open source licensing powerpoint presentation

7/31/2019 Open Source Licensing Powerpoint Presentation

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Open Source Licensing

An Introduction


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Presentation outline:

Basic intellectual property law

(Very) basic software

History and philosophy of open source General outline of types of open source licenses

Analysis of individual licenses

Risks and benefits of open source The open source idea in other contexts

Conclusion


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Part I

Basic Intellectual

Property Law


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What is intellectual property?

Intellectual property refers to creations of the

mind: inventions, literary and artistic works, and

symbols, names, images, and designs used incommerce. What is Intellectual Property?, World Intellectual Property Organization (WIPO),

http://www.wipo.int/about-ip/en/


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There are three types ofintellectual property

1. Expressions

2. Ideas

3.Unique commercial identifiers


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Copyright Law

Protecting

Expressions


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What is the Legal Basis ofCopyright Law?

U.S. Const. Art. 1 8 Cl. 8.

The Copyright Act, 17 U.S.C. 101 et

seq.

The Berne Convention for the Protectionof Literary and Artistic Works


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What is copyrightable?

[O]riginal works of authorship fixed in any

tangible medium of expression, now known or

later developed, from which they can beperceived, reproduced, or otherwise

communicated, either directly or with the aid of

a machine or device. 17 U.S.C. 102.


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How does a work becomecopyrighted?

As soon as a work is fixed in atangible medium, copyright

subsists.


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What protections does copyrightlaw provide? 17 USC 106

A copyright holder has the exclusive right:

To make copies of the work

To prepare derivative works To distribute copies of the original work or

derivative works

For certain types of works, to perform the work For certain types of works, to perform the work


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Copies

The original is the first copy

Any duplicate is a copy

All instances of a software program arecopies

All open source licenses grant the right to

make copies There is no limitation on the means made

to make a copy


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Derivative Works

[A] work based upon one or more

preexisting works, such as a translation . .

. or any other form in which a work may berecast, transformed, or adapted. 17

U.S.C. 101.


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Collective Works

A work . . . in which a number of

contributions, constituting separate and

independent works in themselves, areassembled into a collective whole. 17

U.S.C. 101.


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Joint Works

A joint work is a work prepared by two or

more authors with the intention that their

contributions be merged into inseparableor interdependent parts of a unitarywhole. 17 U.S.C. 101.


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Copyright Chain of Title

The copyright in a compilation or derivative

work extends only to the material contributed by

the author of such work, and does not imply anyexclusive right in the preexisting material. Thecopyright in such work is independent of, anddoes not affect or enlarge the scope, duration,

ownership, or subsistence of, any copyrightprotection in the existing material. 17 U.S.C. 103.


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Copyright Exceptions for Software

The owner of a copy has a right to make acopy; would otherwise be useless

The owner of a copy has a right to make acopy for archival purposes.


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Patent Law

Protecting Ideas


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What is the legal basis for patentlaw?

U.S. Const. Art. 1 8 Cl. 8.

The U.S. Patent Act, 35 U.S.C. 1 et

seq.


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What is patentable?

[A]ny new and useful process, machine,

manufacture, composition of matter, or

any new and useful improvement thereof.17 U.S.C. 101

Must be novel, useful, and non obvious

and be patentable subject matter.


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How does a work becomepatented?

Obtaining a patent is difficult and time consuming.An inventor must file a patent application with the

patent office in every country in which he or shewishes to have a patent. The patent may be later

overturned by a court if it is insufficient.


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What protections does patent lawprovide?

Gives patent holder right to exclude others from:

Making anything with his or her invention

Using anything embodying his or her invention Selling or offering to sell anything embodying his

or her invention

Importing anything embodying his or herinvention


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Copyright Exceptions for Software

Owner of a copy has a right to make acopy; would otherwise be useless

Owner of a copy has a right to make acopy for archival purposes. See Rosen at25-26


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Patent Chain of Title

Only one patent owner for any work

There is no open source definition for

patent licenses


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Assigning Ownership

Transferring ownership of a copyright,patent or trademark itself, not merely

rights associated with it Not usually helpful for open source; an

open source license generally provides

the same protections that an assignmentof ownership would.


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Trademarks

Protecting unique commercialidentifiers


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What is the legal basis fortrademark protection?

The U.S. Trademark Act, 15 U.S.C. 1501 et seq.

The common law


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What is a trademark?

The unique identifying mark thatdistinguishes the goods or

services of one merchant fromthose of another.


