2011 "Crash Course" on Open Source

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2011 presentation on open source software provided through the University of Colorado Silicon Flatirons Center for Law and Technology "Crash Course" series.

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2011 "Crash Course" on Open Source

  1. 1. “Crash Course” on Open Source December 5, 2011 Jason D. Haislmaier jason.haislmaier@hro.com @haislmaier Copyright 2011 Holme, Roberts & Owen LLP
  2. 2. Disclaimer and Rights This presentation is intended for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances, nor is it intended to address specific legal compliance issues that may arise in particular circumstances. Please consult counsel concerning your own situation and any specific legal questions you may have. The thoughts and opinions expressed in this presentation are those of the individual presenters and do not necessarily reflect the official or unofficial thoughts or opinions of their employers. Open Source Software For further information regarding this presentation, please contact the presenter(s) listed in the presentation. Unless otherwise noted, all original content in this presentation is licensed under the Creative Commons Creative Commons Attribution-Share Alike 3.0 United States License available at: http://creativecommons.org/licenses/by-sa/3.0/us. Copyright 2011 Holme, Roberts & Owen LLP
  3. 3. notWho’s using open source? Copyright 2011 Holme, Roberts & Owen LLP
  4. 4. “We can no longer [practically] develop[commercial] software without the use of opensource software. . . In fact, if we could find a wayto do so, we would patent it!” [Name withheld] CIO Large mobile software developer (and major patent holder) Copyright 2011 Holme, Roberts & Owen LLP
  5. 5. Commercial Open Source Copyright 2011 Holme, Roberts & Owen LLP
  6. 6. New trends The Evolution ofOpen Source Software Copyright 2011 Holme, Roberts & Owen LLP
  7. 7. A brief and (very) unofficial history. . . Copyright 2011 Holme, Roberts & Owen LLP
  8. 8. Evolution of Open Source “Free” Software Copyright 2011 Holme, Roberts & Owen LLP
  9. 9. Evolution of Open SourceThe “Free” Software Ideology• 1970s - Free software movement begins – Started largely by academics and corporate researchers – Working in collaboration to develop software – Source code (human-readable software code) was freely distributed among users – Users shared bug fixes, new functionality, etc. among the community• 1983 - Richard Stallman launches the GNU project – Response to frustration with the advent of “closed” software – Announced the development of a complete operating system “free” from constraints on source code – The “GNU” operating system• 1984 - Work on the GNU operating system begins• 1985 - Stallman founds the Free Software Foundation (FSF) to promote the free software ideology• 1986 - Stallman authors the Free Software Definition defining the principles of “free” software Copyright 2011 Holme, Roberts & Owen LLP
  10. 10. Evolution of Open Source “The word "free" does not refer to price; it refers to freedom. The freedom to copy a program and redistribute it to your neighbors so that they can use it as well as you. The freedom to change a program, so that you can control it instead of it controlling you; for this, the source code must be made available to you.” Richard Stallman Founder, Free Software Foundation Copyright 2011 Holme, Roberts & Owen LLP
  11. 11. Evolution of Open Source “You should think of ‘free’ as in ‘free speech,’ not ‘free’ as in ‘free beer’.” Richard Stallman Founder, Free Software Foundation Copyright 2011 Holme, Roberts & Owen LLP
  12. 12. Evolution of Open SourceThe Free Software Definition• Free Software “Definition” embodied in 4 basic freedoms 0 - Run the program, for any purpose 1 - Study how the program works, and adapt it to your needs 2 - Redistribute copies so you can help your neighbor 3 - Improve the program, and release your improvements to the public, so that the whole community benefits• Free software becomes synonymous with software that – Can be used, studied, and modified without restriction – Can be redistributed in modified or unmodified form without restriction (or with minimal restrictions) But, only if other recipients can do the same things Copyright 2011 Holme, Roberts & Owen LLP
