"Crash Course" on Open Source Silicon Flatirons Center (2012)


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2012 "crash course" presentation to the Silicon Flatirons Center at the University of Colorado School of Law. Covering an overview of legal issues involving open source software

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  • Having a strategy at all can be an important objective Assume that use is happening and set a goal of knowledge and compliance
  • "Crash Course" on Open Source Silicon Flatirons Center (2012)

    1. 1. Copyright 2011 Holme, Roberts & Owen LLP“Crash Course” on Open SourceJason D. Haislmaierjason.haislmaier@hro.com@haislmaier
    2. 2. Copyright 2011 Holme, Roberts & Owen LLPOpen Source SoftwareThis presentation is intended for general informational purposes only and should notbe 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 inparticular circumstances. Please consult counsel concerning your own situationand any specific legal questions you may have.The thoughts and opinions expressed in this presentation are those of the individualpresenters and do not necessarily reflect the official or unofficial thoughts oropinions of their employers.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 theCreative Commons Creative Commons Attribution-Share Alike 3.0 United StatesLicense available at: http://creativecommons.org/licenses/by-sa/3.0/us.Disclaimer and Rights
    3. 3. Copyright 2011 Holme, Roberts & Owen LLPWho’s using open source?not
    4. 4. Copyright 2011 Holme, Roberts & Owen LLP“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]CIOLarge mobile software developer(and major patent holder)
    5. 5. Copyright 2011 Holme, Roberts & Owen LLPCommercial Open Source
    6. 6. Copyright 2011 Holme, Roberts & Owen LLPNew trendsEvolutionOpen Source SoftwareThe Evolution of
    7. 7. Copyright 2011 Holme, Roberts & Owen LLPA brief and (very) unofficial history. . .
    8. 8. Copyright 2011 Holme, Roberts & Owen LLP“Free” SoftwareEvolution of Open Source
    9. 9. Copyright 2011 Holme, Roberts & Owen LLP• 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 onsource code– The “GNU” operating system• 1984 - Work on the GNU operating system begins• 1985 - Stallman founds the Free Software Foundation (FSF) topromote the free software ideology• 1986 - Stallman authors the Free Software Definition defining theprinciples of “free” softwareEvolution of Open SourceThe “Free” Software Ideology
    10. 10. Copyright 2011 Holme, Roberts & Owen LLP“The word "free" does not refer to price; it refers tofreedom. The freedom to copy a program and redistributeit to your neighbors so that they can use it as well as you.The freedom to change a program, so that you can controlit instead of it controlling you; for this, the source codemust be made available to you.”Evolution of Open SourceRichard StallmanFounder, Free Software Foundation
    11. 11. Copyright 2011 Holme, Roberts & Owen LLPEvolution of Open SourceRichard StallmanFounder, Free Software Foundation“You should think of ‘free’ as in ‘free speech,’not ‘free’ as in ‘free beer’.”
    12. 12. Copyright 2011 Holme, Roberts & Owen LLP• Free Software “Definition” embodied in 4 basic freedoms0 - Run the program, for any purpose1 - Study how the program works, and adapt it to your needs2 - Redistribute copies so you can help your neighbor3 - Improve the program, and release your improvements to thepublic, 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 thingsEvolution of Open SourceThe Free Software Definition
    13. 13. Copyright 2011 Holme, Roberts & Owen LLP“Open Source” SoftwareEvolution of Open Source
    14. 14. Copyright 2011 Holme, Roberts & Owen LLP• 1989 - Version 1 of the GNU General Public License (GPL) ispublished 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 theDebian open source software project– Based on the Free Software Definition– Defines the principles under which Debian will be made availableas “free” softwareEvolution of Open SourceThe Rise of Open Source Software
    15. 15. Copyright 2011 Holme, Roberts & Owen LLP• 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 thecommercial software industry by advocating theuse of “open source” software– Perens adapts and repurposes the DFSG and FSDto form the Open Source Definition (OSD) to definethe principles of “open source” softwareThe Rise of Open SourceEvolution of Open Source
    16. 16. Copyright 2011 Holme, Roberts & Owen LLP“FOSS”Free and Open Source SoftwareEvolution of Open Source
    17. 17. Copyright 2011 Holme, Roberts & Owen LLP• The “Open Source Definition” (OSD) articulates the principles alicense 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”The Open Source DefinitionOpen Source Licenses
