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Scenarios of Co-existence

Between Proprietary and Open

Source Software Incentives and

Andrs Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
University of Edinburgh
OSS 2006 Conference
Como, Italy
Free Libre Open Source
Software as a global brand
Hacker sharing ethics
"information-sharing is a
powerful positive good, and
that it is an ethical duty of
hackers to share their
expertise by writing free
software and facilitating
access to information and to
computing resources
wherever possible".
"Information increases in
value by sharing it with other
people. Data can be the basis
for someone else's learning;
software can be improved
The Cathedral and the
Three different takes on
History of Non-
proprietary Software

Unix OS, 1969-1970

Sharing of source code by Unix developers,
Berkeley Software Distribution (BSD) 1980
Richard Stallman forms the Free Software
Foundation (FSF) 1984
Linus Torvalds and Linux circa 1991
Open Source term coined in 1998
Free Software
Movement created from the 1. The freedom to run the
growing disillusionment by program, for any purpose.
Richard Stallman with 2. The freedom to study how
proprietary software. the program works, and
Certain freedoms must be adapt it to your needs
(access to the source code).
kept, particularly the
freedom to access the 3. Freedom to redistribute
source code. copies.
4. The freedom to improve the
Free in free software does
program, and release
not mean free as in having improvements to the public,
no price, but rather free as so that the whole
in liberty. community benefits.
Open Source Initiative
Open source is deemed
less restrictive than FS.
There are hundreds of
licences in existence.
Open Source Initiative
(OSI) is a non-profit
organisation that certifies
OSS licences.
There are 58 approved
OSS licences, this
includes FS licences.
Definition of Open

Free Redistribution.
Source code will be made available for
Must allow the development of derived
License may allow restrictions to changes to
the original code if distributor assumes the
responsibility of fixing bugs.
Definition of Open
Source (2)

No Discrimination against persons or groups.

No Discrimination against fields of endeavour.
No need for additional licenses for other people who get
If software distributed within larger software bundle, the
software will still be subject to the larger product license.
The license must not restrict other software within same
Software typology
Proprietary software Non-proprietary
Closed source commercial
software Public domain
Free Software (FS)
Proprietaryware (demos)
Open Source (OSS)
Commercial software
Software licensed for a
Abandonware fee
Both proprietary and

Create Modify Share

Closed derivatives

Create Modify Sell

Actually, it is not the opposite of copyright , in
fact, it uses copyright for protection.
Copyleft is a licensing method by which the
work is protected by copyright, but it will have a
specific clause that allows a work to remain
open through a share-alike or viral clause.
Openness in this context means that the original
work and whatever derivatives must remain
available to the public in one way or another.
General Public License
(GPL) v2
Drafted by Richard Stallman and Eben Moglen.
68% open source projects use the GPL.
It reads part ideological manifesto, part legal
Allows licensees to use and distribute the
Contains viral element, all works that are
derived from the licence must be distributed with
the GPL.
Allows commercial use in some cases.
Copyleft clause in the
2(b) You must cause any work that you
distribute or publish, that in whole or in part
contains or is derived from the Program or any
part thereof, to be licensed as a whole at no
charge to all third parties under the terms of this
GPL v3
The new GPL version of the GPL is available
for comment.
It is longer, and more complex than its
It contains several controversial clauses:
Boosted viral clause (it now may apply to other
software included with the GPL software).
Restricts the use of Technical Protection Measures.
Includes a patent licence.
Contains a conditional clause: users of GPL-licensed
software should not initiate patent infringement suits.
The new viral clause
b) You must license the entire modified work, as a whole, under
this License to anyone who comes into possession of a copy.
These requirements apply to the modified work as a whole. If
identifiable sections of that work, added by you, are not derived
from the Program, and can be reasonably considered independent
and separate works in themselves, then this License, and its
terms, do not apply to those sections when you distribute them as
separate works for use not in combination with the Program. But
when you distribute the same sections for use in combination with
covered works, no matter in what form such combination occurs,
the whole of the combination must be licensed under this License,
whose permissions for other licensees extend to the entire whole,
and thus to every part of the whole.
Are they valid?
Copyleft licences under scrutiny in the United
States with RedHat v SCO.
GPL has been found to be valid under German
GPL found valid in Brazil.
Efforts underway to nationalise licences, for
example, CC-UK and the French GPL.
Distribution chain
Author /

Licensee / Licensee / Licensee /

Derivative User Distributor

Derivative User User Distributor

User Derivative
Dual licensing

Commercial Distribution OSS Distribution

Commercial licensee Sub-licensee

Commercial licensee Support agreement

Commercial licensee End-user

Trouble ahead?
Incompatibility issues
GPL may not be compatible with your licensing
Case Scenario 1: Using GPLd software
internally and to produce commercial applets
does not require GPL redistribution.
Case Scenario 2: Using GPLd code, changing
it as part of a proprietary package requires that
the software should be released under GPL.
Number of cases from SCO
against IBM and OSS
corporate users.
SCO claims Linux kernel
infringes its intellectual
property in UNIX.
Analysis of the claim indicates
that its spurious.
However, courts have not
thrown out case.
At least the cases should test
GPL in the USA (RedHat v
What if it all goes wrong?
The coming patent war?
Pre-emptive strategy 1
IBM has declared that it will not enforce 500
software patents if they are used by open
source developers.
Legally binding non-assertion commitment.
This is a contract in most legislations.
IBM obtained 3,000 software patents in 2004,
and owns about 30,000 in total.
Pre-emptive strategy 2
3. Grant of Patent License. Subject to the terms and conditions
of this License, each Contributor hereby grants to You a perpetual,
worldwide, non-exclusive, no-charge, royalty-free, irrevocable
(except as stated in this section) patent license to make, have
made, use, offer to sell, sell, import, and otherwise transfer the
Work, where such license applies only to those patent claims
licensable by such Contributor that are necessarily infringed by
their Contribution(s) alone or by combination of their
Contribution(s) with the Work to which such Contribution(s) was
submitted. If You institute patent litigation against any entity
(including a cross-claim or counterclaim in a lawsuit) alleging that
the Work or a Contribution incorporated within the Work constitutes
direct or contributory patent infringement, then any patent licenses
granted to You under this License for that Work shall terminate as
of the date such litigation is filed.
Pre-emptive strategy 3
(Patent Cooperation
Microsoft, on behalf of itself and its Subsidiaries
(collectively Microsoft), hereby covenants not to sue
Novells Customers and Novells Subsidiaries
Customers for infringement under Covered Patents of
Microsoft on account of a such Customers use of
specific copies of a Covered Product as distributed by
Novell or its Subsidiaries (collectively Novell) for which
Novell has received Revenue (directly or indirectly) for
such specific copies; provided the foregoing covenant is
limited to use by a Customer of Novell (i) of such
specific copies that are authorized by Novell in
consideration for such Revenue, and (ii) within the
scope authorized by Novell in consideration for such
Whats at stake?
The world
Licence fee exports (2002)
Licence fee imports (2002)
Thank you