11. ppt - open ip licensing - best

Agenda:

IP Law Basics

Free/Open Source: What Is It?

Open Source Licenses

Software Architecture Basics

Benefits, Best Practices

Free Culture & Creative Commons

Q & A

IP Law Basics

4

■Copyright

■Patent

■Trade Secret

■Trademark

■Rights To Privacy/Publicity

Intellectual Property and Software

Copyright Law

■ Five basic rights (17 U.S.C. §106):

• Copy

• Distribute

• Modify (create derivative works)

• Publicly display

• Publicly perform

■ Open-source and creative commons licenses

leverage copyright law

• Sometimes patents

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■ A “derivative work” is a work based upon one or

more preexisting works. 17 U.S.C. § 101.

■ Some examples from the statute: “translation,

musical arrangement, dramatization, fictionalization,

motion picture version, sound recording, art

reproduction, abridgment, condensation, or any

other form in which a work may be recast,

transformed, or adapted . . .”

■ Note the lack of software examples in the statute.

Particularly challenging to tell with various kinds of

software structures.

Copyright – Derivative Works

Patents

■ The right to:

• exclude others from making, using, selling, etc.

• a novel, non-obvious and useful

• process, machine, or composition of matter

■ Governs software, although extent is unclear

• Area of law is uncertain in light of recent decisions (Bilski)

■ Patent Litigators call their job the “sport of kings”

• Patents are expensive to get, and expensive to enforce

■ Requires disclosure of what is being patented

7

Trade Secrets

■ A secret that derives value from being secret

• E.g., formula for Coca-Cola

■ Matter of State Law, but many uniform statutes

■ Computer software source code can be trade secret

■ Protection destroyed by disclosure

■ Resurgence With Software As A Service

• Easier to protect when code is centralized and not released

• Google’s PageRank able to be patented, and protected as a

trade secret

8

Contracts vs. Licenses

■ Contract: a binding legal agreement between two

parties containing rights and obligations

• Offer & acceptance

■ License: permission to do something – often to use

property (intellectual or otherwise)

• Enter private property

• Make copies of a DVD

• Play copyrighted music at a nightclub

• Modify copyrighted computer software

• For IP, who owns the underlying licensed IP?

9

The Evolution of Contract Formation

■ Signed, written/printed document

■ “Shrinkwraps”

■ “Clickwraps”

■ “Browsewraps”

■ Acceptance through use

• Conditions to a license (e.g., GPL)

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Free (and Open

Source) Software

Richard Stallman

Free Software Foundation

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There are a lot of misconceptions:

■ “You can do whatever you want”

■ “It’s in the public domain”

■ “You can’t make money using OSS”

■ “The GPL is always a problem”

What Is Open-Source Software?

Difference Between “Free” and “Open” Source

Free speech, not free beer

Free Software Foundation / Richard Stallman have

advocated for “Free” software that can be

endlessly modified and remain “Free”

“Open Source” much broader, coined to dispel

misconceptions, appeal to business

FLOSS (Free, Libre and Open-Source Software) as

broad term to encompass all

Organizational Support: The Movement

The Free Software

Foundation has a

fairly small budget

($1m/annual) and

promotes “Free”

distribution of

software

Stallman is

president of FSF

Organizational Support: Business

Open Source often

has champions

from those that

provide related

hardware and

services

Significant overlap

with “free”

software: GPL

dominates.

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■ Free Redistribution

■ Source Code Availability

■ Modifications and Derived

Works

■ Integrity of the Author’s Code

■ No Discrimination (e.g.,

commercial use, geography,

etc.)

■ Licenses are not

product/technology specific

Open Source Principles

17

■ Copyright license

■ Patent license

■ When are they effective?

■ Trigger on “distribution”

■ “Use Wrap?”

■ Dual licensing

IP Licenses

18

■ Lewis Galoob v. Nintendo (video game enhancer)

■ Micro Star v. Formgen (video gameplay maps)

■ Combining or modifying source code – easy

■ Linking a library?

■ Using a GPL device driver in your proprietary

kernel?

■ Lack of court cases leads to conservative advice by

attorneys


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■ Conceptual View

• Based on

• Adapted

• Subclassing in OO programming? (FSF says “yes”)

■ Bit-Centric View

• Single file?

• Embedded platforms, firmware?