    18. 18. Copyright 2011 Holme, Roberts & Owen LLPApproved Open Source Licenses• The OSI maintains a certification program to approve licenses ascompliant 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 OSDOpen Source Licenses
    19. 19. Copyright 2011 Holme, Roberts & Owen LLPCopyleftAcademicVeryPermissive• Berkley SoftwareDistribution License(BSD)• MIT License• W3CLessPermissive• Apache SoftwareLicense• Eclipse Public License• Artistic LicenseLessRestrictive• Mozilla Public License(MPL)• CommonDevelopment andDistribution License(CDDL)• Common PublicLicense (CPL)• IBM Public LicenseMoreRestrictive• GNU GPL v2• GNU GPL v3• GNU LGPL v2.1• GNU LGPL v3• Affero GPL v2• Affero GPL v3Single Definition – Many LicensesOpen Source Licenses
    20. 20. Copyright 2011 Holme, Roberts & Owen LLP“Copyleft”All Rights ReversedCopyrightAll Rights ReservedOpen Source Licenses
    21. 21. Copyright 2011 Holme, Roberts & Owen LLPOpen source software islicensed softwareOpen source licensesmake the software “open source”Open Source Licenses
    22. 22. Copyright 2011 Holme, Roberts & Owen LLPUnderstand the similaritiesUnderstand the differencesUnderstand why they matterOpen Source Licenses
    23. 23. Copyright 2011 Holme, Roberts & Owen LLP• License flows with code– Unilateral set of permissions– No negotiation– No affirmative assent needed• Use “Permissions” (with boundaries)– Source and object code forms– Copy, modify, and distribute– May allow other end users to dothe same• Limited or No Licensor Obligations– No warranties– No updates/upgrades– No support obligations– No infringement indemnification• Legally enforceable (and enforced)Open Source• “Arms-length” agreement– “Meeting of the minds”– Often negotiated– Affirmative assent (sign, click, etc.)• Use “Restrictions”– Object code only– Limited copying and use– No reverse engineering– No distribution• Robust Licensor Obligations– Warranties– Updates/upgrades– Support and maintenance– Infringement indemnification• Legally enforceable (and enforced)ProprietaryOpen Source Licenses
    24. 24. Copyright 2011 Holme, Roberts & Owen LLP• Permissive• Minimal requirements• Notice– Copyright ownership– License applicability• Attribution– Authors of original code– Contributions to the original code• Application only to the original code– Derivatives and modifications not covered– Non-“viral”• License flows with the code, but. . .– High level of compatibility with otherlicenses– Relicensing permitted under other licensesAcademic• Restrictive• Extensive requirements• Notice and attribution• Availability of source code• Application beyond the original code– Covers derivative works (and perhapsother modifications)– “Viral”• License must flow with the code– Potential license incompatibilities– Limited or no release under other licenses• Often include patent licenses– Express or implied– Covering licensed code and contributions• Other requirements. . .CopyleftOpen Source Licenses
    25. 25. Copyright 2011 Holme, Roberts & Owen LLPIs Copyleft anti-Copyright?Copyleft and Copyright
    26. 26. Copyright 2011 Holme, Roberts & Owen LLP• 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 tochoose how to enforce (or not enforce) their copyright• Each open source license is intended to act as a set ofpermissions (and restrictions) granted by a copyright owner undertheir 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. . .Open Source Licenses Depend on CopyrightCopyleft and Copyright
    27. 27. Copyright 2011 Holme, Roberts & Owen LLPJust how differently?Copyleft and Copyright
    28. 28. Copyright 2011 Holme, Roberts & Owen LLP“We’re ‘ok.’ We don’t distribute software. ”Cloud
    29. 29. Copyright 2011 Holme, Roberts & Owen LLPCloud
    30. 30. Copyright 2011 Holme, Roberts & Owen LLPExample: 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?Open Source in the Cloud
    31. 31. Copyright 2011 Holme, Roberts & Owen LLPExample: GPLv2• GPLv2 is triggered by distribution• Merely running the program is not covered by the licenseOpen Source in the Cloud
    32. 32. Copyright 2011 Holme, Roberts & Owen LLPExample: GPLv3• GPLv3 is triggered by a “conveyance”• Specifically does not include use over a networkOpen Source in the Cloud
    33. 33. Copyright 2011 Holme, Roberts & Owen LLPExample: AGPLv3• The Affero GPLv3 expressly covers use over a network• Treats use over a network as a distribution or conveyance is treatedunder the GPLOpen Source in the Cloud
    34. 34. Copyright 2011 Holme, Roberts & Owen LLP“So doesn’t this mean that the GPLis the new BSD license. . . and thatGoogle is the new Microsoft ?”Bradley KuhnFormer executive director of the FSFOpen Source in the Cloud
    35. 35. Copyright 2011 Holme, Roberts & Owen LLPWhat constitutes a “distribution”of software under the GPL?
    36. 36. Copyright 2011 Holme, Roberts & Owen LLPWhat is the consequence of a“distribution” of software under the GPL?