  13. 13. Evolution of Open Source “Open Source” Software Copyright 2011 Holme, Roberts & Owen LLP
  14. 14. Evolution of Open SourceThe Rise of Open Source Software• 1989 - Version 1 of the GNU General Public License (GPL) is published by the FSF• 1991 - Version 2 of the GPL is published• 1991 - Linux operating system initially released – Originally not released under a free software license – Migrated to the GPL in February 1992 (version 0.12)• 1997 - Debian Free Software Guidelines (DFSG) published – Authored by Bruce Parens as part of the official policy for the Debian open source software project – Based on the Free Software Definition – Defines the principles under which Debian will be made available as “free” software Copyright 2011 Holme, Roberts & Owen LLP
  15. 15. Evolution of Open SourceThe Rise of Open Source• Early 1998 - Netscape releases the Netscape Communicator as free software – Bring the benefits of free software to the commercial software industry – Emphasize the business potential of the sharing of source code – Without many of the ideological overtones of free software• Late 1998 - Open Source Initiative (OSI) formed – Formed by Eric Raymond (with help from Bruce Parens and others) – Response to the overly activist/ideological stance of free software – Seeks to bring the benefits of free software to the commercial software industry by advocating the use of “open source” software – Perens adapts and repurposes the DFSG and FSD to form the Open Source Definition (OSD) to define the principles of “open source” software Copyright 2011 Holme, Roberts & Owen LLP
  16. 16. Evolution of Open Source “FOSS” Free and Open Source Software Copyright 2011 Holme, Roberts & Owen LLP
  17. 17. Open Source LicensesThe Open Source Definition• The “Open Source Definition” (OSD) articulates the principles a license must meet to be “open source” – Availability of source code – Free redistribution – Availability of “derived works” – Integrity of the author’s source code – No discrimination against persons or groups – No discrimination against fields of endeavor – License must travel with the software – License not dependent on particular software distribution – License does not restrict other software – License technology neutral• Used by the OSI to define licenses as “open source” Copyright 2011 Holme, Roberts & Owen LLP
  18. 18. Open Source LicensesApproved Open Source Licenses• The OSI maintains a certification program to approve licenses as compliant with the OSD• Over 70 licenses approved as “open source” by the OSI – All implement the OSD, each with its own specific terms – One definition, many different types of licenses• Many unapproved “open source” licenses exist – Never formally approved by the OSI – Still refer to themselves (and referred to by others) as “open source”• Many other licenses are referred to as “open source” – Based in some part on OSI-approved licenses – No guarantee of compliance with the OSD Copyright 2011 Holme, Roberts & Owen LLP
  19. 19. Open Source LicensesSingle Definition – Many Licenses Academic Copyleft Very Less Less More Permissive Permissive Restrictive Restrictive• Berkley Software • Apache Software • Mozilla Public License • GNU GPL v2 Distribution License License (MPL) • GNU GPL v3 (BSD) • Eclipse Public License • Common • GNU LGPL v2.1• MIT License • Artistic License Development and • GNU LGPL v3• W3C Distribution License (CDDL) • Affero GPL v2 • Common Public • Affero GPL v3 License (CPL) • IBM Public License Copyright 2011 Holme, Roberts & Owen LLP
  20. 20. Open Source Licenses Copyright All Rights Reserved “Copyleft” All Rights Reversed Copyright 2011 Holme, Roberts & Owen LLP
  21. 21. Open Source Licenses Open source software is licensed software Open source licenses make the software “open source” Copyright 2011 Holme, Roberts & Owen LLP
  22. 22. Open Source Licenses Understand the similarities Understand the differences Understand why they matter Copyright 2011 Holme, Roberts & Owen LLP
