introduction to open source licensing

Karen Copenhaver

Mark Radcliffe

Peter Vescuso

Webinar

January 28, 2009

Introduction to Open Source Licenses

Copyright © 2006 Black Duck Software, Inc. All Rights Reserved.

Speakers

Karen Copenhaver

Partner at Choate Hall & Stewart

Counsel for the Linux Foundation

Mark Radcliffe

Partner at DLA Piper

General Counsel for the Open Source Initiative (OSI)

Peter Vescuso

EVP of Marketing and Business Development, Black Duck Software


Agenda

An Introduction to Open Source Licenses Background and history of open source

– Why use it– History of the open source movement– Definition of open source– Myths

Legal framework:– Intellectual property and licensing

Types of Open Source Licenses

Q & A


Why Use Open Source Software?

The Promise The Challenges

Significantly reduce development costs – up to 90% – and accelerate time to market

Billions of lines of available code

Find the right code License obligations Pedigree

Source code exits, why re-invent the wheel?

Lower costs

It’s free but not a free lunch….


History of the Open Source Movement

1984 - The GNU Project at MIT, Richard Stallman, and the Free Software Foundation

1991 - Linus Torvalds releases first Unix-like kernel; combines it with GNU software to form first release of Linux operating system

1994 – Red Hat is founded to distribute and support Linux commercially

1995 - A community of developers start work on the Apache Web Server

1997 - The Cathedral and the Bazaar is published by Eric Raymond

1998 - The term "Open Source" is coined, the Open Source Initiative (a non-profit organization) is formed


Free Software Definition

“Free Software” is a matter of liberty, not price. (Free Speech, not Free Beer)

The freedom to run the program for any purpose.

The freedom to study how the program works, and to adapt it to your needs (requires access to source).

The freedom to redistribute copies so you can help your neighbor.

The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (also requires access to source).


Principles of Open Source Licensing from the OSI

Who is the OSI (Open Source Initiative)?– The OSI are the stewards of the Open Source Definition (OSD) and the

community-recognized body for reviewing and approving licenses as OSD-conformant.

Open Source Definition– 1. Free Redistribution– 2. Program must include Source Code and must allow distribution in

source code as well as compiled form. – 3. Must Allow Modifications and Derived Works– 4. Integrity of the Author's Source Code– 5. No Discrimination Against Persons or Groups– 6. No Discrimination Against Fields of Endeavor– 7. Distribution of License – no additional license can be required of

others who redistribute the program– 8. License Must Not Be Specific to a Product– 9. License Must Not Restrict Other Software– 10. License Must Be Technology-Neutral – not predicated on any

individual technology


OSI Approved Licenses (www.opensource.org )

72 LicensesMicrosoft Reciprocal License (Ms-RL)MIT licenseMITRE Collaborative Virtual Workspace License (CVW License)Motosoto LicenseMozilla Public License 1.0 (MPL)Mozilla Public License 1.1 (MPL)Multics LicenseNASA Open Source Agreement 1.3NTP LicenseNaumen Public LicenseNethack General Public LicenseNokia Open Source LicenseNon-Profit Open Software License 3.0 (Non-Profit OSL 3.0)OCLC Research Public License 2.0Open Group Test Suite LicenseOpen Software License 3.0 (OSL 3.0)PHP LicensePython license (CNRI Python License)Python Software Foundation LicenseQt Public License (QPL)RealNetworks Public Source License V1.0Reciprocal Public LicenseReciprocal Public License 1.5 (RPL1.5)Ricoh Source Code Public LicenseSimple Public License 2.0Sleepycat LicenseSun Industry Standards Source License (SISSL)Sun Public LicenseSybase Open Watcom Public License 1.0University of Illinois/NCSA Open Source LicenseVovida Software License v. 1.0W3C LicensewxWindows Library LicenseX.Net LicenseZope Public Licensezlib/libpng license

Academic Free License 3.0 (AFL 3.0)Affero GNU Public LicenseAdaptive Public LicenseApache Software LicenseApache License, 2.0Apple Public Source LicenseArtistic licenseArtistic license 2.0Attribution Assurance LicensesNew and Simplified BSD licensesBoost Software License (BSL1.0)Computer Associates Trusted Open Source License 1.1Common Development and Distribution LicenseCommon Public Attribution License 1.0 (CPAL)Common Public License 1.0CUA Office Public License Version 1.0EU DataGrid Software LicenseEclipse Public LicenseEducational Community License, Version 2.0Eiffel Forum LicenseEiffel Forum License V2.0Entessa Public LicenseFair LicenseFrameworx LicenseGNU General Public License (GPL)GNU General Public License version 3.0 (GPLv3)GNU Library or "Lesser" General Public License (LGPL)GNU Library or "Lesser" General Public License version 3.0 (LGPLv3)Historical Permission Notice and DisclaimerIBM Public LicenseIntel Open Source LicenseISC LicenseJabber Open Source LicenseLucent Public License (Plan9)Lucent Public License Version 1.02Microsoft Public License (Ms-PL)

http://www.oopnsource.org/


Open Source Myths For those fond of the discussion of deadly diseases:

You cannot use open source software in a proprietary environment [or you will die]

All open source licenses require the release of source code for everything.

The easiest answer is to “just say no.”


Open Source Myths For those who like simple answers:

None of these agreements are enforceable so it doesn’t really matter anyway.

No one will ever know.

Our corporate policy says we don’t use open source.


Legal Framework: IP and Licensing

Intellectual Property– Patent– Copyright

Licensing

Commercial terms– Article II of the Uniform Commercial Code


What is a patent?

