IPR issues in open
  source software
            Carlo Daffara
                   Conecta
Some initial definitions: IPR, Free/Libre Open source
●

  software
● Intellectual property (IP) are legal property rights...
Open source software: software that is distributed under
●

    a license that comply with the OSD definition:

  Derived ...
Free software has a similar definition, and in fact OSS
●

  and FS may be considered as legally similar (but with
  diffe...
There are more than 50 licenses identified as quot;open
●

    sourcequot; or quot;free softwarequot;; those can be classi...
OSS licenses have been enforced several times, in the
●

  USA and in Germany, and several commercial
  companies settled ...
Why should I worry about OSS? Two reasons:
●




                         IPR issues in open source software
IPR issues in open source software
Why should I release something that is protected under
●

  an OSS license, and thus losing my protection?
● Many   potent...
Apple: “Based on the COCOMO model the total cost of
●

  internally developing the OSS included in the Darwin
  core and t...
IPR issues in open source software
Is it true also for exogenous business models?
●

  Economic theory tells us that in a commodity market, in
  absence of s...
OSS Vendor                  Vendor    Number of                  Sale condition                          Freeriding protec...
Exactly as it is important for companies that sell systems
●

  (packages, devices, …) that contain code to be sure that
 ...
IPR issues in open source software
Last part: patents
●

● Software    patents are among the most controversial
  areas both in terms of legislation, legal p...
Some licenses explicitly mention SW patents: if code is
●

  released, all hidden patents are given for free use as
  well...
Sometimes it is possible to find patent-free alternatives,
●

  or standards for which the patents are offered in an
  OSS...
IPR issues in open source software
Thanks


Carlo Daffara
cdaffara@conecta.it
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Ipross

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A presentation on IPR aspects of Open Source: business models, software patent, protection mechanisms, interfaces and standards