  23. 23. Open Source Licenses Proprietary Open Source • “Arms-length” agreement • License flows with code – “Meeting of the minds” – Unilateral set of permissions – Often negotiated – No negotiation – Affirmative assent (sign, click, etc.) – No affirmative assent needed • Use “Restrictions” • Use “Permissions” (with boundaries) – Object code only – Source and object code forms – Limited copying and use – Copy, modify, and distribute – No reverse engineering – May allow other end users to do – No distribution the same • Robust Licensor Obligations • Limited or No Licensor Obligations – Warranties – No warranties – Updates/upgrades – No updates/upgrades – Support and maintenance – No support obligations – Infringement indemnification – No infringement indemnification • Legally enforceable (and enforced) • Legally enforceable (and enforced) Copyright 2011 Holme, Roberts & Owen LLP
  24. 24. Open Source Licenses Academic Copyleft • Permissive • Restrictive • Minimal requirements • Extensive requirements • Notice • Notice and attribution – Copyright ownership • Availability of source code – License applicability • Application beyond the original code • Attribution – Covers derivative works (and perhaps – Authors of original code other modifications) – Contributions to the original code – “Viral” • Application only to the original code • License must flow with the code – Derivatives and modifications not covered – Potential license incompatibilities – Non-“viral” – Limited or no release under other licenses • License flows with the code, but. . . • Often include patent licenses – High level of compatibility with other – Express or implied licenses – Covering licensed code and contributions – Relicensing permitted under other licenses • Other requirements. . . Copyright 2011 Holme, Roberts & Owen LLP
  25. 25. Copyleft and Copyright Is Copyleft anti-Copyright? Copyright 2011 Holme, Roberts & Owen LLP
  26. 26. Copyleft and CopyrightOpen Source Licenses Depend on Copyright• Open source software licensing has arisen (at least in part) as a response to copyright law• Open source licensing relies on the ability of a copyright owner to choose how to enforce (or not enforce) their copyright• Each open source license is intended to act as a set of permissions (and restrictions) granted by a copyright owner under their copyright• Like most licenses (or contracts), open source licenses have limits• Unlike proprietary licenses, these limits generally allow for more “open” or “free” use of the software• Each open source license implements the Open Source Definition• Some more differently than others. . . Copyright 2011 Holme, Roberts & Owen LLP
  27. 27. Copyleft and Copyright Just how differently? Copyright 2011 Holme, Roberts & Owen LLP
  28. 28. Cloud“We’re ‘ok.’ We don’t distribute software. ” Copyright 2011 Holme, Roberts & Owen LLP
  29. 29. CloudCopyright 2011 Holme, Roberts & Owen LLP
  30. 30. Open Source in the CloudExample: BSD License• BSD License is triggered by “Redistribution and use”• Express restrictions only apply to “redistributions”• Does it matter given the permissive nature of the BSD? Copyright 2011 Holme, Roberts & Owen LLP
  31. 31. Open Source in the CloudExample: GPLv2• GPLv2 is triggered by distribution• Merely running the program is not covered by the license Copyright 2011 Holme, Roberts & Owen LLP
  32. 32. Open Source in the CloudExample: GPLv3• GPLv3 is triggered by a “conveyance”• Specifically does not include use over a network Copyright 2011 Holme, Roberts & Owen LLP
  33. 33. Open Source in the CloudExample: AGPLv3• The Affero GPLv3 expressly covers use over a network• Treats use over a network as a distribution or conveyance is treated under the GPL Copyright 2011 Holme, Roberts & Owen LLP
  34. 34. Open Source in the Cloud “So doesn’t this mean that the GPL is the new BSD license. . . and that Google is the new Microsoft ?” Bradley Kuhn Former executive director of the FSF Copyright 2011 Holme, Roberts & Owen LLP
  35. 35. What constitutes a “distribution” of software under the GPL? Copyright 2011 Holme, Roberts & Owen LLP
  36. 36. What is the consequence of a“distribution” of software under the GPL? Copyright 2011 Holme, Roberts & Owen LLP
  37. 37. License InterpretationExample: GPLv2• GPLv2 covers the program licensed under GPLv2 and “works based on the program”• Requires works in whole or in part “derived from the Program” to be licensed under the terms of the GPL Copyright 2011 Holme, Roberts & Owen LLP