An exclusive right to exclude– Making– Using– Selling– Importing

Invention must be useful, novel and non obvious

Granted by the federal government (Title 35, U.S.C.)- 20 years after filing (after June 8, 1995 (some extensions for drugs))

Examples: drugs, computer software, diapers


What is a copyright?

Original works of authorship– Fixed in any tangible medium of expression– Capable of being discerned by someone

directly or through use of a machine

Gives the owner the right to prevent others from using the property– Copying– Creation of a derivative work– Inserting in a compilation or collective work

Protects expression (not the idea)

Federal protection – U.S. Copyright Act of 1976

For a limited term (at least 70 years)


Who owns a copyright?

The author, unless the author is an employee– The ownership of an employee’s works is automatically vested

in the employer

Why does ownership matter?– Only the owner can enforce a copyright– Only the owner can transfer ownership of the copyright to

another Assignment of a copyright must be in writing

– Only the owner can license others (directly or indirectly) A license can be granted orally or in writing, expressly or by

implication


What is a license?

Permission by the owner of property to take some act that the owner has the ability to control

What is a sublicense?– A license granted by a licensee– The right to grant a sublicense must be expressly stated in a

license and will not be implied

Copyright

Patent


What is the license for a book?

A book is not licensed, it is sold.

The sale of a book is not the sale of the copyright, it is the sale of a copy.

The rights of the owner of a copy of a copyrighted work are in the copyright statute.

Buying a book does not give you the right to copy the book.

Fair use gives you certain rights to copy portions of the book.

The sale of used books demonstrates the difference between the sale of a copyrighted work and a license for a copyrighted work.

Software has become a sale of a license not a sale of the software


What is the same between commercial (aka “closed source”) and open source licenses?

Both are based on ownership of intellectual property

Both grant certain rights and retain others

Both are governed by the same laws

Both may include provisions which may be incompatible with the obligations of other licenses

License obligations can be incompatible, but the issue is whether the obligations are triggered


What is different about open source licenses?

Different goals

Written by developers not lawyers

Encourages uncontrolled combination and reuse

Certain legal issues regarding contract formation remain open for open source licenses (a similar issue has arisen for shrink wrap, click wrap and browse wrap licenses)

Open source licenses have no acceptance procedures

Some open source licenses impose sharing obligations on users


Commercial Terms: Article II/UCITA Software is “goods” under Article II of the Uniform

Commercial Code

UCITA – Uniform Computer Information Transaction Act (Maryland/Virginia)

Other warranty laws apply to some “consumer” software such as Magnusson-Moss Warrant Act (Federal) and Song Beverly Warrant Act (California)

UCC approach: “default” provisions apply if not addressed in contract. For example:– Consequential damages will be awarded if not disclaimed, i.e.,

lost profits– Infringement indemnity– Merchantability (Average quality in the trade: what does it mean

for software?)


Article II Concepts

Acceptance

Warranty

Limitation of Remedies

Indemnity


Types of Open Source Licenses:Restrictive, Permissive, Other

Restrictive (aka Copyleft, reciprocal)– Requires licensor to make improvements or enhancements

available under similar terms– Example is the GPL: Licensee must distribute “work based on

the program” and cause such works to be licensed at no charge under the terms of the GPL

Permissive– Modifications/enhancements may remain proprietary– Distribution in source code or object code permitted provided

copyright notice & liability disclaimer are included and contributors’ names are not used to endorse products

– Examples: Berkeley Software Distribution (BSD), Apache Software License

Single User License– Apple– Lucent

Miscellaneous– Zlib/libpng


Top 10 Most Commonly Used Licenses in Open Source Projects

Note: The table above lists the top 10 licenses that are used in open source projects, according to the Black Duck Software KnowledgeBase. This data is updated daily. This snapshot was taken the day this presentation had to be submitted on January 27, 2009. Visit: http://www.blackducksoftware.com/oss

• Top 10 licenses account for 94% of OS projects

• Rank by # of projects using the license

Rank License 1 GNU General Public License (GPL) 2.02 GNU Lesser General Public License (LGPL) 2.13 Artistic License (Perl)4 BSD License 2.05 GNU General Public License (GPL) 3.06 Apache License 2.07 MIT License8 Mozilla Public License (MPL) 1.19 Common Public License (CPL)10 zlib/libpng License


Touch Points within the Organization

Inbound Licenses – Internal use which may be in the form of tools, operating

systems and other network infrastructure or applications

Outsourcing and SAAS– Software which you depend upon but never bring into your

data center

Outbound – Contributions by the company or contributions by employees,

or in the form of products or projects– Alone or combined with closed source offerings

Acquisitions– All of the above by a target entity


Conclusion

Open Source is here to stay

Will complement not replace traditional models

Not every “Open Source” license is truly Open Source

Must understand the risks you are assuming

Need an open source strategy combined with the right tools and automation technology


Next in the Black Duck Legal Webinar Series: Understanding the Top Ten OSS Licenses

The webinar will cover:– The most commonly used licenses– The critical terms– “License incompatibility" issues– Best practices for dealing with these licenses

Day and time: – Wednesday February 11th at 2PM EST

To sign up:http://www.blackducksoftware.com/files/legal-webinar-series.html

http://www.blackducksoftware.com/files/legal-webinar-series.html

Questions?

introduction to open source licensing

Technology

open source software

open source licensesbackground

open source movement1984

term open source

open source definition1

osi open source initiative

open source definition

authors source code5