legal aspects of software sidney fong 2006-03-18

Legal Aspects of Legal Aspects of SoftwareSoftware

Sidney FongSidney Fong

2006-03-182006-03-18

DisclaimerDisclaimer The authors are not lawyers of any The authors are not lawyers of any

jurisdiction. This presentation does not jurisdiction. This presentation does not constitute legal advice. One should constitute legal advice. One should consult their own lawyers for legal advice.consult their own lawyers for legal advice.

The authors do not accept any liability for The authors do not accept any liability for any loss or damage , whether physical or any loss or damage , whether physical or financial or otherwise, caused relying on financial or otherwise, caused relying on any information provided herein.any information provided herein.

The information presented herein can by The information presented herein can by no means be considered complete and no means be considered complete and error-free.error-free.

Disclaimer (Cont’d)Disclaimer (Cont’d) By the way, do you know why we need a disclaBy the way, do you know why we need a discla

imer like this?imer like this? The Legal Practitioners Ordinance s46(1):The Legal Practitioners Ordinance s46(1):

Any unqualified person who wilfully pretends to be, Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or descripor takes or uses any name, title, addition or description implying that he is qualified or recognized by ltion implying that he is qualified or recognized by law as qualified to act as, a solicitor shall be guilty oaw as qualified to act as, a solicitor shall be guilty of an offence and shall be liable on summary convictf an offence and shall be liable on summary conviction to a fine of $500000. ion to a fine of $500000.

In Tort law, if a person relies on information giIn Tort law, if a person relies on information given by a specialist and incurs losses, he may bven by a specialist and incurs losses, he may be able to sue the specialist for the losses. Of coe able to sue the specialist for the losses. Of course, a disclaimer will be useful here.urse, a disclaimer will be useful here.

About today’s presentationAbout today’s presentation

I aim to provide some solid legal groundwork I aim to provide some solid legal groundwork before moving on to more “computer related” before moving on to more “computer related” parts that may be more interesting to you. parts that may be more interesting to you. Therefore:Therefore:

The first part will be very boring. It may be The first part will be very boring. It may be less boring if you participate in the less boring if you participate in the discussion.discussion.

It may be complicated (this is exactly what I It may be complicated (this is exactly what I am supposed to learn as a full time student). am supposed to learn as a full time student). It may be easier to understand if you ask It may be easier to understand if you ask questions.questions.

So please be more active! So please be more active!

Today’s Features…Today’s Features…

Boring basic stuff in the beginning Boring basic stuff in the beginning Are EULA’s valid? Are shrink-wrap licenAre EULA’s valid? Are shrink-wrap licen

ses valid?ses valid? Legality of “BT” and other file sharing Legality of “BT” and other file sharing

programs?programs? Legal Basis of Open Source Software LicLegal Basis of Open Source Software Lic

ensesenses Can Open Source Licenses be revoked?Can Open Source Licenses be revoked?

Today’s PresentationToday’s Presentation

Introduction to LawIntroduction to Law Legal System of Hong KongLegal System of Hong Kong Brief Introduction to Criminal LawBrief Introduction to Criminal Law Contract LawContract Law Some Aspects of Property LawSome Aspects of Property Law Patent LawPatent Law Copyright LawCopyright Law Software LicensesSoftware Licenses MiscellaneousMiscellaneous

““Law”Law”

What is Law?What is Law? Why do we have to know about law?Why do we have to know about law? What is the purpose of Law?What is the purpose of Law?

Bring order to society?Bring order to society? Role of Law in Hong Kong?Role of Law in Hong Kong?

What is the effect of Chinese Traditional What is the effect of Chinese Traditional culture on the role of Hong Kongculture on the role of Hong Kong

Any alternatives to law?Any alternatives to law?

Moliu topics for discussionMoliu topics for discussion Case 1:Case 1:

(Adapted from Alan Tam)(Adapted from Alan Tam) You bought a pack of biscuits from supermarket, which gone bad soYou bought a pack of biscuits from supermarket, which gone bad so

on.on. You want refund, but the back of the receipt reads: “No refund after You want refund, but the back of the receipt reads: “No refund after

7 days.”7 days.” Case 2:Case 2:

(Adapted from Wikipedia)(Adapted from Wikipedia) ULSP is a Xanga visitor tracking service that enable Xanga users to oULSP is a Xanga visitor tracking service that enable Xanga users to o

btain the visitor's username on Xanga, and IP address, etc. There are btain the visitor's username on Xanga, and IP address, etc. There are concerns that the use of ULSP may violate privacy and official policieconcerns that the use of ULSP may violate privacy and official policies, as the Xanga terms of use states, "you must agree not to use Xangs, as the Xanga terms of use states, "you must agree not to use Xanga's products or services to... collect or store personal data about otha's products or services to... collect or store personal data about other users". Is ULSP legal?er users". Is ULSP legal?

