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

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

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

Source code exits, why re-invent the wheel?

Lower costs

It’s free but not a free lunch….

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

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).

“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

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.”

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.

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

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

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)

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

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

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

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

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

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?)

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

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

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

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

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

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

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

Questions?