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What In-House Counsel Should Know about the Use of Open Source Software in Their Organizations - Presentation: Colin Raufer, The Boeing Company - IP Law Summit

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For more information: emailus@marcusevans.com

Colin Raufer who is Intellectual Property Counsel at The Boeing Company and a speaker at the marcus evans IP Law Summit 2013, held at the Broadmoor, Colorado Springs March 21-23, 2013, delivered his presentation entitled "What In-House Counsel Should Know about the Use of Open Source Software in Their Organizations."

Join the 2015 Summit along with top IP Law executives and service providers in an intimate environment for a focused discussion of key new drivers shaping the legal industry today.
For more information: emailus@marcusevans.com

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What In-House Counsel Should Know about the Use of Open Source Software in Their Organizations - Presentation: Colin Raufer, The Boeing Company - IP Law Summit

  1. 1. APPROVED FOR RELEASE Boeing Defense, Space & Security What In House Counsel Should Know In-HouseAbout the Use of Open Source Software in Their OrganizationsColin RauferIntellectual Property CounselMarch 22 2013 22, APPROVED FOR RELEASE 1
  2. 2. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,• DISCLAIMER: The following information is being provided for educational purposes only, and is not intended to constitute legal advice. The views expressed are those of the Presenter and do not d th f th P t dd t necessarily represent the views of The Boeing Company. p y APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 2
  3. 3. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,“Things to think about before your download that open source compression algorithm from the Internet Internet” APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 3
  4. 4. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,BE PRECISE WITH YOUR LANGUAGE• Open Source• Shareware• Freeware• Public Domain• Proprietary P i tTHE LEGAL DIFFERENCES CAN BE SIGNIFICANT ! APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 4
  5. 5. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense, APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 5
  6. 6. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,Open Source Software is generally defined to be p g ysoftware whose source code is available for licensees tomodify and improve freelyLINUX Software may be the most popular open sourcesoftware program, and it is made available under theGNU GGeneral P bli License (GPL), or its sibling, the l Public Li (GPL) it ibli thGNU Library or “Lesser” General Public License (LGPL) APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 6
  7. 7. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,OPEN STANDARDSOpen Standards and Open Specifications, which promoteinteroperability,interoperability are not the same as Open Source Software(OSS) APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 7
  8. 8. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,LEGAL TITLE TO THE CODEHave others patented or copyrighted the software? APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 8
  9. 9. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,HOW WELL DO YOU KNOW THIS CODE ?• Malicious code• Viruses, bugs, Viruses bugs worms• Trojan horses• Back doors• Bots, B t spywareAre you creating security flaws for y y g y yourself or y your customers? APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 9
  10. 10. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,CAN YOU COMPLY WITH THE REQUIREMENTS OF THELICENSE?*Copyright Legends shall be reproduced Copyright*Use of the software may be auditedDo you have the procedures in place to ensure compliance?Are you documenting your modifications and improvements? APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 10
  11. 11. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,VIRAL INFECTION• Any derivative work must be released as open source• Is there a Publication Requirement?• Source Code must be provided or made available to all requestors•SSource C d must b posted Code t be t d• Your proprietary code is now open source !• You have just infected y j your customer !GREATEST RISK FROM AN IP PERSPECTIVE. APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 11
  12. 12. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,INFRINGEMENT INDEMNIFICATIONBeware of signing up to provide legal indemnification in theopen source software license agreementYou warrant against patent infringement and copyrightinfringementi fi tDo not take on legal risk g APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 12
  13. 13. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,Example from an End User License Agreement (EULA): p g ( )COMMERCIAL DISTRIBUTION“If a Contributor includes the Program in a commercial product offering, such Contributor (“Commercial Contributor”) hereby agrees to defend and indemnify every other Contributor (“Indemnified Contributor”) ( Indemnified Contributor ) against any losses, damages and costs (collectively “Losses”) arising from claims, lawsuits and other legal actions brought by a third party against the Indemnified Contributor to the extent caused by the acts or omissions of such Commercial Contributor in connection with its distribution of the Program in a commercial product offering” APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 13
  14. 14. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,INTELLECTUAL PROPERTY OBLIGATION IN THELICENSEIf you have knowledge that a party claims an intellectualproperty right in a particular functionality or code (or itsutilization under this license), you MUST include a text filewith th source code di t ib ti titl d “LEGAL” which ith the d distribution titled hi hdescribes the claim and the party making the claim insufficient detail that a recipient will know whom to contact. pTHIS AFFIRMATIVE OBLIGATION IS PROBLEMATIC. APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 14
  15. 15. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,PATENT STRATEGYDo you intend to seek patent protection for your work?Be Careful !Your iY issued patent may b worth l d t t be th less b because of an fexpress or implied license affiliated with the open sourcesoftware APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 15
  16. 16. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,PATENT STRATEGYExample of Grant of Rights in General Public License (GPL):“Subject to the terms of this Agreement, each Contributor hereby grants Recipient a non-exclusive worldwide royalty free patent license under non exclusive, worldwide, royalty-free Licensed Patents to make, use, sell, offer to sell, import, and otherwise transfer the Contribution of such Contributor, if any, in source code and object code form.”OR“You agree not to use any information derived from your review of the ou ag ee ot a y o at o de ed o you e e o t e Covered Code … for the purposes of asserting any of your patent rights.” APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 16
