open source power point review ppt 742
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Open Source
Software
Legal and Other Issues related to use
of Open Source Software ProductsExecutive Leadership Conference, Boston,Massachusetts, October 16, 2003
(revised January 20, 2004)
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Legal and Other Issues
Defining Terms Software as Intellectual Property
Proprietary Software Open Source Software
Freeware
Advantages and Disadvantages
Sharing Software within theCommonwealth
Best Value Procurement
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Defining Terms
Software as Intellectual Property
Proprietary SoftwareOpen Source Software
Freeware
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Software as IP
Software is valuable intellectual property
A software license is the contract between the
software owner and the licensee definingterms of use of software
Software owners also have enumeratedrights under the law to control the use anddistribution of their property (with few
exceptions) The Digital Millennium Copyright Act (DMCA)
and contract law typically protect softwareowners rights
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Typical Proprietary Software
License Fairly standard terms
Source code availability
Source code not provided - trying to figureout inner workings of software throughreverse engineering or decompiling ofoperating mode is forbidden; OR
Source code provided - may or may notinclude permission to create modificationsand enhancements
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Proprietary Software License
terms - Licensees Restrictions on dissemination. Licensee
and users strictly defined. Licensee has
no right to share with those not definedas licensee users in license;
Licensor indemnifies licensees againstthird party infringement claims;
Often, have to sign a new license eachtime new licensee obtains the code.
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Proprietary Software License
terms Warranty and SupportWarranties provided:
Defects in media and existence of viruses,
Trojan Horses, backdoors, etc;
Can negotiate for warranties re: meet
specifications in product documentation
Maintenance and support termsincluded (although may be in separate
document).
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Open Source Software Main
Features Non-proprietary software which may or may
not be used commercially;
Typically licensed under an Open Sourcelicense (not given away)
License terms differ from proprietary software
license terms
Source code is generally made available
Legal restriction on reverse engineering (under the
DMCA) do not apply.
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Open Source Software Licenses
- Source Code Source code to original product always provided;
Licensee can modify or enhance source code
(create derivative works) or include source codewith other license types (create larger works);
Licensee may be required to share modificationswith the world (in source and/or binary form), butnot necessarily;
Licensee may be prohibited from chargingroyalties for derivative and larger works, but notnecessarily.
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Open Source Software License
Warranties and SupportGenerally, software provided AS-IS
with no warranties, warranties excluded;
No indemnification;
No maintenance or support.
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The GNU General Public
License (GPL)
No standard open source license, but GPLmost widely used (roughly 85% of open
source software); Terms include:
User freedom to distribute and/or modify;
Requirement that original and modified source code bealways made available to the world under the terms of
the original license; Must retain copyright notices and warranty disclaimers;
Does not include grant of patent licenses;
Extremely viral license.
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The Mozilla Public License
Developed by Netscape for the Mozillabrowser
Terms include: Very similar to the GPL but,
Can charge royalties for modified versions;
Can include source code within larger works licensed underdifferent license types, thus license does not infect all
downstream projects; Must retain copyright notices and warranty disclaimers;
May provide additional warranties to downstream users butmay have to indemnify original developer for any claimsarising as a result;
Includes grant patent licenses;
Less viral than the GPL.
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The IBM Public License
Terms include: User freedom to distribute and/or modify;
No requirement for source code availability indownstream distribution;
The program can be distributed in executable formthus allowing downstream users to develop, sell,and install customized software packages without
having to make all customizations available to theworld;
Must retain all copyright notices and warrantydisclaimers;
Includes grant of patent licenses.
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Open Software License
Terms include: User freedom to distribute and/or modify;
Viral license, source code is always madeavailable to the world;
Must retain copyright notices and warranty
disclaimers;
Requires indemnification for attorneys feesincurred as a result of potential claims or litigation.
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The Apache Software License
Governs the Apache web-server software.
Terms include:
User freedom to distribute and/or modify;
No requirement for source code to be made
available to the world in downstream distribution;
Must retain all copyright notices and warranty
disclaimers; Not a viral license.
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Summary: Existing open
source licenses Terms will always include preservation of
copyright notices and warranty disclaimers;
Some licenses will be extremely viral: thusprohibiting any other type of downstreamlicensing apart from under the terms of theoriginal license;
Some with permit inclusion of code withinproprietized programs;
In some instances, provision of additionalwarranties and support will trigger
indemnification provisions to the originaldevelo er.