Case 3:Case 3: Do you know that (theoretically) we cannot use Do you know that (theoretically) we cannot use 毫子毫子 to pay more thto pay more th

an $2? And we cannot use coins to pay more than $100? (Coinage Oran $2? And we cannot use coins to pay more than $100? (Coinage Ordinance)dinance)

Preliminary TermsPreliminary Terms

Law – Law – 法律法律 (etc.)(etc.) Chief Executive – Chief Executive – 行政長官行政長官 Legislature – Legislature – 立法機關立法機關 Legislative Council – Legislative Council – 立法會立法會 Court – Court – 法院法院 // 法庭法庭 Common Law – Common Law – 普通法普通法 Precedent – Precedent – 先例先例


Introduction to LawIntroduction to Law Legal System of Hong KongLegal System of Hong Kong Brief Introduction to Criminal LawBrief Introduction to Criminal Law Contract LawContract Law Some Aspects of Property LawSome Aspects of Property Law Patent LawPatent Law Copyright LawCopyright Law Software LicensesSoftware Licenses MiscellaneousMiscellaneous

Basic Law.Basic Law.

Our “Constitution” – it provides legal Our “Constitution” – it provides legal basis for everything in Hong Kongbasis for everything in Hong Kong Even the government, courts and legislature Even the government, courts and legislature

derives legal legitimacy from the Basic Law!derives legal legitimacy from the Basic Law! Art 43: Chief ExecutiveArt 43: Chief Executive Art 66: Legislature (Legislative Council)Art 66: Legislature (Legislative Council) Art 80, 81: CourtsArt 80, 81: Courts

Basic Law..Basic Law..

Our “source of law”:Our “source of law”: Art 8: “The laws previously in force in Art 8: “The laws previously in force in

Hong Kong, … shall be maintained…”Hong Kong, … shall be maintained…” This means laws that were applicable before This means laws that were applicable before

1997 continues to apply in Hong Kong1997 continues to apply in Hong Kong (See also Art 18)(See also Art 18)

Structure of Courts in Hong KongStructure of Courts in Hong Kong

Court of Final Appeal

Court of Appeal

Court ofFirst Instance

High Court

District Court

Magistrates’ Court Labour Tribunal

Obscene Articles Tribunal

Small Claims Tribunal

Lands Tribunal

Coroner’s Court

Hig

her

香港法院結構香港法院結構

終審法院

上訴法庭

原訴法庭高等法院

區域法院

裁判法院

土地審裁處

淫褻物品審裁處

小額錢債審裁處

勞資審裁處

死因裁判法庭

Hig

her

““Common Law”Common Law”

A very “overloaded” term, many meaniA very “overloaded” term, many meanings:ngs:

1. Common Law vs Civil Law1. Common Law vs Civil Law As a system of lawAs a system of law

2. Common Law vs Legislation2. Common Law vs Legislation ““Judge made law” vs “laws passed in the lJudge made law” vs “laws passed in the l

egislature”egislature” 3. Common Law vs Equity3. Common Law vs Equity

You can ignore this unless you (want to) studYou can ignore this unless you (want to) study law…y law…

Features of Common Law SystemsFeatures of Common Law Systems

Relies on precedents – Lower courts are Relies on precedents – Lower courts are “bound” by decisions of higher courts“bound” by decisions of higher courts

Many laws are based on precedents instMany laws are based on precedents instead of legislationead of legislation eg. Contract law in Hong Kong is mainly baseg. Contract law in Hong Kong is mainly bas

ed on cases. If you look at the legislation yoed on cases. If you look at the legislation you will find very little law relating to general cu will find very little law relating to general contractsontracts

Common Law CountriesCommon Law Countries Examples of Common Law countries:Examples of Common Law countries:

