facts & fairy tales about open source code presented to: society for information management...
TRANSCRIPT
Facts & Fairy Tales about Open Source
Code
Presented to:
Society forInformation ManagementFairfield & Westchester Chapter
September 18, 2003Rye Brook, New York
By: Rich Green, Wiggin & Dana LLP
© 2003 Wiggin & Dana LLP
and the Hat
and the
SCO Big Bad
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Fairy Tale One: You can’t control the use of open source because intellectual property laws don’t apply.
Fairy Tale Two: There is a single, largely beneficial purpose behind open source code—to improve the quality and reduce the cost of software through community development.
Fairy Tale Three: Open source software isn’t “commercial” software so licensees-customers have no rights against open source vendors.
Facts & Fairy Tales about Open Source Code
OVERVIEW
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Facts & Fairy Tales about Open Source Code
OVERVIEW
What makes Proprietary Software Proprietary?
What makes Open Source Software “Open”?
Is Open Source Governed by Intellectual Property Laws?
Managing Open Source Risks in the Enterprise
Pulling it all Together: SCO, Red Hat and IBM
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Facts & Fairy Tales about Open Source Code
Some Basic U.S. Intellectual Property Law
Copyright ©
Trade SecretsPatents
Trademarks ®tm
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Owning the “Bundle”
of Rights
Facts & Fairy Tales about Open Source Code
Some Basic U.S. Intellectual Property Law
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Certain rights
can be granted to others:
5 under copyright statute
2 under trade secrets theory
broad range under patent
Facts & Fairy Tales about Open Source Code Some Basic U.S. Intellectual Property Law
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Copyright:
Display
Perform
Create Derivative Works (modify/enhance/translate)
Reproduce/Copy
Sublicense/assign/transfer
Trade Secrets:
Use
Access
Disclose
Facts & Fairy Tales about Open Source Code Some Basic U.S. Intellectual Property Law
Patents:
Use in manufacture
Embed in product
“Improve”
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Licensing: Licensing is when the owner gives the user
certain “sticks” from the owner’s “bundle” of rights
Facts & Fairy Tales about Open Source Code Some Basic U.S. Intellectual Property Law
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Licensing: Giving certain “sticks” from the ownership “bundle”
License Scope Who gets the rights?
What rights are granted?
What parts of the software can be used?
Where can the rights be exercised?
How long can the rights be exercised?
Are the rights restricted or conditional (no reverse engineering, no third party benefit)?
Facts & Fairy Tales about Open Source Code Some Basic U.S. Intellectual Property Law
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U.S. IP Rights Related to Vendors & Employees
Work-made-for-hire
Invention Disclosure and Assignment
Facts & Fairy Tales about Open Source Code Some Basic U.S. Intellectual Property Law
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U.S. IP Rights of Vendors & Employees
Work-made-for-hire
Applies to © only and must be:
an employee
or
1 or more of the 9 statutory categories and written agreement as work-made-for-hire
Facts & Fairy Tales about Open Source Code Some Basic U.S. Intellectual Property Law
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U.S. IP Rights of Vendors & Employees
Invention Assignment & Disclosure
Applies to all other rights (including patents and trade secrets) as well as “safety-net” for © that may not be a
“work-made-for-hire”
Facts & Fairy Tales about Open Source Code Some Basic U.S. Intellectual Property Law
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Fairy Tale One: You can’t control the use of open source because intellectual property laws don’t apply.
Fact: Intellectual property laws do apply and control the use of open source software in exactly the same manner as proprietary software—only the effect of that application is different.
Facts & Fairy Tales about Open Source Code Applying Intellectual Property Laws to Open Source
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What Makes Proprietary Software Proprietary?
What Makes Open Source Software Open?
