Open source legal intro (01-06-2009)

Open Source
Legal Intro

Advokat Martin von Haller Groenbaek
Partner, Bender von Haller Dragsted

Eclipse Banking Day Copenhagen
June 1st 2010

2

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


– 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

– mhg@bvhd.dk
– martin@groenbaek.net
– groenbaek@gmail.com

3


–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

Agenda
• FLOSS key concepts
• Trademarks and OSS
• Copyright and OSS
• Patents and OSS
• OSS Licenses
• Copyleft
• Eclipse Public License

3


Communisme


Communism ?

Cancer?

Free vs. Open

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
Trademarks

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!

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 files
33


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


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


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


Thanks for listening!
Also available at
http://www.slideshare.net/vonhaller/


Open source legal intro (01-06-2009)

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