Open Source Licenses

Major Open Source Projects

Can avoid the need to pay for licenses for

commercial software

Hidden costs…

OSS License Types

Reciprocal/Copyleft

■ “viral,” “contaminating”

■ Provide source code for

the “work” (offers to

provide are okay)

■ Mark modifications

■ Notify licensees

of/provide copy of the

license terms

“Academic”

■ Attribution in the

documentation

■ Preservation of all

notices in the source

code


OSS License Types

Reciprocal

■ GPL

■ Affero GPL (AGPL)

■ LGPL

■ Common Public License (CPL)

■ Mozilla Public License (MPL)

■ CDDL (Sun)

“Academic”

■ Apache

■ BSD

■ MIT

■ OpenSSL/SSLeay

■ Perl/Artistic (?)

http://www.blackducksoftware.com/oss/licenses#top20

2010 Open Source License Distribution

Reciprocal/Copyleft Licenses

a.k.a. “viral” or contaminating

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Reciprocal Licenses Require Sharing At Different Levels of Code

License Granularity Of Reciprocity

GPL “Program”

LGPL “Library”

CPL [IBM/Common Public License] “Modules”

CDDL [Sun] Files

MPL [Mozilla Public License] Files

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■ Distribution of source

• Preserve all license and copyright notices

• Provide a copy of the GPL license text

■ Modifications

• Mark changes

• License your derivatives under the GPL

• In some cases, display notice in the application

■ Distributions of binaries

• Provide source code or make an offer to provide source (valid

for 3 years)

GNU General Public License (GPL)

Software Architecture Basics

Source Code Example (Firefox)

// Is the char already allocated?

if ((mask == NOTATION_LONGDIV && mLongDivCharIndex >= 0) ||

(mask == NOTATION_RADICAL && mRadicalCharIndex >= 0))

return NS_OK;

// No need to track the style context given to our MathML chars.

// The Style System will use Get/SetAdditionalStyleContext() to keep it

// up-to-date if dynamic changes arise.

PRUint32 i = mMathMLChar.Length();

nsAutoString Char;

if (!mMathMLChar.AppendElement())

return NS_ERROR_OUT_OF_MEMORY;

if (mask == NOTATION_LONGDIV) {

Char.Assign(kLongDivChar);

mLongDivCharIndex = i;

} else if (mask == NOTATION_RADICAL) {

Char.Assign(kRadicalChar);

mRadicalCharIndex = i;

}

nsPresContext *presContext = PresContext();

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From Source to Executable

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31

■ Running a proprietary application on Linux (GPL’d

kernel)

■ Making remote procedure calls to a GPL’d

application

■ Distributing proprietary software on the same

medium as GPL’d software

■ The “ASP Loophole”: using GPL’d software to

provide a service from a web server (except

javascript, other code delivered to end users)

■ No ASP Loophole for Affero License and AGPL

GPL – When Is It Safe?

32

■ Combining GPL’d source with your source and

compiling

■ Linking a GPL library to your proprietary application

• Statically

• Dynamically?

■ Using a GPL driver with your proprietary operating

system

GPL – When Is It “Viral”?

33

■ Like the GPL but less restrictive

■ Designed for code libraries

■ Must still

• Make source code for the LGPL’d library available

• Release modifications to the library under the LGPL

• Preserve notices

• Provide a copy of the LGPL

■ Permit reverse engineering for debugging

■ But you can safely link (statically and dynamically)

proprietary applications to LGPL libraries

The Lesser/Library GPL (LGPL)

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■ CPL is reciprocal but much safer than GPL

• Modifications to existing modules subject to the CPL

• New/separate modules are not subject to the CPL

■ MPL is even safer

• Modifications to existing files subject to the MPL

• New files or modules are not subject to the MPL

• Patent defense clause – software license, patent licenses

Mozilla Public License (MPL); Common Public License (CPL)

“Academic” Licenses

Berkeley, MIT, etc.

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■ Distributions of source must retain notices (i.e., the

license text)

■ Distributions in binary form must be accompanied

by a notice in the documentation for the software

■ Much less restrictive than GPL and copyleft licenses,

can lead to more extensive use in commercial &

proprietary applications.