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What protections does trademarklaw provide?

Keeps other merchants from usinganother merchants unique identifying

mark.


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Licenses


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What is a license?

Grants permission to use a copyrighted work

Can grant any or all of the rights associated with

copyright Can impose other restrictions, such as type or

place or usage, or duration of the license

Does not transfer ownership of the copyright


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Contracts

Must have three things:

- Offer

- Acceptance

- Consideration


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Part II

Software Basics


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Software

[A] general term used to

describe a collection of

computer programs, procedureand documentation that perform

some tasks on a computersystem. Wikipedia.


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Hardware

The physical parts of acomputer, as opposed to

software, which exists inside thecomputer

Th t t f d f


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There are two types of code forsoftware

Object code

Source code


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Source Code

Programming statements created by aprogrammer. Kennedy at 2

In human readable form Easy to modify

Most license agreements do not allow for

access to source code Programmers use a compiler to turn it into

object code


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Object Code

Also called executable code

The instruction sequence for the

computer processor. Kennedy at 2.

Not human readable

Most software is distributed in object code

form


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Part III

Open Source

Software


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What is open source software?

Open source software is software that issubject to an open source license.

An open source licensor must give thelicensee certain rights to be consideredopen source

Basically, the licensee has the right to use,modify or distribute the software, and theright to access the source code.


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Is it the same as free software?

Generally yes

Free software was the original name

Open source began being used to allaythe concerns of proprietary softwarecompanies that were thinking of utilizing or

developing free software

P i t O S


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Prominent Open SourcePrograms

Apache Web Server

Mozilla and Firefox web browsers

Linux

BIND

MySQL


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Prominent Open Source Vendors

IBM

Red Hat

Sun Microsystems


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The History of Open Source

Richard Stallman, the GNU operating System,the Free Software Foundation, and the GeneralPublic License (GPL)

Bill Joy, UNIX and the Berkeley SoftwareDistribution License (BSD)

Open source comes of age Linux, Mozilla,

Apache et al., and the corporate licenses The Open Source Initiative


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What are the OSI and the OSD?

The Open Source Initiative (OSI) is the de factostandards body for open source software. Itdetermines what open source means, andapproves licenses as being open source

The Open Source Definition (OSD) is a set ofcriteria that a license must conform to to be

considered open source. The OSI maintains thedefinition and changes it from time to time.


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The Open Source Definition

1. Free Redistribution. The licenseshall not restrict any party from selling or

giving away the software as a componentof an aggregate software distributioncontaining programs from several different

sources, The license shall not requireroyalty or other fee for such sale.


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2. Source Code. The program must include sourcecode, and must allow distribution in source code as wellas compiled form. Where some form of a product is not

distributed with source code, there must be a wellpublicized means of obtaining the source code for nomore than a reasonable reproduction cost, preferably,downloading via the Internet without charge. The sourcecode must be the preferred form in which a programmer

would modify the program. Deliberately obfuscatedsource code is not allowed. Intermediate forms such asthe output of a preprocessor or translator are notallowed.


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3. Derived Works. The license mustallow modifications and derived works,

and must allow them to be distributedunder the same terms as the license of theoriginal software.


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4. Integrity of the Authors Source Code.The license may restrict source-code frombeing distributed in modified form onlyif the

license allows the distribution of patch files withthe source code for the purpose of modifying theprogram at build time. The license mustexplicitly permit distribution of software built from

modified source code. The license may requirederived works to carry a different name orversion number from the original software.


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5. No Discrimination Against Persons orGroups. The license must not discriminateagainst any person or group of persons.

6. No Discrimination Against Fields ofEndeavor. The license must not restrictanyone from making use of the program in aspecific field of endeavor. For example, it may

not restrict the program from being used in abusiness, or from being used in geneticresearch


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7. Distribution of License. The rightsattached to the program must apply to all

to whom the program is redistributedwithout the need for execution of anadditional license by those parties.


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8.License Must Not Be Specific to a Product.The rights attached to the program must notdepend on the programs being part of a

particular software distribution. If the program isextracted from that distribution and used ordistributed within the terms of the programslicense, all parties to whom the program is

redistributed should have the same rights asthose that are granted in conjunction with theoriginal software distribution.


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9. License Must Not ContaminateOther Software. The license must not

place restrictions on other software that isdistributed along with the licensedsoftware. For example, the license mustnot insist that all other programsdistributed on the same medium must beopen-source software.


