2008 07 30 legal issues in open source
DESCRIPTION
Slides used at presentation given at the 2008-07 Palmetto Open Source Software Conference - Legal Issues in Open Source: Patents, Trademarks, Copyrights, and LicensesTRANSCRIPT
Legal Issues in Open Source:Patents, Trademarks, Copyrights and Licenses
Calhoun “Reb” ThomasThomas Law [email protected] 30, 2008
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Software Is Different
Software is the only type of property can can be protected by both copyright and patent law
Software is also normally protected by contract law (GPL, etc) and often by trade secret law (proprietary software)
The open source software model is the opposite of a trade secret
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Giving It Away?
Is giving software away a business model?Netscape browserFour Freedoms (not free beer)
To use for any purposeTo share with othersTo change as you wantTo share your changes
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Copyrights & Patents
Article I Section 8 of our Constitution provides that “The Congress shall have the power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”
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Copyrights In general, copyright law provides that
the author of a work has the exclusive right to use, distribute, modify and display the work
However, the copyright to a work belongs to an employer in the case of a “work made for hire”
Employees vs independent contractors
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Copyrights “Work made for hire” and the
independent contractor – get an assignment - not all works are covered
Copyright can last a long time! Life of the author plus 70 years Works for hire – lesser of 95 years after
publication or 100 years after creation
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Copyrights Expression vs idea “Copyleft” – a short way of trying to
describe what the GPL and other similar licenses do by contract
Copyleft depends on copyright The licenses permit a user to use,
modify and redistribute covered software on the same Copyleft terms
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Copyrights Digital Millennium Copyright Act (DMCA) Making or trafficking in software or
devices whose primary purpose is defeating technological measures that control access is illegal.
GPLv3 attempts to prevent GPLv3 covered software from being used to “lock-out” (DRM) other users
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Trademarks Trademarks are primarily governed by
Federal law States trademark law is usually not
important for software A trademark identifies the source of
origin of a product Example: Cuil for search engine and
advertising services (Gaelic word for both knowledge and hazel)
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Trademarks Arbitrary or fanciful marks are much
better than descriptive or generic marks Examples (good & bad):
RED HAT for software and services JAVA for software STARBUCKS for coffee BED & BATH for selling bed & bath items QUIK-PRINT for copying services
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Trademarks Merely registering a mark as a domain
name does not provide trademark rights Registering domain name involves
entering into a contract “The registrant... represents that ... the
selected domain name, to the best of the registrant's knowledge, does not interfere with or infringe upon the rights of any third party”
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Trademarks
If you are planning to bring a product or service to market, start as early as possible with your intent-to-use (ITU) trademark application
For example: Cuil, Inc. filed an ITU application on April 11, 2008 (they should have filed much earlier, but ...)