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Ipross

  1. 1. IPR issues in open source software Carlo Daffara Conecta
  2. 2. Some initial definitions: IPR, Free/Libre Open source ● software ● Intellectual property (IP) are legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets. ● The majority of intellectual property rights provide creators of original works economic incentive to develop and share ideas through a form of temporary monopoly. IPR issues in open source software
  3. 3. Open source software: software that is distributed under ● a license that comply with the OSD definition: Derived Works: The license must allow modifications ● and derived works, and must allow them to be distributed under the same terms as the license of the original software. ● Integrity of The Author's Source Code ● No Discrimination Against Persons or Groups ● No Discrimination Against Fields of Endeavour ● Distribution of License ● License Must Not Be Specific to a Product ● License Must Not Restrict Other Software ● License Must Be Technology-Neutral IPR issues in open source software
  4. 4. Free software has a similar definition, and in fact OSS ● and FS may be considered as legally similar (but with different ethical backgrounds) ● It may seem that OSS and IPR are mutually exclusive, as usually IPR is “protective” and is a barrier against external leverage of an intellectual resource ● The opposite is true: licenses are grounded in copyright, and are strongly enforced ● There are 4 main area of interest in the research community related to OSS and IPR: ● Legal basis for OSS IPR (licensing) ● Business basis of OSS IPR (business models and competition barriers) ● External IPR in OSS (compliance) ● Patents, standards and OSS IPR issues in open source software
  5. 5. There are more than 50 licenses identified as quot;open ● sourcequot; or quot;free softwarequot;; those can be classified in a very simple way as: ● quot;provide creditquot;: use, modification, redistribution are allowed, but credit to the original author is due, if redistributed. Examples: BSD license, Apache License v2. ● quot;provide fixesquot;: use, modification, redistribution are allowed, but source code for any changes must be provided to the original author, if redistributed. Examples: Mozilla-style licenses (Mozilla Public License). ● quot;provide allquot;: use, modification, redistribution are allowed, but source code of any derived product must be provided, if redistributed. Example: GPL. IPR issues in open source software
  6. 6. OSS licenses have been enforced several times, in the ● USA and in Germany, and several commercial companies settled OSS licensing issues out-of-court... ● … this means that licenses should be considered valid for all purposes ● Different kind of licenses apply to different kind of digital artefacts – for example, Creative Commons licenses are used for documentation, images, non-code contributions ● Very similar to the classification presented: do as you like, share-alike, etc. ● Warning: CC does have a “non-commercial” license (unlike the OSS definition) IPR issues in open source software
  7. 7. Why should I worry about OSS? Two reasons: ● IPR issues in open source software
  8. 8. IPR issues in open source software
  9. 9. Why should I release something that is protected under ● an OSS license, and thus losing my protection? ● Many potential advantages: R&D sharing, market dissemination, alternative business models ● R&D efficiency is among the most studied aspect: “The total software stack includes 10.5 million lines of code (product and development tools), which is split into 85% coming directly from OSS, and 15% either modified or developed by Nokia. In source code lines the respective amounts are 8.9 Million lines of OSS code and 1.6 million lines of Nokia developed software. Out of the 15% created by Nokia, 50% are made available to the community as modifications to components or totally new components, leaving roughly 7.5% of the software stack closed. (…) Based on the COCOMO model we can estimate the value of the utilized OSS to be $228,000,000, including both product software and tools.” IPR issues in open source software
  10. 10. Apple: “Based on the COCOMO model the total cost of ● internally developing the OSS included in the Darwin core and the used development tools would be $350,000,000.” ● Long-term advantage: the R&D may shift effort to higher-levels (differentiating) and not waste time reinventing the wheel IPR issues in open source software
  11. 11. IPR issues in open source software
  12. 12. Is it true also for exogenous business models? ● Economic theory tells us that in a commodity market, in absence of strong exclusionary protection the price lowers to reach the marginal cost of production ● But is software a commodity? IPR issues in open source software
  13. 13. OSS Vendor Vendor Number of Sale condition Freeriding protection Business model example covered products Dual licensing MySQL single or few integration of the product with non-OSS license choice components in externally distributed products Open Core Zimbra single or few Need for the proprietary additions or need license choice, segmentation on features of support Product specialists Alfresco single or few Value perceived by user must be higher license choice than the cost of going to an unsupported recompilation (eg. CentOS); usually mission-critical environments, need of support or lack of internal expertise Platfrom Providers RedHat many Value perceived by user must be higher license choice, copyrighted and than the cost of going to an unsupported trademarked elements included in the recompilation (eg. CentOS); usually product mission-critical environments, need of support or lack of internal expertise Software Selection Navica many Complex requirements, many areas or Selection documents are usually strict vertical requirements to match, proprietary; selection requires human possibly large company size intervention (non-replicable) Aggregate support OpenLogic many Large number of managed projects, use Inherent in the non-transferability of providers in mission-critical infrastructure support contracts Legal certification and Palamida many Potential legal risk Inherent in the non-transferability of insurance certification and insurance Training and documentation Gbdirect many Lack of internal experts (or too high cost Training material are usually non-public, for creation of internal skills), complex trainers are inherently non-replicable configuration and setup of OSS product R&D cost sharing Eclipse single or few Significant R&D costs, higher than the license choice cost of management of the shared community Indirect revenues Firefox single or few There should be an external source of license choice, copyrighted and revenue linked to adoption (eg. trademarked elements included in the Ecommerce sales of related products, product search engine back-payments, etc.) Usually linked to high adoption numbers
  14. 14. Exactly as it is important for companies that sell systems ● (packages, devices, …) that contain code to be sure that OSS is properly included, OSS projects must check that code is properly vetted ● Most projects have a strict and complex IPR compliance process IPR issues in open source software
  15. 15. IPR issues in open source software
  16. 16. Last part: patents ● ● Software patents are among the most controversial areas both in terms of legislation, legal practice and market ● Problems: very low quality of issued patents, unclear legislation (are software patents allowed or not?), “submarine patents”, patent trolls ● It is actually IMPOSSIBLE to know if a specific software infringes on someone else patent ● Microsoft has patented the “Pageup/Pagedown” functionality in 2008 (US7415666); IBM the “system and method for providing reservations for restroom use” that patented the idea of queueing for the bathroom ● OSS is especially vulnerable, as the code is open for inspection IPR issues in open source software
  17. 17. Some licenses explicitly mention SW patents: if code is ● released, all hidden patents are given for free use as well ● Microsoft avoided this: it paid another company to release code, thus retaining the right to sue, and in the Novell case reworded the agreement as a “covenant not to sue” and not a licensing agreement ● The community responded with the GPLv3, but the problem is still there ● Some companies pooled their patents together in a “nuclear arsenal” to protect Linux-based systems ● The problem of patents is also appearing in the formulation of international standards: many companies are pushing for ISO standards that due to embedded patents are not implementable in open source IPR issues in open source software
  18. 18. Sometimes it is possible to find patent-free alternatives, ● or standards for which the patents are offered in an OSS-compatible way ● It is debatable whether patents are really needed in standards: companies are obviously interested in the large potential market for IPR licensing ● A common view is that standards are costly to develop, and in absence of IPR licensing and protection the costs could not be recovered ● This contrasts with the approach used by groups like W3C that allow for IPR on standards but only within a F- RAND framework ● Is it true that interface standards compress pricing? IPR issues in open source software
  19. 19. IPR issues in open source software
  20. 20. Thanks Carlo Daffara cdaffara@conecta.it
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