  38. 38. License InterpretationExample: GPLv2• GPLv2 definitions refer to a “derivative work” under applicable copyright law as a guide• But, also provide their own interpretation of what would be included as a “work based on the program” Copyright 2011 Holme, Roberts & Owen LLP
  39. 39. License Interpretation Who decides how to interpret open source licenses? Copyright 2011 Holme, Roberts & Owen LLP
  40. 40. License InterpretationExample: GPLv2• GPLv2 sets multiple boundaries – Triggered by a “distribution” – Allows modification to form a “work based on the Program” – Requires a work that “in whole or in part contains or is derived from the Program” to be subject to the GPL• Does not fully define these terms• Refers to applicable copyright law for aide in defining key terms• Copyright law is not well-defined as it relates to these areas – The U.S. Copyright Act grants copyright owners the exclusive right to “distribute” the works, but does not define “distribute” – Similar uncertainty around a “derivative work” of software Copyright 2011 Holme, Roberts & Owen LLP
  41. 41. License InterpretationExample: GPLv2• Multiple interpretations and understandings have emerged – Free Software Foundation and other open source groups – Open source legal community – Very limited court decisions regarding open source – Court decisions in other areas of copyright law• Relatively little dispute at either end of the spectrum• Uncertainty exists in the many emerging variations in-between• Even the accepted interpretations are highly fact-dependant Copyright 2011 Holme, Roberts & Owen LLP
  42. 42. License InterpretationExample: GPLv2• Copyright law gives the copyright owner power to enforce their copyright• Issuing licenses is part of this power• The copyright owner decides – Whether to apply GPLv2 to their software – How to interpret GPLv2 as applied to their software – When and how to enforce GPLv2• Court decisions apply (if they are available)• Accepted interpretations and practices can carry weight• Where the law is unclear and multiple reasonable interpretations exist, the copyright owner has the power to decide which interpretation to adopt Copyright 2011 Holme, Roberts & Owen LLP
  43. 43. What happens when a difference in interpretation occurs? Copyright 2011 Holme, Roberts & Owen LLP
  44. 44. Copyright 2011 Holme, Roberts & Owen LLP
  45. 45. Attacks on Android Google essentially copied hundreds of files of Linux code that were never meant to be used as is by application developers, "cleaned" those files using a non-standard and questionable technical process, and then declared that the code was no longer subject to the GPLv2, so that developers could use it without becoming subject to the copyleft effect that would normally apply to GPLv2-licensed code taken from the Linux kernel. Source: http://www.brownrudnick.com/nr/pdf/alerts/Brown%20Rudnick%20Advisory%20The%20 Bionic%20Library-Did%20Google%20Work%20Around%20The%20GPL.pdf Copyright 2011 Holme, Roberts & Owen LLP
  46. 46. Attacks on Android• Android consists of: – An underlying Linux kernel – Licensed under GPLv2 – A C-library known as “Bionic” – Licensed under BSD• Allegations claim that the Bionic library is a derivative work of the Linux kernel due to the amount and type of code included in Bionic from the Linux kernel• GPLv2 requires that all derivative works of software licensed under GPLv2 must themselves be licensed under GPLv2• Therefore, by implication – Bionic must be licensed under GPLv2; AND – Applications running on Android must also be licensed under GPLv2• Thus, Android developers are under “significant” business and legal risk Copyright 2011 Holme, Roberts & Owen LLP
  47. 47. Attacks on AndroidAllegations Against Bionic• Google incorporated Linux kernel header files (and derivative works of those files) into Bionic• Think of the header files as essentially acting as interfaces to the Linux kernel• Used the header files to allow applications and other programs to use and invoke the functions of the Linux kernel• The question: Does this matter? Copyright 2011 Holme, Roberts & Owen LLP