Facts & Fairy Tales about Open Source Code Applying Intellectual Property Laws to Open Source
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Scope of License
Facts & Fairy Tales about Open Source Code Applying Intellectual Property Laws to Open Source
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Scope of License: Open & Proprietary SimilaritiesAddress the same subject matter
Facts & Fairy Tales about Open Source Code Applying Intellectual Property Laws to Open Source
distribution use of underlying human readable code permission to modify/make derivatives definition of number/classes of users definition of types of permitted use
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Facts & Fairy Tales about Open Source Code Applying Intellectual Property Laws to Open Source
Limiting number/classes of users
Limiting types of use
Limiting the components used
Limiting duration of rights
Limiting or restricting completely modification rights
Limiting or restricting completely distribution rights
Open Source Software LicensesEnhance the economic value and quality of the software
by giving a broad license scope and thus access to many developers*
Scope of License: Open & Proprietary Differences
Proprietary Software Licenses
Preserve the economic value of the software by
limiting use through restrictive license scope
No limits on number/classes of users
No limits on types of use
No restriction on modification rights
No restriction on distribution rights
All conditions are posed in the “positive”
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Facts & Fairy Tales about Open Source Code The Origins of Open Source
The asterisk
*
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Facts & Fairy Tales about Open Source Code The Origins of Open Source
Fairy Tale Two: There is a single, largely beneficial purpose behind open source code—to
improve the quality and reduce the cost of software through community development.
Fact: There are ideological purposes behind open source code that undercut the commercial cost reduction/quality improvement camp and
(unfortunately) increase risk of use.
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Facts & Fairy Tales about Open Source Code The Origins of Open Source
The “copyleft” movement
Richard Stallman and the GNU
Eben Moglan and the Free Software Foundation
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Facts & Fairy Tales about Open Source Code The Origins of Open Source: The copyleft movement
“We [. . .] mean to wrest from the bourgeoisie, [ . . .] the shared patrimony of humankind [. . .] stolen from us under the guise of ‘intellectual property,’ [ . . .] The measures by which we advance that struggle [. . . ] will be:
Abolition of all forms of private property in ideas. Withdrawal of all exclusive licenses, privileges and
rights [. . .]. Nullification of all conveyances of permanent title. Common social development of computer programs
and all other forms of software [. . .].
By these and other means, we commit ourselves to the revolution [. . .] of overthrowing the system of private
property in ideas.”
--Eben Moglan, dotCommunist Manifesto Jan. 2003
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Facts & Fairy Tales about Open Source Code Managing Open Source Risks
Fairy Tale Three: Open source software isn’t “commercial” software so licensees-customers have no rights against open source vendors.
Fact: Open source software is acquired by most corporate users as part of “commercial” distributions (i.e., Red Hat Linux) and thus user licensees-customers have as many potential rights as in any other transaction.
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Facts & Fairy Tales about Open Source Code Managing Open Source Risks
1. Establish an “Open Source Policy” for your company much like the Internet use policy you likely have now (e.g., no unauthorized Linux downloads over company networks);
2. Use heightened project documentation best practices when developing with or in relation to known open source products in order to keep proprietary source separate from open source;
3. Don’t take “no” for an answer from your vendors (open source and non-open source) when negotiating open source license terms such as warranties, indemnities and remedies;
4. Look for open source where you least expect it –most non-open source vendors today have open source embedded in or bundled with their products in some form; and
5. Include open source risks in your disaster and business continuity planning (e.g., are there reasonable proprietary alternatives to the open source products that can be substituted if the law changes or your open source vendor goes bankrupt).
Five Best Practices for Managing Open Source Risk
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SCO, Red Hat and IBM
Facts & Fairy Tales about Open Source Code
Pulling it all Together
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SCO, Red Hat and IBM
1. Generally speaking, the typical end user of AIX and Linux has no material risk of liability to SCO;
2. SCO has no legal basis to demand license fees from third party users unless it prevails on the merits against IBM; and
3. Even if SCO prevails, third party Linux users may not necessarily be without remedies against their Linux vendors even if they acquired their Linux rights under a typical open source license.
Facts & Fairy Tales about Open Source Code
Pulling it all Together
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QUESTIONS
&
ANSWERS
Facts & Fairy Tales about Open Source Code
Pulling it all Together