Berkeley Software Distribution (BSD); The MIT License

37

■ Provide a copy of the license


■ Retain existing notices

Apache License (1.1, 2.0)

38

■ A few OSS licenses incorporate a patent license

(MPL, CPL)

■ Risk is not much different than software generally

■ Prevents contributors from giving copyright,

encouraging adoption of software, then suing on

patent

■ Some OSS licenses contain a patent defense clause

■ Microsoft previous threat to Linux with patents

■ Microsoft, Apple, Oracle suing Google over Android

Patent Provisions In Open Source Licenses

39

■ Few decided cases in the US

• Jacobsen v. Katzer – Artistic License – Court found a license whose attribution conditions were breached

• Software Freedom Conservancy v. Best Buy – GPL – Court found conditions of GPL breached, granted an injunction (barring shipment of HDTVs)

■ Other lawsuits filed by the SFLC on behalf of its clients

• Verizon, Xterasys, High-Gain Antennas, Monsoon Multimedia

• All settled

■ Germany

• A few decided cases finding the GPL enforceable

Enforcement Actions

Benefits, Best Practices

41

■ Reduce development costs

■ Use software that has been “battle tested”

■ Dual-licensing

• E.g., MySQL, Mozilla, ghostscript

■ More easily comply with open standards

■ Offer services around OSS

• Red Hat

• Android/Google

Why Use Open Source?

42

■ “Taint” of proprietary software, requiring release of source code

■ Unknown pedigree

■ Patent threat

• Again, not much different from risk when writing your own software

■ Automatic loss of license if open source license conditions are breached

• In some cases as a result of bringing a patent infringement suit

Potential Risks from Using OSS

43

■ Raise awareness with and educate engineering and management

■ Implement open source intake process

■ Training, code reviews

■ Inventory of open source used

• Simple string searches

• Commercial software (Palamida, Black Duck)

• Inventory of distribution uses vs. internal uses

■ Maintain inventory of distribution conditions

Recommended Best Practices

From Free Code

To Free Culture

Free Culture: Expanding Past Code

1989: GPL first released

2000: The GFDL (GNU Free Documentation

License) released for software manuals, etc.

2000 - European Space Agency releases processor

under the GPL

2001: “Open Cola” developed

2001: Wikipedia launched

2002: Creative Commons, nonprofit founded and

Creative Commons (CC) licenses published

What Else Can Be Open Licensed

Anything that can be copyrighted:

Photographs

Writings of almost any length (except the

very short)

Mixed Media

Educational Materials

Designs for objects and buildings

Music

Video

How CC Licensing Works

Still a license, so dependent on copyright

ownership.

Allows licensing based on author's choice of four

different conditions (total 6 core licenses):

by: Attribution (credit for the work)

sa: Share-alike (copyleft)

nc: Non-commercial (use cannot be for

compensation)

nd: No derivative works (most restrictive)

Because no rights is the default, CC licenses

provide a structure by which to share

Models For Uses of CC Licenses

Shared content – Wikipedia switched to CC

licensing in 2009

Fiction – Cory Doctorow CC Novel On NYT List

Images – Flickr is a major source of CC content

and validation by litigation

Educational Materials – MIT OpenCourseWare,

Connexions, Curriki.

Music – No top 40 hits yet. SoundCloud has a lot

of content; Wired Mag’s CC-licensed album.

Use For Shared Editing & Knowledge

Wikipedia software: GPL

Wikipedia content: Creative Commons

Attribution-ShareAlike.

No copyright assignment by authors, but only

one license to preserve homogeneity of

content.

Interesting to contrast with Facebook: some

information types end up open, others not

Use For Collecting Media: Flickr

Photographs are copyrightable material, and so

can be licensed by the photographer.

Flickr allows an easy way for individual users to

license out some rights – over 20% of Flickr

photos are licensed under one.

Use For Collecting Media: Flickr

Because Flickr (unlike Wikipedia) does not intend

for its content to be re-used en masse, different

licenses are permitted.

CC License Percent of all CC Licenses on Flickr (25 Feb 2010)

by (“just want credit”) 13%

by-sa 9%

by-nd 5%

by-nc 14%

by-nc-sa (copyleft) 29%

by-nc-nd (“free advertising”) 31%

http://creativecommons.org/weblog/entry/20870

Choose Your License Carefully

The photographer here

posted on Flickr with a cc-by

license, requiring only

attribution

Virgin Mobile used in Australia

in advertisements

No recourse for photographer

Subject likely had right to

privacy which was not

licensed

Ended on procedural grounds.

http://www.flickr.com/photos/sesh00/515961023/

How Do I Make Money With This?

“Open Core”/loss-leader/razors. Open-license a

lesser version of your product or service

Dual-licensing

Sell services or related products around FLOSS

Examples: MySQL, RedHat/Ubuntu, ghostscript.

Copyright assignment from contributors is cumbersome

Content Aggregation. Examples: Flickr, YouTube

(if/when YouTube is profitable).

Open Source Hardware

License to use copyrighted design

Examples:

Computer chips – since ESA chip in 2000

FuzeBox – open source game console

OSCar – open source automobile

Make Magazine annual list

Often sold as kits

Practical restrictions because of capital required

11. ppt - open ip licensing - best

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