Hong Kong (obvious), United Kingdom, Canada, Hong Kong (obvious), United Kingdom, Canada, Australia, New Zealand, Singapore, India…Australia, New Zealand, Singapore, India…

Basically almost all places that had been once Basically almost all places that had been once under British ruleunder British rule

USA…?USA…? Note that precedents of other countries Note that precedents of other countries

can be referred to in Hong Kongcan be referred to in Hong Kong In particular, many UK cases still represent the In particular, many UK cases still represent the

law in HK.law in HK. Also note that most movies or shows on TV Also note that most movies or shows on TV

reflect the legal system in USA, which may reflect the legal system in USA, which may be quite different in Hong Kong.be quite different in Hong Kong.

What is “the law”?What is “the law”? We can look at:We can look at: 1. Basic Law1. Basic Law 2. Legislation2. Legislation 3. Common Law: cases of HK and UK3. Common Law: cases of HK and UK 4. Common Law from other countries4. Common Law from other countries 5. 5. Common sense and ImaginationCommon sense and Imagination

Important note: the law is often unclear! (therefore Important note: the law is often unclear! (therefore we have #5)we have #5)

Remember all laws are subject to interpretation by Remember all laws are subject to interpretation by the courts! Sometimes even “clear” provisions in the courts! Sometimes even “clear” provisions in legislation can be interpreted in surprising ways!legislation can be interpreted in surprising ways!

In a sense, nobody really knows “what the law is”...In a sense, nobody really knows “what the law is”...


Introduction to LawIntroduction to Law Legal System of Hong KongLegal System of Hong Kong Brief Introduction of Civil and Criminal LawBrief Introduction of Civil and Criminal Law Contract LawContract Law Some Aspects of Property LawSome Aspects of Property Law Patent LawPatent Law Copyright LawCopyright Law Software LicensesSoftware Licenses MiscellaneousMiscellaneous

Civil vs Criminal LawCivil vs Criminal Law

Civil LawCivil Law Dispute ResolutionDispute Resolution Litigation between Litigation between

normal citizensnormal citizens Proof “on the balance Proof “on the balance

of probabilities”of probabilities” Possible outcomes:Possible outcomes:

Damages (paid to Damages (paid to plaintiff)plaintiff)

InjunctionInjunction

Criminal LawCriminal Law PunishmentPunishment Procecuted by governmProcecuted by governm

entent Proof “beyond reasonaProof “beyond reasona

ble doubt”ble doubt” Possible outcomes:Possible outcomes:

Fines (paid to govt)Fines (paid to govt) ImprisonmentImprisonment

Note that the same events can lead to bothcivil and criminal actions simultaneously

ExampleExample Scenario: Candy hits and injures Badguy intentionally. Scenario: Candy hits and injures Badguy intentionally.

Badguy pays $1,000,000 for medical expenses (eg. HosBadguy pays $1,000,000 for medical expenses (eg. Hospital treatment).pital treatment).

Civil action: Badguy sues Candy for “Trespass AgainsCivil action: Badguy sues Candy for “Trespass Against the Person”. Candy compensates Badguy’s medict the Person”. Candy compensates Badguy’s medical expensesal expenses

Criminal action: Police / HK Govt prosecutes Candy for Criminal action: Police / HK Govt prosecutes Candy for ““assault occasioning actual bodily harmassault occasioning actual bodily harm”, maximu”, maximum imprisonment for 3 years. (Offences Against the Perm imprisonment for 3 years. (Offences Against the Person Ordinance, section 39)son Ordinance, section 39)

Note that the requirements for the civil action and for Note that the requirements for the civil action and for the criminal action can be very different.the criminal action can be very different.

About Contract LawAbout Contract Law

We want to know whether there is a contract, We want to know whether there is a contract, and what are the contents of the contract.and what are the contents of the contract.

Question: do contracts have to be written on pQuestion: do contracts have to be written on paper (i.e. aper (i.e. 「白紙黑字」「白紙黑字」 )?)?

Question: If I tell you “I’ll give you my Question: If I tell you “I’ll give you my notebook for free”, you say “sure”. Is notebook for free”, you say “sure”. Is there are contract?there are contract?

Question: are advertisements contracts?Question: are advertisements contracts? Question: what happens when you breach Question: what happens when you breach

a contract?a contract?