  48. 48. Attacks on AndroidStatus of Header Files Under Copyright Law• Copyrightability of header files is open to debate – Interface declarations are analogous to "facts" regarding the operation of a software program – Facts (of any kind) are not copyrightable (along with systems, processes, or methods of operation)• Copying of interfaces to create compatible (independent) software has also been viewed as fair use. – If available, fair use provides an unlicensed user with a defense to copyright infringement – See, e.g., Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000)• GPLv2 is a copyright license, so without a valid copyright (or a fair use claim), there is nothing for the license to provide or protect. Copyright 2011 Holme, Roberts & Owen LLP
  49. 49. Attacks on AndroidStatus of Header Files Under the GPL• Questions about the treatment of header files under the GPL are nothing new• Even the FSF has questioned whether the use of header files will always result in a derivative work of the Linux kernel Someone recently made the claim that including a header file always makes a derivative work. Thats not the FSFs view. Our view is that just using structure definitions, typedefs, enumeration constants, macros with simple bodies, etc., is NOT enough to make a derivative work. It would take a substantial amount of code (coming from inline functions or macros with substantial bodies) to do that. Source: 2003 Email from Richard Stallman quoted at: http://lkml.indiana.edu/hypermail/linux/kernel/0301.1/0362.html• General acceptance that not all portions of header files are copyrightable• Uncertainty as to which portion of header files are copyrightable• Highly fact-based analysis Copyright 2011 Holme, Roberts & Owen LLP
  50. 50. Attacks on AndroidStatus of Header Files Under the GPL• The version of GPLv2 used by the Linux kernel includes an additional exception: NOTE! This copyright does *not* cover user programs that use kernel services by normal system calls - this is merely considered normal use of the kernel, and does *not* fall under the heading of a “derived work”. Also note that the GPL below is copyrighted by the Free Software Foundation, but the instance of code that it refers to (the Linux kernel) is copyrighted by me and others who actually wrote it. Source: http://www.kernel.org/pub/linux/kernel/COPYING• Permits applications and other programs to link to the functionality of the Linux kernel without creating a derivative work• Applications running on Linux are thus not required to be licensed under GPLv2• Bionic is not the first Linux library to operate in this manner – Example: glibc (GNU C library) Created using the same basic methodology used to create Bionic Not licensed under the GPL (licensed under the LGPL) – Other examples exist as well• Why are glibc and other similarly-developed libraries not also derivative works? Copyright 2011 Holme, Roberts & Owen LLP
  51. 51. Attacks on AndroidRisk to Android?• Even with other examples of non-infringing Linux libraries that are not licensed under the GPL, it is possible that: – Bionic includes copyrighted code from the Linux kernel (e.g., coming from inline functions or macros with substantial bodies) – Bionic makes more than “normal system calls” to the Linux kernel – The code used by Bionic is not subject to a fair use argument• The only way to know for sure is to review the files comprising the Bionic library Copyright 2011 Holme, Roberts & Owen LLP
  52. 52. Attacks on AndroidRisk to Android Applications?• Even if Bionic is subject to GPLv2, are applications running on Android also subject to GPLv2? If the Bionic header files remain subject to GPLv2, there is a considerable risk that applications using them become subject to GPLv2 as well. If GPLv2 applies to Android applications, developers’ ability to differentiate on the Android platform would be seriously impaired, because they would be required to release the source code of their applications [under GPLv2] and would be precluded from limiting how anyone, including competitors, uses that code. Source: http://www.brownrudnick.com/nr/pdf/alerts/Brown%20Rudnick%20Advisory%20The%20 Bionic%20Library-Did%20Google%20Work%20Around%20The%20GPL.pdf• Solid legal arguments exist that this is not the case Copyright 2011 Holme, Roberts & Owen LLP
