Open source legal intro (01-06-2009)

2

Open SourceLegal Intro

Advokat Martin von Haller Groenbaek

Partner, Bender von Haller Dragsted

Eclipse Banking Day CopenhagenJune 1st 2010

tirsdag den 1. juni 2010

Martin von Haller Grønbæk

– Attorney-at-law, Bender von Haller Dragsted– Co-founder, Open Source Vendors Ass. (OSL)– Editorial board IFOSSLR– Co-founder, Creative Commons DK– Co-founder, Danish Internet Society Chapter

2


3


– http://www.bvhd.dk– http://openlife.dk– http://www.vonhaller.dk– http://www.linkedin.com/in/vonhaller– http://www.23hq.com/mhg– http://www.slideshare.net/vonhaller– http://www.facebook.com/vonhaller

– [email protected]– [email protected]– [email protected]


http://www.bvhd.dk

http://www.bvhd.dk

http://suse.groenbaek.net/openlife

http://suse.groenbaek.net/openlife

http://www.vonhaller.dk

http://www.vonhaller.dk

http://www.linkedin.com/in/vonhaller

http://www.linkedin.com/in/vonhaller

http://www.23hq.com/mhg

http://www.23hq.com/mhg

http://www.slideshare.net/vonhaller

http://www.slideshare.net/vonhaller

http://www.facebook.com/vonhaller

http://www.facebook.com/vonhaller

mailto:[email protected]







–Legal500: “At IT boutique Bender von Haller Dragsted, Martin von Haller Grønbæk is the Danish expert on open source and emerging issues around Web 2.0 and internet law.”

4


http://www.legal500.com/firms/15610/offices/16182

http://www.legal500.com/firms/15610/offices/16182

3

Agenda

• FLOSS key concepts

• Trademarks and OSS

• Copyright and OSS

• Patents and OSS

• OSS Licenses

• Copyleft

• Eclipse Public License


Communisme


Communism ?


Cancer?


Free vs. Opentirsdag den 1. juni 2010

FLOSS


Free Software ideology

• “All software should be free”

• You get the four freedoms

• You shall preserve these freedoms

• So when you redistribute, copyleft secures that the next persons gets the same freedoms

12


“Free not as in free beer but as in

freedom”


Open source initiative


Open Source principles

• Free redistribution

• Source code

• Derived work

• Integrity of The Author's Source Code

• 5-10: Non-discrimination

15


Open Source negatives

• “AS IS”

• No warranties

• No support

• No “corporate backing”

• Plenty of business opportunities

• For everyone

• Reality: The same applies for “closed source” software

16


No right to contribute

• The project owner does not have to accept any contribution

• Trademarks matters

• Liability challenges

• License petrification

• Ownership assignement

• The right to fork!

17


Comply or don’t use


Credit where credit is due!


Copyright● The programmer or the producer owns the

software

● Property rights are limited

● Copyright is limited in time● The user is a user not an owner

● The license is an agreement not a law

● The license grants positively defined user rights.

● All residual rights belongs to the licensor

● Without copyright no licenses


Open source and

Trademarkstirsdag den 1. juni 2010

Open source and Patents


Patents• “A set of exclusive rights granted by a state to

an inventor or his assignee for a limited period of time in exchange for a disclosure of an invention”

• FSF: “a patent on any performance of a computer realised by means of a computer program"

• Licensor shall not restrict use by patents (downstream)

• OSS licensee shall not claim patents against licensor or sublicensee (upstream and downstream)

23


Patent trolls


OSS Licenses

• Academic or permissive licenses–Apache License v2–MIT License–New BSD license

25


OSS Licenses cont.• Copyleft, reciprocal or

hereditary licences–Weak copyleft

•Artistic license v1•Eclipse Public License•Mozilla Public License v.1.1

–Strong copyleft•GNU GPL v1-3•GNU LGPL v1-3

26


Use decides types of OSS license

• Are you planning to modify?

• Will you only use internally?

• Or are you going to distribute

• Permissive licenses generally don’t pose problems

• Distribution and copyleft does

– How is the code structured?– Is the code modified?

– Are there multiple licenses?

27


Copyleft - the basics

• You don’t have to redistribute or distribute

• (Exception: “written offer valid for any third party” in GPL, v. 2)

• Comply or cease use, or call back distribution

• Make combined program, including modifications and otherwise closed code available under GPL (or compatible licens)

28


GPL is a

here-ditary

License!tirsdag den 1. juni 2010

Derivative work• A work based on one or more pre-

existing works• Improvement, translation, correction• Not collective work • Modifications are copyrighted

themselves• Very few court cases• GPL: Combinations

31


Combination• Combination of code into a whole

• NB: All combinations are permitted and “private” combinations have no restrictions

• Mechanism of communication

• Semantics of the communication

• Output not covered

• (Exc: GPL program copies text into output)

• Output of language interpreter

• (Exc: “bindings” interpreter to program)

• Library is under GPL, program is not

• Program is under GPL, module is not

32


Combination cont.• CMS Templates

– Exc: Javascript calls

• Microsoft Visual C++ (or Visual Basic) DLLs

• Plug-ins under a GPL program

– dynamically linked plug-ins

– fork and exec to invoke plug-ins

• System library exception

• Aggregate work is not combined work

• Linking exception

• LGPL allows linking to closed applications

– Java archive files33


Distribution• GPL v2 and other OSS licenses:

Distribution– Physical copy transferred– To a third party

• GPL v3: Propagation and Conveyance

• In soft- and hardware

• ASP loophole og network exception

• Affero Public License

34


Distribution cont.

