open source power point review ppt 742

8/8/2019 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

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