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Online resources
For a comprehensive chart describing
and comparing open source licenses
see www.mass.gov/itd/legal/quickrefchart.xls
For full open source license texts seewww.opensource.org/licenses/index.php
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Freeware
Freeware is free software, software that the
licensee can use without paying a license fee.
Free software may be proprietary software forwhich source code is not provided (Adobe
Acrobat) or open source software (Linux).
Note: Not all open source software is free; not all
proprietary software is licensed for a fee.
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Advantages: Proprietary
Software Indemnification;
Maintenance and support;
Licensee doesnt have to have open sourcesavvy staff;
Licensees rights if: media is defective;
software contains viruses, backdoors, etc.; product fails to meet written technical/business
specifications.
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Disadvantages: Proprietary
Software COST!
License fee
Product bundlingexample: Microsoft office. Licensee cannot modify or enhance the code;
Often not built to open standards, leading tointeroperability problems;
Shut off from continuing development andinformation sharing in open sourcecommunity;
Some proprietary code is not as good as its
open source counterparts.
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Advantages: Open Source
License PRICE: Generally no or low license fees;
Availability of source code coupled with
permission to make modifications;Access open source development
community, which may be very active withrespect to code used. Continuing
improvement; outstanding development; More likely to be built to open standards, so
interoperable with other open standardssystems.
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Disadvantages: Open Source
Licensing No indemnification; if a third party claims that
licensee is using code that the third party
developed, the licensee has no one to pay hislegal fees and damage award (SCO v. IBM);
No maintenance and support (unlesspurchased separately);
No warranties regarding media, viruses, andperformance;
Staff must be open source savvy;
License terms are NOT standard: thus
important to pay close attention to terms.
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Note on Disadvantages: Open
Source Many disadvantages of open source
licensing can be addressed by
procuring open source software througha third party vendor that will provide
maintenance, support, additional
warranties, etc.
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Sharing Proprietary Software
Within the CommonwealthAgencies can share proprietary
software ifproprietary license names
the Commonwealth, rather than agency,as licensee and other license restriction
terms are satisfied. Source code
licensed under a proprietary license canonly be shared if proprietary license
permits.
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Sharing Open Source Software
within the CommonwealthAgencies can share source code for open
source software subject to the terms of the
license under which it was obtained. Some open source licenses allow for portions ofopen source code to be included within proprietarysoftware which may as a result prohibitinteragency sharing.
Always refer to the terms of the license beforeconsidering sharing open source softwarewithin your organization.
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Additional Note on Sharing
Software:Agencies can share source code for software
that they own, based on a careful,
documented determination regardingownership.
Agencies should not share software until
agency counsel has reviewed the legal
status of the software that is to be shared.
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Best Value Procurement
Executive Department agencies must
engage in best value competitive
procurement for procurements overcertain dollar amount.
Best value would require you to assess
all of the risks and benefits surroundingsoftware acquisition.
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Online Resources for Best
Value Procurement The Commonwealth has announced new
standards for information technology
acquisitions. The new policy is described in threerelated documents that can be accessed throughthe links below:
The Commonwealths Open Standards policy:
http://www.state.ma.us/itd/openstandards.htm The Commonwealths IT Acquisition policy:
http://www.state.ma.us/itd/ITAcquisitionPolicy.htm
The Commonwealths Technical Reference model:http://www.state.ma.us/itd/techrefmodel.htm
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Take Home Message:
Before embarking on use of open source products:
Educate your staff about the difference between
proprietary, open source, and freeware software;
Educate yourself about the legal, business and
technical risks involved in using open source software,
and balance them in making a business decision as to
what kind of software to use.
Procure for best value, taking into account the risksand benefits of using proprietary vs. open source
software along with other business and technical best
value criteria
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Easy Access to Online
Resources Easy Access to the ITD web page on
open source software licensing is
available at www.mass.gov/itd/legal.
Easy Access to a comprehensive chart
describing and comparing Open Source
licenses is available atwww.mass.gov/itd/legal/quickrefchart.xls .
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Contact information
Linda Hamel, General Counsel
Information Technology Division
Commonwealth of Massachusetts
Some of the information included in this presentation
was provided by:
Thomas C. Carey, Esq., Bromberg & Sunstein, LLP,
Alba Bozo, HLS 04