  17. 17. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,LINKING TO LIBRARIES AND DATABASESStatic vs. Dynamic LinkingStatic Linking may be deemed to be a derivative work andthus loss of proprietary statusDynamic Linking arguably allows you to maintain proprietarystatusThe current state of the Law is very much unsettled APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 17
  18. 18. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,EXPLORE NON OPEN SOURCE OPTIONS“The link encouraged me to contact the software company The and arrange for a commercial license…..but I clicked anyway.”“Many offerings are for a 30-Day Trial Demonstration.” APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 18
  19. 19. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,EXPORT COMPLIANCEPosting mods (a requirement of the license) can create anexport issueDoes the website require that you first interact with someoneto ddt address specification i ifi ti issues, applications, or d i li ti designs,prior to recommending a solution?Even correspondences with the Computer Science Dept. ata university, can land you in hot water! APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 19
  20. 20. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,POSTING OF MODIFICATIONSRegardless of the legal obligation to do so, my SoftwareProgrammers and Engineers want to post modifications andimprovements to a University web-site, in order to show theirexpertiseNot recommended APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 20
  21. 21. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,WHEN DO “OPEN SOURCE ISSUES” TYPICALLYARRISE ???When you acquire or sell off individual contracts programs contracts,or businesses via mergers & acquisitions or divestituresTransition of programs from development to productionT iti f f d l tt d tiFirst Commercial Sale APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 21
  22. 22. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,OPEN SOURCE INSURANCEA consulting outfit called Open Source Risk Managementhas partnered with Lloyds of London underwriter Kiln andbroker Miller Insurance Services to offer insurance againstopen-source liabilityOther consulting firms offer open source software scanningtechnology gy APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 22
  23. 23. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,TYPICAL CORPORATE MISCONCEPTIONCompany X appears to be under the impression that makingthe source code available to customers is at Company’s Company soption, when it is in fact a requirement of the license underwhich Company obtained the original source code“They are only getting object code, but they may be entitledto source code” (look at license & contract) ( ) APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 23
  24. 24. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,WHAT TO DO ???1. Establish and Use a Corporate Due Diligence Process. Preferably electronically on the Corporate Intranet Intranet.2. Extract the open source code, and insert a proprietary replacement. l t3. Company must clearly identify the existence of any open p y y y y p source in its products and inform customers of their rights to use, modify and distribute such open source. APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 24
  25. 25. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,WHAT TO DO???4. Read, Read, Read the documents. Cut through the legalese and boilerplate to try and understand what obligations the Company is undertaking.5. A k i t d5 Ask pointed questions : ti What to you plan to do with this software? Internal use only or distribution? ( y (the answer may y determine if the license even applies) Widely disseminated or closely held?6. Keep a meticulous record of open source content. APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 25
  26. 26. APPROVED FOR RELEASEBoeing Technology | Boeing Defense Space & Security Defense, APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 26
  27. 27. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,PRACTICAL ADVICE FOR SUPPLIER MANAGEMENTCONTRACTS:Recognize that open source software is coming “in the door” in in doorsoftware that is “licensed-in”Recognize that open source software is provided essentially “as asis” with no warranties or legal protectionDo not pass through non-existent warranties !!!Make open source issues grounds for termination of asubcontract thereby creating contractual and licensing remedies.subcontract, APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 27
  28. 28. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,Example of T’s & C’s addressing OSS: p g26.PROHIBITED SOFTWARE(a) This clause only applies to Work that includes the delivery of software.(b) As used herein, “Prohibited License” means the General Public License (“GPL”) or Lesser/Library GPL, the Artistic License (e.g., PERL), the Mozilla Public License, the Netscape Public License, the Sun Community Source License, the Sun Industry Standards License, or variations thereof, including without limitation licenses referred to as “GPL-Compatible, Free Software License.” (c) As used herein, “Prohibited Software” means software that incorporates or embeds software in, or uses software in connection with as part of bundled with or alongside any (1) open source publicly with, of, with, source, available, or “free” software, library or documentation, or (2) software that is licensed under a Prohibited License, or (3) software provided under a license that (a) subjects the delivered software to any Prohibited License, or (b) requires the delivered software to be licensed for the purpose of making derivative works or be redistributable at no charge, or(c) Obligates BUYER to sell, loan, distribute, disclose or otherwise make available or accessible to any third party (i) the delivered software, or any portion thereof, in object code and/or source code formats, or (ii) any products incorporating the delivered software, software or any portion thereof in object code and/or source code formats thereof, formats.(d) Unless SELLER has obtained BUYER’s prior written consent, which BUYER may withhold in its sole discretion, SELLER shall not use in connection with this Contract, or deliver to BUYER, any Prohibited Software. FOR RELEASE APPROVED SD08.23.04_Raufer.ppt | 28
  29. 29. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,JACOBSON V. KATZERFederal Circuit Opinion concerning the Artistic License, afact specific interpretationThe provisions requiring distribution to support an openenvironment were d i t deemed conditions of th li d diti f the license grant, tand not mere covenantsAs such, breach of these provisions subjected the Licenseeto a copyright infringement claim (preliminary injunction), notmerely a breach of contract claim APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 29
  30. 30. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,TRENDS IN OSS:More widely embracedMore code subject to OSS termsMore liti tiM litigationMore risk to Corporate Users when mixed with Proprietary p p yCode APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 30
  31. 31. APPROVED FOR RELEASE Open Source SoftwareBoeing Technology | Boeing Defense Space & Security Defense,CONCLUSIONIGNORING THE ISSUE WILL NOT MAKE IT GO AWAY:“If you are using software that you did not write yourself, youare either a Licensee or an Infringer!” APPROVED FOR RELEASE SD08.23.04_Raufer.ppt | 31

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