  53. 53. Attacks on AndroidRisk to Android Applications?• Strong legal argument that merely linking one independent program to another does not create a derivative work Simply combining a copyrighted work with another work does not create a derivative work. The original copyrighted work must be modified in some way. The resulting derivative work must itself “represent an original work of authorship.” So if the licensee doesn’t modify the original GPL-licensed program, but merely runs it, he is not creating a derivative work. Source: "The Unreasonable Fear of Infection", Lawrence Rosen• Also well-settled that running an application on a GPL-licensed OS does not create a derivative work and cause the application to come under the GPL Consider the scenario where the Linux operating system, a GPL- licensed program, loads and executes a proprietary program. The Linux program is not modified; it is merely used for the purpose for which it was designed. The proprietary program does not “contain” nor is it “derived from” Linux. Linux does not infect the proprietary program, and the proprietary program does not become subject to the GPL. Source: "The Unreasonable Fear of Infection", Lawrence Rosen Copyright 2011 Holme, Roberts & Owen LLP
  54. 54. Attacks on AndroidRisk to Android Applications?• GPLv2 applies to the licensed program and “any work based on the Program”• GPLv2 defines this as “any derivative work under copyright law”• Copyright law defines a “Derivative Work” as: – A work based upon one or more preexisting works – In which the underlying work is recast, transformed, or adapted – Where the modifications, as a whole, represent an original work of authorship• Bringing together two independent and separate works does not alone constitute a derivative work• May create a compilation or collective work• Collective works or compilations are collections of separate and independently copyrighted works Copyright 2011 Holme, Roberts & Owen LLP
  55. 55. Attacks on AndroidWhat Does The Community Have to Say?• Linus Torvalds has stated in the past that applications and other programs running on Linux do not become subject to the GPL “User programs are _clearly_ not derived works of the kernel, and as such whatever the kernel license is just doesn’t matter.” Source: Linus Torvalds, as quoted in LKML, http://lkml.org/lkml/2003/12/3/228• His comments regarding these allegations reiterate this point “It seems totally bogus, we’ve always made it very clear that the kernel system call interfaces do not in any way result in a derived work as per the GPL.” Source: Linus Torvalds, as quoted in Network World - http://www.networkworld.com/community/node/72428• As the owner of the copyright in significant portions of the Linux kernel, Torvalds is the one with legal standing to bring a claim for violation of the Linux copyright Copyright 2011 Holme, Roberts & Owen LLP
  56. 56. Patents Patent “Aggression”Nothing New to Open Source Copyright 2011 Holme, Roberts & Owen LLP
  57. 57. Patent AggressionNothing New to Open Source• 2004 study by Open Source Risk Management• Revealed at least 283 patents implicated by Linux• At least 27 of those patents held by Microsoft Copyright 2011 Holme, Roberts & Owen LLP
  58. 58. Patent AggressionThe Firestar Case v. Firestar Software, Inc v. Red Hat, Inc et al (Case No.: 2:06cv258)• First patent infringement suit targeting an open source project• Firestar sued Red Hat on June 28, 2006• Eastern District of Texas• Alleged that the JBoss Hibernate 3.0 technology infringed several patents, notably: – 5,522,077 - Object oriented network system for allocating ranges of globally unique object identifiers from a server process to client processes which release unused identifiers – 5,937,402 - System for enabling access to a relational database from an object oriented program – 6,101,502 - Method of interfacing an object oriented software application with a relational database• Settlement reached before much activity took place Copyright 2011 Holme, Roberts & Owen LLP