General Principles of Contract LawGeneral Principles of Contract Law

A contract must have:A contract must have: OfferOffer AcceptanceAcceptance ConsiderationConsideration Intention to legal relationsIntention to legal relations

Contents of the contract:Contents of the contract: The court will give effect to the “intention of the pThe court will give effect to the “intention of the p

arties” (freedom to contract)arties” (freedom to contract) Implied terms: eg. Sales of Goods – fitness for purpImplied terms: eg. Sales of Goods – fitness for purp

ose, merchantable quality, etc.ose, merchantable quality, etc. Remedies:Remedies:

Damages, Recission, PerformanceDamages, Recission, Performance

Contracts, Property, LicencesContracts, Property, Licences

ContractContract: between two persons: between two persons PropertyProperty: a “bundle of rights” : a “bundle of rights”

enforceable against the whole worldenforceable against the whole world LicensesLicenses: (in general) somebody else : (in general) somebody else

owns the property but allows you to owns the property but allows you to use ituse it

ExampleExample Little cx offers to sell Kay his comic book for $1Little cx offers to sell Kay his comic book for $1

000. Kay agrees. Whoops, Kay forgot to bring 000. Kay agrees. Whoops, Kay forgot to bring money. Little cx says, “nevermind, the book imoney. Little cx says, “nevermind, the book is now yours, pay me back later”. Just after Kas now yours, pay me back later”. Just after Kay gets the book, a thief snatches the book and y gets the book, a thief snatches the book and runs away. Some days later, Kelly found the boruns away. Some days later, Kelly found the book on the floor and picks it up.ok on the floor and picks it up.

What then?What then? Can cx get $1000 from Kelly? Can cx get the boCan cx get $1000 from Kelly? Can cx get the bo

ok from Kelly?ok from Kelly? Can Kay get the book from Kelly?Can Kay get the book from Kelly?

Example (cont’d)Example (cont’d)

ContractContract: Kay still owes $1000 to cx. cx can sue : Kay still owes $1000 to cx. cx can sue Kay (probably in small claims court) if he doesKay (probably in small claims court) if he doesn’t pay. cx cannot sue the thief (even if police n’t pay. cx cannot sue the thief (even if police finds him) to pay for the book because he has finds him) to pay for the book because he has no contract with the thief.no contract with the thief.

PropertyProperty: Kay still has property rights in the bo: Kay still has property rights in the book. So he can get back the book from Kelly.ok. So he can get back the book from Kelly.

LicenseLicense: Kelly likes the book very much and wa: Kelly likes the book very much and wants to borrow it from Kay. She must ask Kay fonts to borrow it from Kay. She must ask Kay for permission, otherwise she may be liable for tr permission, otherwise she may be liable for theft.heft.

Property as bundle of rightsProperty as bundle of rights Normal usage of “property”:Normal usage of “property”:

The car is my property. The car is mine.The car is my property. The car is mine. In Law:In Law:

I have “property rights” to possess, use, sell, I have “property rights” to possess, use, sell, destroy (etc.) my cardestroy (etc.) my car

What is the difference?What is the difference? How about if the car is rented?How about if the car is rented?

The “car owner” has right to sell the carThe “car owner” has right to sell the car I do not have the right to sell or destroy the I do not have the right to sell or destroy the

car. I can only use it for driving.car. I can only use it for driving. So the rights can be “split up”So the rights can be “split up”

LicensesLicenses

Are Licenses revocable?Are Licenses revocable? Example 1: Si lends Leo a book. (i.e. Si gives a lExample 1: Si lends Leo a book. (i.e. Si gives a l

icense to Leo to use it). Can Si have it back at aicense to Leo to use it). Can Si have it back at any time?ny time?

Example 2: Si lends Leo a book. Leo pays $100 Example 2: Si lends Leo a book. Leo pays $100 per month rent. Can Si have it back at any timper month rent. Can Si have it back at any time?e?

Example 3: Si lends Leo a room to live in. Leo pExample 3: Si lends Leo a room to live in. Leo pays $100 per month rent. Can Si have it back at ays $100 per month rent. Can Si have it back at any time?any time?

