContext = PresContext();

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From Source to Executable

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GPL When Is It Safe?

Running a proprietary application on Linux (GPLd kernel) Making remote procedure calls to a GPLd application

Distributing proprietary software on the same medium as GPLd software

The ASP Loophole: using GPLd software to provide a service from a web server (except javascript, other code delivered to end users) No ASP Loophole for Affero License and AGPL
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GPL When Is It Viral?

Combining GPLd source with your source and compiling Linking a GPL library to your proprietary application

Statically Dynamically?

Using a GPL driver with your proprietary operating system

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The Lesser/Library GPL (LGPL)

Like the GPL but less restrictive

Designed for code libraries Must still

Make source code for the LGPLd library available Release modifications to the library under the LGPL Preserve notices

Provide a copy of the LGPL

Permit reverse engineering for debugging But you can safely link (statically and dynamically) proprietary applications to LGPL libraries
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Mozilla Public License (MPL); Common Public License (CPL)

CPL is reciprocal but much safer than GPL

Modifications to existing modules subject to the CPL New/separate modules are not subject to the CPL

MPL is even safer

Modifications to existing files subject to the MPL

New files or modules are not subject to the MPL

Patent defense clause software license, patent licenses

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Academic Licenses
Berkeley, MIT, etc.

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Berkeley Software Distribution (BSD); The MIT License

Distributions of source must retain notices (i.e., the license text) Distributions in binary form must be accompanied by a notice in the documentation for the software

Much less restrictive than GPL and copyleft licenses, can lead to more extensive use in commercial & proprietary applications.

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Apache License (1.1, 2.0)

Provide a copy of the license

Mark modifications
Retain existing notices

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Patent Provisions In Open Source Licenses

A few OSS licenses incorporate a patent license (MPL, CPL) Risk is not much different than software generally Prevents contributors from giving copyright, encouraging adoption of software, then suing on patent Some OSS licenses contain a patent defense clause Microsoft previous threat to Linux with patents

Microsoft, Apple, Oracle suing Google over Android

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Enforcement Actions

Few decided cases in the US

Jacobsen v. Katzer Artistic License Court found a license whose attribution conditions were breached Software Freedom Conservancy v. Best Buy GPL Court found conditions of GPL breached, granted an injunction (barring shipment of HDTVs)

Other lawsuits filed by the SFLC on behalf of its clients

Verizon, Xterasys, High-Gain Antennas, Monsoon Multimedia All settled

Germany

A few decided cases finding the GPL enforceable

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Benefits, Best Practices

Why Use Open Source?

Reduce development costs

Use software that has been battle tested

Dual-licensing

E.g., MySQL, Mozilla, ghostscript

More easily comply with open standards

Offer services around OSS

Red Hat

Android/Google

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Potential Risks from Using OSS

Taint of proprietary software, requiring release of source code Unknown pedigree Patent threat

Again, not much different from risk when writing your own software

Automatic loss of license if open source license conditions are breached

In some cases as a result of bringing a patent infringement suit

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Recommended Best Practices

Raise awareness with and educate engineering and management Implement open source intake process Training, code reviews

Inventory of open source used

Simple string searches Commercial software (Palamida, Black Duck)

Inventory of distribution uses vs. internal uses

Maintain inventory of distribution conditions

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From Free Code To Free Culture

Free Culture: Expanding Past Code

1989: GPL first released

2000: The GFDL (GNU Free Documentation License) released for software manuals, etc.
2000 - European Space Agency releases processor under the GPL 2001: Open Cola developed 2001: Wikipedia launched 2002: Creative Commons, nonprofit founded and Creative Commons (CC) licenses published

What Else Can Be Open Licensed

Anything that can be copyrighted:

Photographs Writings of almost any length (except the very short)

Mixed Media

Educational Materials Designs for objects and buildings

Music Video

How CC Licensing Works

Still a license, so dependent on copyright ownership. Allows licensing based on author's choice of four different conditions (total 6 core licenses):

by: Attribution (credit for the work)

sa: Share-alike (copyleft) nc: Non-commercial (use cannot be for compensation)

nd: No derivative works (most restrictive)

Because no rights is the default, CC licenses provide a structure by which to share

Models For Uses of CC Licenses

Shared content Wikipedia switched to CC licensing in 2009 Fiction Cory Doctorow CC Novel On NYT List Images Flickr is a major source of CC content and validation by litigation Educational Materials MIT OpenCourseWare, Connexions, Curriki.

Music No top 40 hits yet. SoundCloud has a lot of content; Wired Mags CC-licensed album.

Use For Shared Editing & Knowledge

Wikipedia software: GPL

Wikipedia content: Creative Commons Attribution-ShareAlike.

No copyright assignment by authors, but only one license to preserve homogeneity of content.

Interesting to contrast with Facebook: some information types end up open, others not

Use For Collecting Media: Flickr

Photographs are copyrightable material, and so can be licensed by the photographer. Flickr allows an easy way for individual users to license out some rights over 20% of Flickr photos are licensed under one.

Use For Collecting Media: Flickr

Because Flickr (unlike Wikipedia) does not intend for its content to be re-used en masse, different licenses are permitted.
CC License by (just want credit) by-sa Percent of all CC Licenses on Flickr (25 Feb 2010) 13% 9%

by-nd
by-nc by-nc-sa (copyleft) by-nc-nd (free advertising)

5%
14% 29% 31%

http://creativecommons.org/weblog/entry/20870

Choose Your License Carefully

The photographer here posted on Flickr with a cc-by license, requiring only attribution Virgin Mobile used in Australia in advertisements

No recourse for photographer

Subject likely had right to privacy which was not licensed Ended on procedural grounds.
http://www.flickr.com/photos/sesh00/515961023/

How Do I Make Money With This?

Open Core/loss-leader/razors. Open-license a lesser version of your product or service

Dual-licensing

Sell services or related products around FLOSS

Examples: MySQL, RedHat/Ubuntu, ghostscript.

Copyright assignment from contributors is cumbersome

Content Aggregation. Examples: Flickr, YouTube (if/when YouTube is profitable).

Open Source Hardware

License to use copyrighted design

Examples:

Computer chips since ESA chip in 2000

FuzeBox open source game console

OSCar open source automobile Make Magazine annual list

Often sold as kits Practical restrictions because of capital required