• Challenges–Contractors on/off-site–Outsourcing

• Mergers and Acquisitions• Let recipient download the

GPL’ed code

35


Escapes• Make deal with licensor

• Replace code

• Work around

• GPL v3, sec. 8

– Termination notice

• NDA: Developer can agree not to release changes at all

• NDA: Developer can agree only to release changes to customer

36


Enforcement• The GPL is enforceable!

– Germany 2004: Netfilter/Iptables; 2006: D-Link

– US 2007: BusyBox; 2008: Jacobsen vs. Katzer

– SCO

• Copyright holder

• Injunction• GPL-VIOLATIONS.ORG

37


Damages

• Compensation under copyright

• No penal damages or stipulated damages

• Economic loss suffered by licensor

• Rule of thumb: 2 x license fee

• Legal fees

38


License structure• Eclipse.org Terms of Use

• Eclipse Foundation Software User Agreement

• Eclipse Public License Version 1.0 ("EPL")

• Other OSS license

– Common Public License Version 1.0

– Apache Software License 1.1– Apache Software License 2.0

– Metro Link Public License 1.00

• Mozilla Public License Version 1.1

40


Copyleft in EPL• “Weak”

• Contributions

– Changes

– Additions

• Contributions do not includes:

– additions to the Program which: (i) are separate modules of software distributed in conjunction with the Program under their own license agreement, and (ii) are not derivative works of the Program.

41


Patents in EPL

• Patent license to use Contributed source and object code

• Also to use Program and Contribution combined at time of contribution

• No warranties or indemnifications

• Indemnification of other Contributors by Commercial distributors

42


Risk at Eclipse

• Code Originates from Three Sources:– Contributions from Eclipse

Committers– Contributions from Contributors– Contributions from third party

sources (e.g. another open source project)

43


Committer Contributions

• Legal Agreements are entered into to secure the necessary rights to have the code included in Eclipse.– Member Committer Agreement

– Individual Committer Agreement

• If the Individual Committer is Employed

– An Employer Consent Form

• Through these Agreements, the Committer agrees that the Eclipse Public License (EPL)governs the code submitted by the Committer.

44


Contributor Contributions

• All content must be submitted through any of the channels existing on the Eclipse Foundation website such as, the Bugzilla bug reporting system.

• This material is licensed to others under the terms of the Eclipse Foundation Terms of Use.

• The Eclipse Foundation Terms of Use define the license terms that apply to any intellectual property submitted to the Eclipse Foundation website.

• Modifications to EPL code are governed by the EPL

• Modifications to code governed by another license aregoverned by that other license and the EPL.

45


Contributor Contributions continued…

• For all other contributions…– “you grant (or warrant that the owner of such rights

has expressly granted) the Eclipse Foundation, the Members and the users of this Web-site a worldwide, unrestricted, royalty free, fully paid up, irrevocable, perpetual, nonexclusive license to use, make, reproduce, prepare derivative works of, publicly display, publicly perform, transmit, sell, distribute, sublicense or otherwise transfer such Materials, and/or derivative works thereof, and authorize third parties to do any, some or all of the foregoing including, but not limited to, sublicensing others to do any some or all of the foregoingindefinitely.”

46


Third Party Contributions

• Third party contributions such as code originating from another open source project (e.g. www.apache.org) are licensed under the licenseterms that apply to that project.

• Eclipse completes due diligence on each of these packages.

47


http://www.apache.org

http://www.apache.org

License Compatibility

• When more than one “copyleft” open source product is used in the same application, the applicable licenses may contradict one another.

• One license may require that the application as a whole be licensed under its terms; while another may require that it be licensed under its terms.

• As a result, it may not be possible to comply with both licenses at the same time. The licenses are “incompatible.”

48


Two Small Words...

– “I started designing internet applications in [year], when I joined [Technology Company]…. Very soon, when working on customer projects, I introduced the concept of [concept]…. I began developing a small generic framework …. I improved the framework as I moved on, from customer to customer. “ “Until it was time to open source it! … As I spread the word about this framework within [Technology Company], several … [other employees]… began using it and making modifications… Another good reason [to open source it] was that I wanted to have feedback from the open source community and wanted to get help to improveit. Also, it was good to be able to provide to our customers a framework that would continue to evolve and be maintained even after we left the project.” [Emphasis added. Paraphrased from:http://jakarta.apache.org/cactus/participating/contributors.html]49


http://jakarta.apache.org/cactus/participating/contributors.html%5D












Questions

• Does the Technology Company have an ownership interest in the software?

• Do Technology Company’s customers have an ownership interest in the software?

• Are there other authors involved and did they consent to distribute the code under the license identified?

50


Active management

• Initial open source contribution policy

• Ownership assignment• Repeated audited• But don’t overdo it!

51


Also available athttp://www.slideshare.net/vonhaller/

Thanks for listening!


http://www.slideshare.net/vonhaller/cc-some-rights-reserved-12-11-2008-presentation/

http://www.slideshare.net/vonhaller/cc-some-rights-reserved-12-11-2008-presentation/

Open source legal intro (01-06-2009)

Technology

Transcript of Open source legal intro (01-06-2009)