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10. License Must Be TechnologyNeutral. No provision of the license may

be predicated on any individual technologyor style of interface.


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Part IV

Open Source Licenses In

General

There are several types of


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There are several types ofsoftware licenses:

The GPL, or copyleft family of licenses

The BSD/academic family of licenses

The Mozilla/corporate type licenses Other open source licenses

Traditional proprietary licenses

Shareware/freeware Public domain (not a license, but a way of

accessing software)


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The GPL family of licenses

Basic rights under the GPL access tosource code, right to make derivative

works Copyleft

The Library or Lesser General Public

License


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The BSD family of licenses

Same basic rights as GPL

No copyleft provisions, i.e. licensees can

take software licensed under the BSDprivate

Can re-release software under a different

license


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Mozilla/corporate licenses

More expertly drafted

Serve as a model for later commercial

licenses Different provisions on relicensing

No copyleft


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Other Open Source Licenses

There are over fifty (50) other open sourcelicenses

The IBM Common Public License, the MITX license, and the Artistic License areexamples

The open source community discourages

writing ones own license in order toprevent license proliferation


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Shareware/Freeware

May be free or may not

Licensor does not provide the right to

make derivative works or give access tosource code


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Public Domain

Author retains no copyright rights if software is inthe public domain

Open source software authors retain copyright

rights Open source licenses contain restrictions, just

different ones than licensees may be used to

The restrictions in open source licenses arebased on copyright law and depend on it fortheir effectiveness.


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Part V

Some Specific Open

Source Licenses

The GNU General Public License


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The GNU General Public License(GPL)

Part license, part manifesto

Reciprocity/Copyleft

Purpose is to increase amount of publiclyavailable software and ensurecompatibility

Licensees have right to modify, use ordistribute software, and to access thesource code


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Problems with the GPL

Linking to GPL programs

No explicit patent grant

Does no discuss trademark rights

Does not discuss duration

Silent on sublicensing

Relies exclusively on license law, notcontract

The Library or Lesser General


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The Library or Lesser GeneralPublic License (LGPL)

Written to deal with the linking problem inthe GPL discussed above

Provides that programs that merely link toa program in a library are not subject tocopyleft

If licensee makes a derivative work of thelibrary, copyleft applies

The Berkeley Software


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The Berkeley SoftwareDistribution License (BSD)

No copyleft/reciprocity provision

Does not mention patents

Other BSD type academic


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Other BSD type academiclicenses

MIT

Apache

Artistic License


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The Mozilla Public License (MPL)

Professionally written

Includes an explicit patent grant, including

a reciprocal grant for contributors Includes many specific provisions that are

absent in the GPL and BSD but which are

often in licenses.

The Common Public License


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The Common Public License(CPL)

Developed and owned by IBM

Includes a limited patent license

Contains a reciprocity provision Contains a patent defense provision

Indemnity provision

The Open Source License and


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The Open Source License andthe Academic Free License

Mirror images of each other, except theAFL does not include reciprocityprovisions and the OSL does

Addresses aspects of copyright left out byother licenses, such as scope andduration

Grants a patent license Retains name and trademark of licensor

Multiple Licensing and other


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Multiple Licensing and otherstrategies

Microsofts Shared Source License

Public Source

Multiple Licensing Licensing in phases


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Part VI

Risks and Benefits of

Open SourceSoftware


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Legal Risks

Intellectual property infringement

No warranties

Copyleft

Copyright attribution and notice requirements Enforcement

Ambiguous license terms

Consumer protection laws

License management Licenses have not been construed by an American Court

Licenses may be revocable

Uncertain interpretation

Forking (not a legal risk, but still a risk)


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Benefits

Increased user base

Longer useful life

Increased stability Security

Scalability

Innovation Cost

Adaptability

How do licensors make money


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How do licensors make moneywith open source software?

Usually by providing other services, such as:

Support

Training Customization

Integration

Certification Offering warranties


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Part VII

The Open Source

Idea in OtherContexts


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Open Content

Describes any kind of creative work

published in a format that explicitly allows

copying and modifying of its information byanyone, not exclusively by a closedorganization, firm, or individual. FromWikipedia, the worlds largest open source project.