LicensesLicenses

In general:In general: Bare Licenses can be revokedBare Licenses can be revoked Contractual Licenses cannot be revokedContractual Licenses cannot be revoked In some cases where the licensee has relied In some cases where the licensee has relied

on some promise that the license will not be on some promise that the license will not be revoked, then even “bare licenses” cannorevoked, then even “bare licenses” cannot be revoked (proprietary estoppel)t be revoked (proprietary estoppel)

PatentsPatents

Patents generally cover ideas. If an Patents generally cover ideas. If an idea is patented, one has to seek the idea is patented, one has to seek the patent owner to use that idea, even if patent owner to use that idea, even if he came up with the idea he came up with the idea independentlyindependently

General requirements of patentsGeneral requirements of patents Susceptible of industrial applicationSusceptible of industrial application Is new / not obviousIs new / not obvious Involves an inventive stepInvolves an inventive step Excluded matters (discussed below)Excluded matters (discussed below)

PatentsPatents ““Software patents”?Software patents”?

Patent Ordinance s93(2) basically says that computer prograPatent Ordinance s93(2) basically says that computer programs and algorithms are not patentable.ms and algorithms are not patentable.

However, s93(3) also says that they are not patentable only if However, s93(3) also says that they are not patentable only if the patent relates to the subject matters “as such”.the patent relates to the subject matters “as such”.

““but if some practical (i.e. technical) effect is achieved by the cobut if some practical (i.e. technical) effect is achieved by the computer or machine operating according to the instructions contmputer or machine operating according to the instructions contained in the program, and such effect is novel and inventive (i.e. ained in the program, and such effect is novel and inventive (i.e. not obvious), a claim directed to that practical effect will be patenot obvious), a claim directed to that practical effect will be patentable, notwithstanding it is defined by that computer program.ntable, notwithstanding it is defined by that computer program.” - Merrill Lynch Inc's Application” - Merrill Lynch Inc's Application

Software Patents in other parts of the world:Software Patents in other parts of the world: Europe is/was considering to allow “software patents”Europe is/was considering to allow “software patents” USA obviously allows software patents (eg. RSA, LZW)USA obviously allows software patents (eg. RSA, LZW)

PatentsPatents

FormalityFormality Requires application to the Registrar of PatentsRequires application to the Registrar of Patents $$ is required$$ is required Need to disclose details of the inventionNeed to disclose details of the invention (Generally, you won’t need one for personal uses(Generally, you won’t need one for personal uses

…)…) DurationDuration

20 years for standard patents 20 years for standard patents 8 years for short term patents8 years for short term patents

Copyright LawCopyright Law

““Copyright” is a bundle of rights, for eCopyright” is a bundle of rights, for example, the right to:xample, the right to: Copy, issue copies, rent copies, make availaCopy, issue copies, rent copies, make availa

ble to public, make “adaptions”.ble to public, make “adaptions”. ““Copyright” also includes “moral” riCopyright” also includes “moral” ri

ghts, e.g. the right to be recognized as aghts, e.g. the right to be recognized as author.uthor. NOT available for computer programs! NOT available for computer programs!

Basic requirementsBasic requirements

The work has to be “original” i.e. not copied The work has to be “original” i.e. not copied elsewhere.elsewhere.

No requirement of work to be creative/useful/No requirement of work to be creative/useful/etcetc

Copyright protects the “expression” of ideas,Copyright protects the “expression” of ideas, but not the ideas but not the ideas

Short phrases/words not protected by copyrigShort phrases/words not protected by copyright (but may be protected by Trademarks etc)ht (but may be protected by Trademarks etc)

No formalities needed (eg. © Copyright Sidney No formalities needed (eg. © Copyright Sidney Fong 2006) But note that some countries requiFong 2006) But note that some countries requires this.res this.

What can be under Copyright?What can be under Copyright?

Copyright subsists in:Copyright subsists in: 1. Literary, dramatic and musical, artistic works1. Literary, dramatic and musical, artistic works 2. Sound recordings, films, broadcasts or cable progra2. Sound recordings, films, broadcasts or cable progra

mmesmmes 3. Typographical arrangement of published editions3. Typographical arrangement of published editions

Computer ProgramsComputer Programs are classified under “literary are classified under “literary” works. Also, “compilation of data” (eg. name” works. Also, “compilation of data” (eg. names of all HKOI trainees) are “literary” works.s of all HKOI trainees) are “literary” works.

