Introduction To Open Source Licensing

Karen Copenhaver Mark Radcliffe Peter Vescuso Webinar January 28, 2009 Introduction to Open Source Licenses

Speakers
Karen Copenhaver
Partner at Choate Hall & Stewart
Counsel for the Linux Foundation
Mark Radcliffe
Partner at DLA Piper
General Counsel for the Open Source Initiative (OSI)
Peter Vescuso
EVP of Marketing and Business Development, Black Duck Software

Agenda
An Introduction to Open Source Licenses
Background and history of open source
Why use it
History of the open source movement
Definition of open source
Myths
Legal framework:
Intellectual property and licensing
Types of Open Source Licenses
Q & A

Why Use Open Source Software?
Source code exits, why re-invent the wheel?
Lower costs
It’s free but not a free lunch….
The Promise The Challenges Significantly reduce development costs – up to 90% – and accelerate time to market
Billions of lines of available code
Find the right code
License obligations
Pedigree

History of the Open Source Movement
1984 - The GNU Project at MIT, Richard Stallman, and the Free Software Foundation
1991 - Linus Torvalds releases first Unix-like kernel; combines it with GNU software to form first release of Linux operating system
1994 – Red Hat is founded to distribute and support Linux commercially
1995 - A community of developers start work on the Apache Web Server
1997 - The Cathedral and the Bazaar is published by Eric Raymond
1998 - The term "Open Source" is coined, the Open Source Initiative (a non-profit organization) is formed

Free Software Definition
“Free Software” is a matter of liberty, not price. (Free Speech, not Free Beer)
The freedom to run the program for any purpose.
The freedom to study how the program works, and to adapt it to your needs (requires access to source).
The freedom to redistribute copies so you can help your neighbor.
The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (also requires access to source).

Principles of Open Source Licensing from the OSI
Who is the OSI (Open Source Initiative)?
The OSI are the stewards of the Open Source Definition (OSD) and the community-recognized body for reviewing and approving licenses as OSD-conformant.
Open Source Definition
1. Free Redistribution
2. Program must include Source Code and must allow distribution in source code as well as compiled form.
3. Must Allow Modifications and Derived Works
4. Integrity of the Author's Source Code
5. No Discrimination Against Persons or Groups
6. No Discrimination Against Fields of Endeavor
7. Distribution of License – no additional license can be required of others who redistribute the program
8. License Must Not Be Specific to a Product
9. License Must Not Restrict Other Software
10. License Must Be Technology-Neutral – not predicated on any individual technology

OSI Approved Licenses ( www.opensource.org ) 72 Licenses Microsoft Reciprocal License (Ms-RL) MIT license MITRE Collaborative Virtual Workspace License (CVW License) Motosoto License Mozilla Public License 1.0 (MPL) Mozilla Public License 1.1 (MPL) Multics License NASA Open Source Agreement 1.3 NTP License Naumen Public License Nethack General Public License Nokia Open Source License Non-Profit Open Software License 3.0 (Non-Profit OSL 3.0) OCLC Research Public License 2.0 Open Group Test Suite License Open Software License 3.0 (OSL 3.0) PHP License Python license (CNRI Python License) Python Software Foundation License Qt Public License (QPL) RealNetworks Public Source License V1.0 Reciprocal Public License Reciprocal Public License 1.5 (RPL1.5) Ricoh Source Code Public License Simple Public License 2.0 Sleepycat License Sun Industry Standards Source License (SISSL) Sun Public License Sybase Open Watcom Public License 1.0 University of Illinois/NCSA Open Source License Vovida Software License v. 1.0 W3C License wxWindows Library License X.Net License Zope Public License zlib/libpng license Academic Free License 3.0 (AFL 3.0) Affero GNU Public License Adaptive Public License Apache Software License Apache License, 2.0 Apple Public Source License Artistic license Artistic license 2.0 Attribution Assurance Licenses New and Simplified BSD licenses Boost Software License (BSL1.0) Computer Associates Trusted Open Source License 1.1 Common Development and Distribution License Common Public Attribution License 1.0 (CPAL) Common Public License 1.0 CUA Office Public License Version 1.0 EU DataGrid Software License Eclipse Public License Educational Community License, Version 2.0 Eiffel Forum License Eiffel Forum License V2.0 Entessa Public License Fair License Frameworx License GNU General Public License (GPL) GNU General Public License version 3.0 (GPLv3) GNU Library or "Lesser" General Public License (LGPL) GNU Library or "Lesser" General Public License version 3.0 (LGPLv3) Historical Permission Notice and Disclaimer IBM Public License Intel Open Source License ISC License Jabber Open Source License Lucent Public License (Plan9) Lucent Public License Version 1.02 Microsoft Public License (Ms-PL)

Open Source Myths For those fond of the discussion of deadly diseases:
You cannot use open source software in a proprietary environment [or you will die]
All open source licenses require the release of source code for everything.
The easiest answer is to “just say no.”

Open Source Myths For those who like simple answers:
None of these agreements are enforceable so it doesn’t really matter anyway.
No one will ever know.
Our corporate policy says we don’t use open source.