Madrid Protocol
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Patents Similar to Copyright law in that Patent
law is Federal law, states may not legislate in this area
A patent is an intangible form of personal property
Patents only have national effect Patent Cooperation Treaty (PCT)
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Patents Over 7.4 million utility patents have
been issued by the USPTO Tuesday the Patent Office issued
approximately 3,000 utility patents The Patent Office received almost
500,000 patent applications in 2007 Almost half are filed from other
countries
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Patents
Most recent patent issued yesterday
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Patents Granted to an individual or individuals
who invents or discovers a process (method), machine, article of manufacture, composition of matter, or improvement thereof
For software the focus is usually on a “process” or this is often called a “method” or “business method” patent
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Patents Must be new, useful and non-obvious to
one of ordinary skill in the art Must be an “invention” – not just an
idea – you need complete conception and reduction to practice
Patent is the opposite of a trade secret – must fully disclose the invention
Non-obviousness is key (peertopatent)
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Patents Utility and design patents The term of a utility patent ends 20
years after the date of application Term of design patent ends 14 years
after date of issuance Applications are typically published 18
months after filed - average patent takes about 2-4 years to issue
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Patents
Having an issued patent does not give the holder the “right” to actually make their claimed invention, but it does give them the right to exclude others from: making using selling offering for sale importing the invention
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Example of growing backlog
Recent news – Microsoft is sued for patent infringement by Gotuit Media Corp. for infringing 3 patents
U.S Patent No. 5,892,536 - Systems and Methods for Computer Enhanced Broadcast Monitoring, issued on April 6, 1999; U.S. Patent No. 5,986,692 - Systems and Methods for Computer Enhanced Broadcast Monitoring, issued on November 16, 1999; U.S. Patent No. 7,055,166 - Apparatus and Methods for Broadcast Monitoring, issued May 30, 2006
First one filed in 1996 only took about 2.5 years to issue Third one filed in 1999 took over 7 years to issue
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OSI List of Different Licenses Academic Free License 3.0 (AFL 3.0), Affero GNU Public License, Adaptive Public License, Apache Software
License, Apache License, 2.0, Apple Public Source License, Artistic license, Artistic license 2.0, Attribution Assurance Licenses, New and Simplified BSD licenses, Boost Software License (BSL1.0), Computer Associates Trusted Open Source License 1.1, Common Development and Distribution License, Common Public Attribution License 1.0 (CPAL), Common Public License 1.0, CUA Office Public License Version 1.0, EU DataGrid Software License, Eclipse Public License, Educational Community License, Version 2.0, Eiffel Forum License, Eiffel Forum License V2.0, Entessa Public License, Fair License , Frameworx License, GNU 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 Disclaimer, IBM Public License, Intel Open Source License, ISC License, Jabber Open Source License, Lucent Public License (Plan9), Lucent Public License Version 1.02, Microsoft Public License (Ms-PL), Microsoft Reciprocal License (Ms-RL), MIT license, MITRE Collaborative Virtual Workspace License (CVW License), Motosoto License, Mozilla Public License 1.0 (MPL), Mozilla Public License 1.1 (MPL), Multics License, NASA Open Source Agreement 1.3, NTP License, Naumen Public License, Nethack General Public License, Nokia Open Source License, Non-Profit Open Software License 3.0 (Non-Profit OSL 3.0), OCLC Research Public License 2.0, Open Group Test Suite License, Open Software License 3.0 (OSL 3.0), PHP License, Python license (CNRI Python License), Python Software Foundation License, Qt Public License (QPL), RealNetworks Public Source License V1.0, Reciprocal Public License, Reciprocal Public License 1.5 (RPL1.5), Ricoh Source Code Public License, Simple Public License 2.0, Sleepycat License, Sun Industry Standards Source License (SISSL), Sun Public License, Sybase Open Watcom Public License 1.0, University of Illinois/NCSA Open Source License, Vovida Software License v. 1.0, W3C License, wxWindows Library License, X.Net License, Zope Public License, zlib/libpng license
This is probably not all and there will be more coming
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Some of the Groups
Free Software Foundation (fsf.org) Software Freedom Law Center GNU.org Apache Software Foundation Mozilla Foundation Open Software Initiative FOSSBazaar.org
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Main Licenses
GNU General Public License (GPL) Lesser GPL Apache License Berkeley Software Distribution (BSD) Eclipse Public License (EPL) MPL (Mozilla or Microsoft?) Common PL and CDDL
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Open Source in Mobile Phones
LiMo Foundation says it will use the GPL, Mozilla and its own “Foundation Public License or FPL
Nokia -> Symbian Foundation – moving the Symbian mobile operating system to open source over the next 2 years using the EPL
Google (Android) using Apache License
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Final Thoughts
Affero – GPL for “software as a service” or SaaS
USPTO Peer Review Pilot (also known as PeerToPatent.org) extended & expanded to include business method patents
MPL can even mean the Microsoft Public License or Microsoft Reciprocal License (two OSI approved licenses)