Unless there is an explicit agreement, an employeUnless there is an explicit agreement, an employer owns the copyright of works by employeesr owns the copyright of works by employees

Copyright DurationCopyright Duration Literary, dramatic, musical and artistic work: author’Literary, dramatic, musical and artistic work: author’

s life plus 50 years s life plus 50 years Sound Recording: 50 years from the end of the calendSound Recording: 50 years from the end of the calend

ar year in which it is made, or if during that period it is ar year in which it is made, or if during that period it is released, 50 years from the end of the calendar year in released, 50 years from the end of the calendar year in which it is released which it is released

Films: 50 years from the end of the calendar year in wFilms: 50 years from the end of the calendar year in which the death occurs of the last to die of the material hich the death occurs of the last to die of the material personspersons

Broadcasts and Cable Programmes: 50 years from first Broadcasts and Cable Programmes: 50 years from first transmissiontransmission

Typographical arrangements of published editions: 25 Typographical arrangements of published editions: 25 years from first publicationyears from first publication

Primary InfringementPrimary Infringement CopyingCopying Issuing copies to publicIssuing copies to public Renting copies (for computer programs or Renting copies (for computer programs or

sound recordings)sound recordings) Making available copies to the publicMaking available copies to the public Performing, showing or playing the work in Performing, showing or playing the work in

publicpublic BroadcastingBroadcasting Making an adaptationMaking an adaptation

(*without authorization by copyright owner)(*without authorization by copyright owner)

Secondary InfringementSecondary Infringement

Importing/exporting infringing copy not for Importing/exporting infringing copy not for domestic usedomestic use

Possessing or dealing with infringing copy Possessing or dealing with infringing copy for business purposesfor business purposes

Providing means for making infringing Providing means for making infringing copies copies

Permitting use of premises for infringing Permitting use of premises for infringing performanceperformance

Providing apparatus for infringing Providing apparatus for infringing performanceperformance

ExceptionsExceptions

Fair dealing:Fair dealing: Research and private studyResearch and private study Criticism, review and news reportingCriticism, review and news reporting

Accidental inclusionAccidental inclusion Educational useEducational use LibrariesLibraries Back up copy, adaptation of computer Back up copy, adaptation of computer

programs (necessarily)programs (necessarily) FontsFonts Etc. etc.Etc. etc.

Civil RemediesCivil Remedies

The copyright owner (or exclusive The copyright owner (or exclusive licensee) can sue infringers for the licensee) can sue infringers for the following:following:

Damages - $Damages - $ Injunctions -Injunctions -

Order for delivery upOrder for delivery up Order to dispose infringing copyOrder to dispose infringing copy Etc.Etc.

Criminal OffencesCriminal Offences The exact criminal offenses are quite The exact criminal offenses are quite

complicated, I will try to generalize the complicated, I will try to generalize the most common ones into one page:most common ones into one page:

Infringements in connection with trade or Infringements in connection with trade or businessbusiness

Import/export not for private/domestic useImport/export not for private/domestic use ““distributes (otherwise than for the distributes (otherwise than for the

purpose of, in the course of, or in purpose of, in the course of, or in connection with, any trade or business) to connection with, any trade or business) to such an extent as to affect prejudicially such an extent as to affect prejudicially the owner of the copyright, an infringing the owner of the copyright, an infringing copy of a copyright work. “copy of a copyright work. “

Penalties: up to Penalties: up to $50000 and 4 years imprison$50000 and 4 years imprisonment.ment.

MiscellaneousMiscellaneous

More on Copyright can be found in CopyMore on Copyright can be found in Copyright Ordinance (Cap 528)right Ordinance (Cap 528)

Note that some criminal provisions are Note that some criminal provisions are suspended by “suspended by “The Copyright (SuspensThe Copyright (Suspension of Amendments) Ordinance“.ion of Amendments) Ordinance“.

Copyright on the InternetCopyright on the Internet

Linking to other sites? (Linking to other sites? (Shetland Shetland Times Limited v WillsTimes Limited v Wills))

Types of OSS LicensesTypes of OSS Licenses

In the open source world, there are In the open source world, there are the following types of licenses: the following types of licenses: ““Proprietary Licenses” (i.e. not open Proprietary Licenses” (i.e. not open

source)source) Academic licensesAcademic licenses Reciprocal licensesReciprocal licenses

Open Source / Free SoftwareOpen Source / Free Software

Open Source DefinitionOpen Source Definition In essence: Allows free redistribution, provides In essence: Allows free redistribution, provides

source code, allows derived workssource code, allows derived works Free Software DefinitionFree Software Definition