Legal Framework: IP and Licensing
Intellectual Property
Patent
Copyright
Licensing
Commercial terms
Article II of the Uniform Commercial Code

What is a patent?
An exclusive right to exclude
Making
Using
Selling
Importing
Invention must be useful, novel and non obvious
Granted by the federal government (Title 35, U.S.C.)
- 20 years after filing (after June 8, 1995 (some extensions for drugs))
Examples: drugs, computer software, diapers

What is a copyright?
Original works of authorship
Fixed in any tangible medium of expression
Capable of being discerned by someone directly or through use of a machine
Gives the owner the right to prevent others from using the property
Copying
Creation of a derivative work
Inserting in a compilation or collective work
Protects expression (not the idea)
Federal protection – U.S. Copyright Act of 1976
For a limited term (at least 70 years)

Who owns a copyright?
The author, unless the author is an employee
The ownership of an employee’s works is automatically vested in the employer
Why does ownership matter?
Only the owner can enforce a copyright
Only the owner can transfer ownership of the copyright to another
Assignment of a copyright must be in writing
Only the owner can license others (directly or indirectly)
A license can be granted orally or in writing, expressly or by implication

What is a license?
Permission by the owner of property to take some act that the owner has the ability to control
What is a sublicense?
A license granted by a licensee
The right to grant a sublicense must be expressly stated in a license and will not be implied
Copyright
Patent

What is the license for a book?
A book is not licensed, it is sold.
The sale of a book is not the sale of the copyright, it is the sale of a copy.
The rights of the owner of a copy of a copyrighted work are in the copyright statute.
Buying a book does not give you the right to copy the book.
Fair use gives you certain rights to copy portions of the book.
The sale of used books demonstrates the difference between the sale of a copyrighted work and a license for a copyrighted work.
Software has become a sale of a license not a sale of the software

What is the same between commercial (aka “closed source”) and open source licenses?
Both are based on ownership of intellectual property
Both grant certain rights and retain others
Both are governed by the same laws
Both may include provisions which may be incompatible with the obligations of other licenses
License obligations can be incompatible, but the issue is whether the obligations are triggered

What is different about open source licenses?
Different goals
Written by developers not lawyers
Encourages uncontrolled combination and reuse
Certain legal issues regarding contract formation remain open for open source licenses (a similar issue has arisen for shrink wrap, click wrap and browse wrap licenses)
Open source licenses have no acceptance procedures
Some open source licenses impose sharing obligations on users

Commercial Terms: Article II/UCITA
Software is “goods” under Article II of the Uniform Commercial Code
UCITA – Uniform Computer Information Transaction Act (Maryland/Virginia)
Other warranty laws apply to some “consumer” software such as Magnusson-Moss Warrant Act (Federal) and Song Beverly Warrant Act (California)
UCC approach: “default” provisions apply if not addressed in contract. For example:
Consequential damages will be awarded if not disclaimed, i.e., lost profits
Infringement indemnity
Merchantability (Average quality in the trade: what does it mean for software?)

Article II Concepts
Acceptance
Warranty
Limitation of Remedies
Indemnity

Types of Open Source Licenses: Restrictive, Permissive, Other
Restrictive (aka Copyleft, reciprocal)
Requires licensor to make improvements or enhancements available under similar terms
Example is the GPL: Licensee must distribute “work based on the program” and cause such works to be licensed at no charge under the terms of the GPL
Permissive
Modifications/enhancements may remain proprietary
Distribution in source code or object code permitted provided copyright notice & liability disclaimer are included and contributors’ names are not used to endorse products
Examples: Berkeley Software Distribution (BSD), Apache Software License
Single User License
Apple
Lucent
Miscellaneous
Zlib/libpng

Top 10 Most Commonly Used Licenses in Open Source Projects Note: The table above lists the top 10 licenses that are used in open source projects, according to the Black Duck Software KnowledgeBase. This data is updated daily. This snapshot was taken the day this presentation had to be submitted on January 27, 2009 . Visit: http://www.blackducksoftware.com/oss
Top 10 licenses account for 94% of OS projects
Rank by # of projects using the license

Touch Points within the Organization
Inbound Licenses
Internal use which may be in the form of tools, operating systems and other network infrastructure or applications
Outsourcing and SAAS
Software which you depend upon but never bring into your data center
Outbound
Contributions by the company or contributions by employees, or in the form of products or projects
Alone or combined with closed source offerings
Acquisitions
All of the above by a target entity

Conclusion
Open Source is here to stay
Will complement not replace traditional models
Not every “Open Source” license is truly Open Source
Must understand the risks you are assuming
Need an open source strategy combined with the right tools and automation technology

Next in the Black Duck Legal Webinar Series: Understanding the Top Ten OSS Licenses
The webinar will cover:
The most commonly used licenses
The critical terms
“ License incompatibility" issues
Best practices for dealing with these licenses
Day and time:
Wednesday February 11 th at 2PM EST
To sign up:
http://www.blackducksoftware.com/files/legal-webinar-series.html

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Introduction To Open Source Licensing

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