  59. 59. Patent AggressionThe Firestar Settlement• Settlement terms are public: http://www.redhat.com/f/pdf/blog/patent_settlement_agreement.pdf• Very broad: – All software licensed under the Red Hat brand (whether developed by Red Hat or third parties) – Derivative works of Red Hat branded products and combinations of software including Red Hat branded products – Upstream developers as well as predecessor products of Red Hat branded products – Distributors, customers, and everyone – All patents owned by DataTern and Amphion• Model for open source patent infringement settlements? Copyright 2011 Holme, Roberts & Owen LLP
  60. 60. Patent AggressionThe Firestar Follow-On• The patents named in the Firestar complaint are still at work• U.S. Patent No. 6,101,502 and 5,937,402• Now assigned to patent holding company DataTern (and its parent company Amphion Innovations PLC)• Asserted against a host of companies• Microsoft entered the suit with a declaratory judgment action on April 8, 2011 – Filed in the Southern District of New York – Alleges the suits have referenced Microsoft software – Defendants have asked Microsoft for indemnification – Seeks to declare the patents invalid or that no Microsoft products are infringing Copyright 2011 Holme, Roberts & Owen LLP
  61. 61. Patent AggressionMicrosoft v. TomTom• February 2009, Microsoft files suit against GPS device maker TomTom alleging infringement of eight patents• Among them, patent numbers 5,579,517 and 5,758,352 for techniques for implementing a “common name space for long and short filenames”• Covering Microsofts FAT32 file system• Microsoft claims the suit is not a direct attack on Linux Copyright 2011 Holme, Roberts & Owen LLP
  62. 62. Patent AggressionMicrosoft v. TomTom• March 2009, TomTom countersues Microsoft• Alleging infringement of four TomTom patents related to TomTom’s Streets and Trips program Copyright 2011 Holme, Roberts & Owen LLP
  63. 63. Patent AggressionMicrosoft v. TomTom• As part of its defense strategy, TomTom also joins the Open Innovation Network (OIN) Copyright 2011 Holme, Roberts & Owen LLP
  64. 64. Patent AggressionMicrosoft v. TomTom• March 30, 2009 – Microsoft and TomTom settle all issues• Specific financial terms not disclosed• TomTom to pay Microsoft an undisclosed amount for coverage under eight Microsoft patents for car-navigation and file-management systems• Microsoft to receive coverage under four TomTom patents (no payment required by Microsoft) Copyright 2011 Holme, Roberts & Owen LLP
  65. 65. Patent AggressionMicrosoft v. TomTom• Five-year term• Covers both past and future U.S. sales of the relevant products• Purports to be open source compliant: The agreement includes patent coverage for Microsoft’s three file management systems patents provided in a manner that is fully compliant with TomTom’s obligations under the General Public License Version 2 (GPLv2).• TomTom will drop FAT-patented parts of its products: TomTom will remove from its products the functionality related to two file management system patents (the ‘FAT LFN patents’), which enables efficient naming, organizing, storing and accessing of file data. TomTom will remove this functionality within two years, and the agreement provides for coverage directly to TomTom’s end customers under these patents during that time.• Microsoft is passing patent protection to TomTom’s ‘end customers’• Similar to the scheme of prior Microsoft patent license agreements• Contrast this settlement with the settlement in RedHat-Firestar Copyright 2011 Holme, Roberts & Owen LLP
  66. 66. Patent AggressionMicrosoft Patent Licensing• Microsoft has also built an increasingly broad patent licensing program – Over 1000 licenses in the last decade – Many rumored to cover Linux and other open source projects Copyright 2011 Holme, Roberts & Owen LLP
  67. 67. Patent AggressionMicrosoft Patent Licensing• Microsoft has also built an increasingly broad patent licensing program – Over 1000 licenses in the last decade – Many rumored to cover Linux and other open source projects – 10 (and counting) are known to be Android-related Source: Microsoft Corporation Copyright 2011 Holme, Roberts & Owen LLP
  68. 68. Patent AggressionAndroid Patent Aggression Copyright 2011 Holme, Roberts & Owen LLP
  69. 69. Patent AggressionAndroid Patent Aggression Copyright 2011 Holme, Roberts & Owen LLP