The freedom to run the programThe freedom to run the program The freedom to study how the program works, The freedom to study how the program works,

and adapt it to your needsand adapt it to your needs The freedom to redistribute copiesThe freedom to redistribute copies The freedom to improve the program, and The freedom to improve the program, and

release your improvements to the publicrelease your improvements to the public

Academic LicensesAcademic Licenses

Basically, most academic licenses say Basically, most academic licenses say “you can do whatever you want” “you can do whatever you want” (including to use it in proprietary (including to use it in proprietary software)software)

Most include disclaimersMost include disclaimers Academic Licenses include BSD, MIT, Academic Licenses include BSD, MIT,

Apache License, Artistic License etc.Apache License, Artistic License etc. Note that the BSD license a few years Note that the BSD license a few years

ago had an “advertising clause”.ago had an “advertising clause”.

Reciprocal LicensesReciprocal Licenses

Basically, the idea is “if you modify Basically, the idea is “if you modify the code or create derivative works, the code or create derivative works, you must release them in the same you must release them in the same license”license”

Examples: GPL, LGPL, MPL, CPLExamples: GPL, LGPL, MPL, CPL

GPL is proposing a version 3! (I have GPL is proposing a version 3! (I have not looked at it yet)not looked at it yet)

Moliu “statistics” on OSS LicensesMoliu “statistics” on OSS Licenses

Linux – GPLLinux – GPL Mozilla (includes Firefox, Thunderbird) – Mozilla (includes Firefox, Thunderbird) –

MPL/GPL/LGPLMPL/GPL/LGPL GNOME – LGPL/GPLGNOME – LGPL/GPL Qt/KDE – GPLQt/KDE – GPL Apache – Apache LicenseApache – Apache License

GPLGPL

The (L)GPL is probably the most The (L)GPL is probably the most complicated (yet most commonly complicated (yet most commonly used) OSS license.used) OSS license.

Terms…Terms… Problems of GPLProblems of GPL

““Derivative works” too broad?Derivative works” too broad? ““Mere aggregation”?Mere aggregation”? ““Linking”?Linking”?

You should have some idea on this You should have some idea on this now…now…

Are EULA’s valid? Are shrink-wrap licenAre EULA’s valid? Are shrink-wrap licenses valid?ses valid?

Legality of “BT” and other file sharing Legality of “BT” and other file sharing programs?programs?

Legal Basis of Open Source Software LicLegal Basis of Open Source Software Licensesenses

Can Open Source Licenses be revoked?Can Open Source Licenses be revoked?

How to find the sources yourselfHow to find the sources yourself Law:Law:

Judiciary website Judiciary website http://www.judiciary.gov.hkhttp://www.judiciary.gov.hk Contains cases. (you can find the “BT” case there)Contains cases. (you can find the “BT” case there)

BLISS BLISS http://www.legislation.gov.hk/http://www.legislation.gov.hk/ Contains legislationContains legislation

HKLII HKLII http://www.hklii.orghttp://www.hklii.org Contains legislation and some casesContains legislation and some cases

Intellectual Property (adapted from Alan Tam’s Intellectual Property (adapted from Alan Tam’s presentation last year)presentation last year) Intellectual Property Department, HKSAR ( Intellectual Property Department, HKSAR (

http://www.info.gov.hk/ipdhttp://www.info.gov.hk/ipd ) ) Customs & Excise Department, HKSAR ( Customs & Excise Department, HKSAR (

http://www.info.gov.hk/customshttp://www.info.gov.hk/customs ) ) World Intellectual Property Organization ( World Intellectual Property Organization (

http://www.wipo.orghttp://www.wipo.org ) ) World Trade Organization ( World Trade Organization ( http://www.wto.orghttp://www.wto.org ) )

Issues for discussionIssues for discussion

Whether Intellectual Property laws (eg. Whether Intellectual Property laws (eg. Copyright, Patents, etc) are useful to socCopyright, Patents, etc) are useful to society? Or are they just allow corporations iety? Or are they just allow corporations (eg. Microsoft? MPAA? RIAA?) to gain a lo(eg. Microsoft? MPAA? RIAA?) to gain a lot of money?t of money?

Anything else?Anything else?

legal aspects of software sidney fong 2006-03-18

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