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Creative Commons

Creative Commons Licenses

Baseline rights

Various Licenses Creative Commons International

Other Open Content


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pOrganizations

Creative Commons Internationalhttp://creativecommons,org/international/

Science Commons (a Creative Commons Project)

http://sceincecommons.org Open Educational Resources Commons (OER)

http://www.oercommons.org/

Open Content (http://www.opencontent.org/

For more see the Google Directory,http://www.google.com/Top/Computers/Open_Source/Open_Content/(providing a list of websites dedicated toopen source)

Other open content licenses
http://creativecommons%2Corg/international/http://sceincecommons.org/http://www.oercommons.org/http://www.opencontent.org/http://www.google.com/Top/Computers/Open_Source/Open_Content/http://www.google.com/Top/Computers/Open_Source/Open_Content/http://www.google.com/Top/Computers/Open_Source/Open_Content/http://www.google.com/Top/Computers/Open_Source/Open_Content/http://www.opencontent.org/http://www.oercommons.org/http://sceincecommons.org/http://creativecommons%2Corg/international/


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pinclude:

GNU Free Documentation License

Open Content License

Free Art License Open Game License

October Open Game License

Considerations before licensing with Creative


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Considerations before licensing with CreativeCommons or other open content license

Make sure you understand what rights youare retaining and which ones you are

giving up Make sure you own the copyright

Make sure your work is subject to

copyright law Be specific about what you are licensing

(creative commons FAQs)


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Part VII

Further Reading


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LAWRENCE ROSEN , OPEN SOURCE LICENSING: SOFTWARE FREEDOMAND INTELLECTUAL PROPERTY LAW (Prentice Hall Professional andTechnical Reference 2004), available athttp://www.rosenlaw.com/oslbook.htm. The best book on open sourcelicensing. Gives an in-depth but not overly detailed overview of issues

regarding open source licensing. Includes the text of some o the morepopular open source licenses and point-by-point analysis of some of themost important licenses.

http://www.opensource.org - the online home of the Open Source Initiative,the de facto standards body of the open source movement. Provides a listof and the text of all OSI approved licenses. Sets out the open source

principles, answers frequently asked questions, and provides helpful links Dennis M. Kennedy, A Primer on Open Source Licensing Legal Issues:

Copyright, Copyleft and Copyfuture, (2001), available athttp://www.denniskennedy.com/opensourcedmk.pdf .

http://creativecommons.org - the open source idea in non software contexts
http://www.rosenlaw.com/oslbook.htmhttp://www.opensource.org/http://www.denniskennedy.com/opensourcedmk.pdfhttp://creativecommons.org/http://creativecommons.org/http://www.denniskennedy.com/opensourcedmk.pdfhttp://www.opensource.org/http://www.rosenlaw.com/oslbook.htm


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On the business issues:

Eric S. Raymond, The Magic Cauldron, availableathttp://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/, (discussing how

to make money on open source) David A. Wheeler, Why Open Source

Software/Free Software (OSS/FS, FLOSS, ofFOSS)? Look at the Numbers!,available at

http://www.dwheeler.com/oss_fs_why.html#history (reviewing literature on and discussing thebenefits of open source versus proprietarysoftware)
http://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/http://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/http://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/http://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/http://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/http://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/http://www.catb.org/~esr/writings/magic-cauldron/magic-cauldron.html/


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Lists of open source projects

http://freshmeat.net

http://sourceforge.net

On open source software
http://freshmeat.net/http://sourceforge.net/http://sourceforge.net/http://freshmeat.net/


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pgenerally

Eric S. Raymond, The Cathedral and theBazaar: Musings on Linux and Open

Source by an Accidental Revolutionary(OReilly Media 2001), available athttp://www.catb.org/~esr/writings/cathedral-bazaar/
http://www.catb.org/~esr/writings/cathedral-bazaar/http://www.catb.org/~esr/writings/cathedral-bazaar/http://www.catb.org/~esr/writings/cathedral-bazaar/http://www.catb.org/~esr/writings/cathedral-bazaar/http://www.catb.org/~esr/writings/cathedral-bazaar/


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Part IX

Conclusion


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Like anything else, open source hasboth risks and benefits (for licensors

and licensees)

They are neither an unmitigated good, norparticularly dangerous. Before using them, either

to license your work or accepting work subject tothem, you should evaluate your own situation andmake an individual determination. Generalinformation cannot take into account your

r i l r ir m n


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And on a similar note,remember . . .

This presentation is not legal advice. Legal advice canonly be provided with regards to specific factual

circumstances in the context of an attorney-client

relationship. This presentation does not establish anattorney-client relationship. If you have any furtherquestions that you are unable to answer yourself afterreasonable efforts contact the Department of Legal

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