  70. 70. Patent Aggression How are companies defending against this threat? Copyright 2011 Holme, Roberts & Owen LLP
  71. 71. Patent AggressionPatent Purchases• November 22, 2010 – Novell announces sale to Attachmate Corporation• Deal includes the sale of “certain IP assets” to CPTN Holdings• CPTN is a Microsoft-led consortium including Apple, EMC, and Oracle• Purchased IP assets include 882 patents• Many relating to Linux and other major open source projects Copyright 2011 Holme, Roberts & Owen LLP
  72. 72. Patent AggressionPatent Purchases• U.S. Department of Justice (DoJ) intervened “As originally proposed, the deal would jeopardize the ability of open source software, such as Linux, to continue to innovate and compete in the development and distribution of server, desktop, and mobile operating systems, middleware, and virtualization products.”• Requires CPTN to alter the terms of purchase – Microsoft will not directly own any of the Novell patents (will receive a license) – EMC (which owns VMWare) will not acquire 33 patents and applications identified as related to virtualization software – All Novell patents will be acquired subject to GPLv2 and the Open Invention Network (OIN) License – CPTN may not limit which patents are available under the OIN License “Although the department will allow the transaction to proceed, it will continue investigating the distribution of the Novell patents to the CPTN owners.” Copyright 2011 Holme, Roberts & Owen LLP
  73. 73. Patent AggressionPatent Purchases• July 2011 – Nortel Networks announces $4.5 billion sale of patent assets to an Apple and Microsoft-led alliance (including Research in Motion, Sony, Ericsson, and EMC)• Over 6,000 patents and patent applications• Covering wireless and networking technology and semiconductors• Beat out Google, Intel, and others for the sale Copyright 2011 Holme, Roberts & Owen LLP
  74. 74. Patent AggressionPatent Purchases• August 2011 – Google announces $12.5 billion purchase of handset manufacturer and patent holder Motorola Mobility• Over 17,000 patents• Covering a wide range of mobile communications technology• Google also announced dual purchases of 1000 patents each from IBM Copyright 2011 Holme, Roberts & Owen LLP
  75. 75. Patent AggressionPatent Pooling• Patent-sharing coalition• Formed in 2008 by IBM, Philips, Novell, Red Hat, Sony, and NEC• Members now include Google, Oracle, and over 250 others• http://www.openinventionnetwork.com Copyright 2011 Holme, Roberts & Owen LLP
  76. 76. Patent AggressionPatent Pooling• OIN acquires rights to patents and makes them available royalty-free to members• OIN also obtains licenses from members not to assert their patents against other members• Licenses apply within the “Linux System”• Analogous to patent non-assertion pools established around technical standards Copyright 2011 Holme, Roberts & Owen LLP
  77. 77. Patent AggressionPatent Pooling• OIN has led to initiatives to assist in stemming the issuance of poor quality patents through cultivating prior art against patent applications• Other patent cooperative organizations exist as well under similar models Copyright 2011 Holme, Roberts & Owen LLP
  78. 78. Patent AggressionPatent Pooling• Rumors of pools being assembled against open source projects as well. . . Source: Linux Today - http://www.linuxtoday.com/infrastructure/2010050100535NWSWLL Copyright 2011 Holme, Roberts & Owen LLP
  79. 79. ConclusionWhere Do Things Stand?• Legally, open source is all about the licenses• License interpretation (and compliance) depends on multiple factors – Applicable license – Owner/licensor interpretation – Facts and circumstances• Open source is very much dependent on copyright and other IP rights• Ownership is always a central question• Patent infringement issues continue to be a concern• Despite this, the overall risks associated with using open source are increasingly comparable to proprietary software• Primary issue is one of diligence• Develop a plan (and stick to it)• Be prepared to explain (and document) your open source usage Copyright 2011 Holme, Roberts & Owen LLP
  80. 80. Thank You. Jason Haislmaierjason.haislmaier@hro.com @haislmaier Copyright 2011 Holme, Roberts & Owen LLP

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