( )Main IP issues concerning OSS

Dr Andrés Guadamuz

( )ApologiesLöki http://www.flickr.com/photos/tyltu/4041895378/

( )Another story

( )Another story

( )Another story

( )Another story

( )Legal conservation areas

By howardignatius http://www.flickr.com/photos/howardignatius/3492077372/

( )Self-organization

!

( )Creative Commons

Attribution: Every CC licenses allows the world to copy and distribute a work provided that the licensee credits the creator/licensor.

The author may include these other elements:

NonCommercial: licensees can use the work for non-commercial purposes.

No Derivatives: the work cannot be modified.

ShareAlike: the work can be copied, modified and distributed if the author releases the derivative under the same license.

( )

( )

( )Human-ReadableCommons Deed

Lawyer-ReadableLegal Code

Machine-ReadableDigital Code

<a rel="license" href="http://creativecommons.org/licenses/by-sa/3.0/"><img alt="Creative Commons License" style="border-width:0" src="http://i.creativecommons.org/l/by-sa/3.0/88x31.png" /></a><br />This work is licensed under a <a rel="license" href="http://creativecommons.org/licenses/by-sa/3.0/">Creative Commons Attribution-ShareAlike 3.0 Unported License</a>.

( )LicensesBY Attribution

BY-NC Attribution - Non Commercial

BY-SA Attribution - Share Alike

BY-ND Attribution - No Derivatives

BY-NC-SA Attribution - Non Commercial - Share Alike

BY-NC-ND Attribution - Non Commercial - No Derivatives

)( FLOSS License ecology

( )Spectrum of rights

( )Legal issues

⊛ Licenses, licenses, licenses

⊛ Patents

⊛ Contract formation

⊛ Third party rights

⊛ Enforcement

( )Common elements

⊛ Licenses allow users to perform acts that they would otherwise would not be allowed to.

⊛ Some rights reserved.

⊛ Grant of license allows installation, use, reuse, publishing, decompilation, interoperability, etc.

⊛ Access to the source code is a must.

( )Licenses

⊛ Open Source Initiative (OSI) lists 69 approved licenses.

⊛ In 2007 I conducted an informal survey finding 245 licenses.

⊛ Black Duck database lists now over 1000 licenses.

( )OSI categories

⊛ License that are popular and widely used or with strong communities

⊛ Special purpose licenses

⊛ Other/Miscellaneous licenses

⊛ Licenses that are redundant with more popular licenses

⊛ Non-reusable licenses

⊛ Superseded licenses

⊛ Licenses that have been voluntarily retired

⊛ Uncategorized Licenses

( )Rosen’s classification⊛ Academic licenses: Academic licenses

place no requirements whatsoever on the license user.

⊛ Reciprocal licenses: Require some form of reciprocity, usually that any derivatives of the software be released under the same license.

⊛ Standard licenses: They seek to create a base standard of software and documentation.

⊛ Content licenses: Protect non-software elements, such as pictures and music.

( )Academic (BSD)

⊛ Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

⊛ Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

⊛ Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

⊛ Neither the name of the <ORGANIZATION> nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

( )Copyleft

⊛ Actually, it is not the opposite of copyright, in fact, it uses copyright for protection.

⊛ Copyleft is a licensing method by which the work is protected by copyright, but it will have a specific clause that allows a work to remain “open” through a share-alike or viral clause.

⊛ Openness in this context means that the original work and whatever derivatives must remain available to the public in one way or another.

( )General Public License (GPL)

⊛ Allows licensees to use and distribute the software.

⊛ Contains “viral” element, all works that are derived from the license must be distributed with the GPL.

⊛ The “Lesser General Public License” contains the same terms as the GPL, but gives additional permissions to those who wish to re-distribute code.

( )Copyleft clause GPL v2

⊛ “2(b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.”

( )GPL v3

⊛ It is longer, and more complex than its predecessor.

⊛ Take-up by developers has been slow.

⊛ Boosted viral clause (it now may apply to other software included with the GPL software).

⊛ Restricts the use of Technical Protection Measures.

⊛ Includes a patent licence.

( )Top 10 licenses (2013)Rank License %

1 GNU  General  Public  License  (GPL)  2.0 32.65%

2 Apache  License  2.0 12.84%

3 GNU  General  Public  License  (GPL)  3.0 11.62%

4 MIT  License 11.28%

5 BSD  License  2.0 6.83%

6 ArFsFc  License  (Perl) 6.27%

7 GNU  Lesser  General  Public  License  (LGPL)  2.1 6.19%

8 GNU  Lesser  General  Public  License  (LGPL)  3.0 2.62%

9 Eclipse  Public  License  (EPL) 1.61%

10 Code  Project  Open  1.02  License 1.33%

( )New copyleft clause

⊛ “5.c) You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it.”

( )Enforcement

⊛ German court cases (GPL validity):

⊛ Sitecom (Munich)

⊛ Fortinet (Munich)

⊛ D-Link (Frankfurt)

⊛ SCO v IBM (copyright infringement)

⊛ Jacobsen v Katzer (contract formation)

⊛ Wallace v IBM (competition law)

( )Creative Commons Cases

⊛ Curry v. Audax (Netherlands)

⊛ Pontevedra ruling (Spain)

⊛ Case 09-1684-A (Belgium)

⊛ Avi Re'uveni v. Mapa inc. (Israel)

⊛ Gerlach v die-rechte.info (Germany)

( )GPL v3 patent license grant

⊛ “Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.”

( )InteroperabilityAlexandre Dulaunoy http://www.flickr.com/photos/adulau/3011878917/

( )Distribution chain

Author / Owner

Licensee / Derivative

Licensee / User

Licensee / Distributor

Derivative User User Distributor

Derivative User

( )Actual chains

Author

( )Incompatibility issues

⊛ GPL may not be compatible with your licensing strategy.

⊛ Case Scenario 1: Using GPL’d software internally and to produce commercial applets does not require GPL redistribution.

⊛ Case Scenario 2: Using GPL’d code, changing it as part of a proprietary package requires that the software should be released under GPL.

( )Alpha!

Gamma!

Beta!

GPL

Third party rights

⊛ Alpha creates work, licenses with OA licence to Beta. Beta licenses work to Gamma, which modifies it and sells it commercially.

⊛ Can Alpha sue Gamma?

⊛ Does Alpha have third party rights?

( )Alpha!

Gamma!

Beta!

Infringement

Copyright infringement

⊛ Same case as before

⊛ Can Alpha sue Gamma for copyright infringement?

⊛ Seemingly yes if copying is substantial.

⊛ Tests for originality apply.

⊛ Some OS projects ask creators to assign copyright.

( )Contributor agreements

⊛ Standardized contributory agreements allow developers who contribute to a FOSS project to submit their contributions and either assign copyright, or grant an exclusive license.

⊛ Contributor agreements provide confidence that the guardian of a project’s output has the necessary rights over all contributions to allow for distribution of the product.

( )Signature formalities

⊛ Does copyright law allow assignment (transfer) of rights?

⊛ Does copyright law allow exclusive licenses?

⊛ If yes to both questions, are there any formal requirements? (writing, signature)

⊛ If yes, can those requirements be met by electronic means?

( )Concluding...

( )Thank youandres@metaverseconsulting.com

@technollama on Twitter

CC Attribution-ShareAlike