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Malcolm Bain
ID LAW Partners/BGMA and Free Software Foundation Europe
(FSFE)
Barcelona
Background - Malcolm Bain
• Partner, id law partners / Brugueras Garcia-Moliner i
Associats (BGMA), Barcelona, Spain
• Areas of work
– IP Law – Software licensing, compliance
– IT Law – Ecommerce, data protection, databases, digital
evidence
– Commercial: IT distribution and procurement
• Member of FSFE-Legal Task Force (but do not represent
the FSFE)
• University work: UOC, UPF, UDL
Free Software Foundation Europe
• Contrast:
– with Proprietary/Closed source licensing
– not with “commercial” software, as FOSS can be
commercial
Origins of FOSS
• “On shoulders of giants”
– From Aristotle and Averroes, to Newton and Boswell, to
Stallman…
• Sharing ethics (Hackers)
– "Information increases in value by sharing it with other people. Data
can be the basis for someone else's learning; software can be
improved collectively“
• US Universities
– UC Berkeley – “BSD” flavour UNIX operating system – 1970s/80s
– MIT: Richard Stallman: GPL (1980s)
“Free Software”
Free Software Manifest (1989)
http://www.fsf.org/philosophy/free-sw.html
Open Source
• No significant legal difference with Free Software
- different philosophical and ethical approach
• Open Source is seen as “less restrictive” than
Free Software: more pragmatic approach, focus
on software quality through openness and sharing
www.opensource.org
Open Source Definition
1. Free Redistribution. 6. No Discrimination against
2. Source code (will be made fields of endeavour.
available for examination). 7. Distribution of License (no
additional licenses)
3. Derivative works (must be 8. License Must Not Be
allowed). Specific to a Product.
4. Integrity of The Author's 9. The license must not
Source Code restrict other software
5. No Discrimination against (within same distribution).
persons or groups. 10. License Must Be
Technology-Neutral
FOSS Licensing
• Extremely active FOSS community, heterogeneous
• Hundreds of different “FOSS” licenses.
– From: “You may use this software as you wish” to: GPLv3 or
AferroGPLv3
– Some “standard” (OSI approved), others home-made or
“adapted” OSI licenses with “tag-ons”
• 6 most common licenses cover over 90% of open source
projects
• About 65% use a copyleft license
MPL CPL
BSD
GPL / LGPL Apache
Elements of FOSS licenses
• Common elements: “Some rights reserved”
– Attribution of authorship / keep copyright notice
– Grant of rights: the license permits
• Reproduction, installation, use
• Transformation (including re-engineering and decompilation, etc.)
• Distribution and public communication (or equivalent)
– Warranty and Liability disclaimers
• Distinguishing features
– Obligations on redistribution!!!
• Permissive
• Copyleft
– Other: patent grants, termination procedure, additional rights, etc.
Copyleft
• Objective: keep the code free!
• Implementation: license conditions on redistribution
• Example license: GPLv2
– “2(b) You must cause any work that you distribute or publish,
that in whole or in part contains or is derived from the Program
or any part thereof, to be licensed as a whole at no charge to
all third parties under the terms of this License.
• Impact: redistribution of the code under the same
license, derivative works that are redistributed must be
shared… and sometimes collective or composed works
including the code also
• Not the opposite of copyright – use of copyright law for
protection and imposing conditions on redistribution.
FOSS License ecology
Non-Proprietary Software
Proprietary Software • Free Software
• Closed source • Open Source Software
• Shareware • Public Domain
• Freeware
• Evaluation
Commercial Software
• Software licensed for a fee
• Both propietary and
free software
Technical aspects of Software
Two fundamental characteristics
Modularity: architecture Software life-cycle
• Needs
User interface
• Specifications
Applications: office, email, ERP, etc
• Analysis
Basic components:
Databases, communications • Design
• Training
• Documentation
• Compliance
Who is making money on FOSS
• Oracle/Sun - $7bn acquisition of Sun
• IDC – projected $8bn open source revenues
worldwide in 2013 – 22.4% compound annual
growth rate
• Red Hat – over $500mn revenue in 2008/9
• Google – mkt cap $169bn
• etc...
Garnter on FOSS use - 2011
Garnter on enterprise software
deployment
In summary
• Revenue generation:
– Licensing fees, warranties v. supporting services and hardware
packaging
– Mixed models: subscription/licensing fees – warranties for full
features or additional services, with open source core or stack
• Blurring boundaries in development: co-existence of
models:
– Proprietary application vendors using FOSS stack (lower levels)
– Community developers contributing to closed software programs
– Commercial developers contributing to FOSS projects
(interoperability, compatibility, platforms).
• Overall viability:
– Both Proprietary and FOSS models can offer viable strategy for
software providers and advantages of customers
– Depends largely on the needs and circumstances of the users
– FOSS provides greater efficiency, user freedom, independence
Examples of mixed platform players
Main IP Issues concerning FOSS
Main issues
• IP basics
• License complexity and compatibility
• FOSS project management: licensing
• IP infringement and enforcement
• Patents
IP Basics
• Most FOSS projects are multi authored works:
(collective, joint, ?)
– ownership of code
– legitimacy to choose the redistribution license
• Many FOSS projects are composed or derivative
works:
– scope of definition / country specific interpretation
– impact on copyleft obligations
• Some FOSS projects are based on Interoperability/
reverse engineering
– Legislated or contractual right?
– Impact on license obligations
License complexity and compatibility
• License proliferation:
– more than 70 OSS-certified licences, +1000 licenses
in Black Duck scanner
• License compatibility:
– mixing of software components under various
licenses – particular issue of GPL2 and GPL3
• Licensing of derivative works:
– copyleft scope and effect (over 60% FOSS projects
under GPL – high impact)
• Multi-licensing:
– software licensed under two or three different OSS
licences (Mozilla)
License/project management
• IP rights – quality assurance
– Inbound licenses/assignments
– Outbound license (selection) and licensing (compliance)
– NB: tools for license checking
• Supply chain
– License compliance up/down the supply chain
– End retailer/brander: Compliance policies - procedures
• Enforcement
– See next…
FOSS infringement and enforcement
• Infringement scenarios
– By end user (difficult + license reinstated) + unlikely to be sued
– By redistributor: inclusion of proprietary software in FOSS code, or
breach of FOSS license obligations
• Enforcement cases
– German court cases (GPL validity, compliance): Sitecom, Fortinet
(Munich) D-Link (Frankfurt)
– SCO v IBM (copyright infringement)
– Jacobsen v Katzer (contract formation)
– Oracle v Google (Android – alleged patent infringement and
copyright infringement in Android mobile phone operating system)
• Remedial action:
– license compliance (release of source code?)
– remove product from market
Patent risks
• Problems: software patents
– Patent validity, submarine patents
– Jurisdiction specific (territorial nature)
– Moving target: Bilski (US), Haliburton (UK), EPO caselaw
• Same for FOSS as Proprietary code
– But FOSS source code available for review (processes)
• Patent based strategies: prevent FOSS development?
– Patents as a lever to scare people away from FOSS (TomTom)
– Trolls (patent portfolios)
• Dealing with patents
– FOSS License terms: patent peace
– Patent portfolios (Open Innovation Network, Patent Commons)
– Peer 2 Patent, Patent busters, Linux defenders…
In summary
• Yes, there are some IP issues:
– IP ownership
– Licensing and License compatibilities
– Enforcement
– Patents
• BUT they are the same as any software development
and commercialization project