    37. 37. Copyright 2011 Holme, Roberts & Owen LLP• 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 belicensed under the terms of the GPLExample: GPLv2License Interpretation
    38. 38. Copyright 2011 Holme, Roberts & Owen LLP• GPLv2 definitions refer to a “derivative work” under applicablecopyright law as a guide• But, also provide their own interpretation of what would be included as a“work based on the program”Example: GPLv2License Interpretation
    39. 39. Copyright 2011 Holme, Roberts & Owen LLPWho decides how to interpretopen source licenses?License Interpretation
    40. 40. Copyright 2011 Holme, Roberts & Owen LLP• 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 theProgram” 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 softwareExample: GPLv2License Interpretation
    41. 41. Copyright 2011 Holme, Roberts & Owen LLP• 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-dependantExample: GPLv2License Interpretation
    42. 42. Copyright 2011 Holme, Roberts & Owen LLP• 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, thecopyright owner has the power to decide which interpretation to adoptExample: GPLv2License Interpretation
    43. 43. Copyright 2011 Holme, Roberts & Owen LLPWhat happens when a difference ininterpretation occurs?
    44. 44. Copyright 2011 Holme, Roberts & Owen LLP
    45. 45. Copyright 2011 Holme, Roberts & Owen LLPGoogle essentially copied hundreds of files of Linux codethat were never meant to be used as is by applicationdevelopers, "cleaned" those files using a non-standard andquestionable technical process, and then declared that thecode was no longer subject to the GPLv2, so thatdevelopers could use it without becoming subject to thecopyleft effect that would normally apply to GPLv2-licensedcode taken from the Linux kernel.Source: http://www.brownrudnick.com/nr/pdf/alerts/Brown%20Rudnick%20Advisory%20The%20Bionic%20Library-Did%20Google%20Work%20Around%20The%20GPL.pdfAttacks on Android
    46. 46. Copyright 2011 Holme, Roberts & Owen LLP• 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 kerneldue 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 mustthemselves 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 riskAttacks on Android
    47. 47. Copyright 2011 Holme, Roberts & Owen LLP• Google incorporated Linux kernel header files (and derivative works of thosefiles) 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 andinvoke the functions of the Linux kernel• The question: Does this matter?Allegations Against BionicAttacks on Android
    48. 48. Copyright 2011 Holme, Roberts & Owen LLP• 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 ofoperation)• Copying of interfaces to create compatible (independent) software has alsobeen viewed as fair use.– If available, fair use provides an unlicensed user with a defense to copyrightinfringement– 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.Status of Header Files Under Copyright LawAttacks on Android
    49. 49. Copyright 2011 Holme, Roberts & Owen LLP• 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 resultin a derivative work of the Linux kernel• General acceptance that not all portions of header files are copyrightable• Uncertainty as to which portion of header files are copyrightable• Highly fact-based analysisStatus of Header Files Under the GPLAttacks on AndroidSomeone recently made the claim that including a header filealways makes a derivative work.Thats not the FSFs view. Our view is that just using structuredefinitions, typedefs, enumeration constants, macros with simplebodies, etc., is NOT enough to make a derivative work.It would take a substantial amount of code (coming from inlinefunctions 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
    50. 50. Copyright 2011 Holme, Roberts & Owen LLP• The version of GPLv2 used by the Linux kernel includes an additional exception:• Permits applications and other programs to link to the functionality of the Linuxkernel 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 BionicNot 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?Attacks on AndroidNOTE! This copyright does *not* cover user programs thatuse kernel services by normal system calls - this is merelyconsidered normal use of the kernel, and does *not* fallunder the heading of a “derived work”. Also note that theGPL below is copyrighted by the Free Software Foundation,but the instance of code that it refers to (the Linux kernel) iscopyrighted by me and others who actually wrote it.Source: http://www.kernel.org/pub/linux/kernel/COPYINGStatus of Header Files Under the GPL
    51. 51. Copyright 2011 Holme, Roberts & Owen LLP• Even with other examples of non-infringing Linux libraries that are not licensedunder the GPL, it is possible that:– Bionic includes copyrighted code from the Linux kernel (e.g., coming from inlinefunctions 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 libraryRisk to Android?Attacks on Android
    52. 52. Copyright 2011 Holme, Roberts & Owen LLP• Even if Bionic is subject to GPLv2, are applications running on Android alsosubject to GPLv2?• Solid legal arguments exist that this is not the caseRisk to Android Applications?Attacks on AndroidIf the Bionic header files remain subject to GPLv2, there is aconsiderable risk that applications using them become subject to GPLv2as well.Source: http://www.brownrudnick.com/nr/pdf/alerts/Brown%20Rudnick%20Advisory%20The%20Bionic%20Library-Did%20Google%20Work%20Around%20The%20GPL.pdfIf GPLv2 applies to Android applications, developers’ ability todifferentiate on the Android platform would be seriously impaired,because they would be required to release the source code of theirapplications [under GPLv2] and would be precluded from limiting howanyone, including competitors, uses that code.
    53. 53. Copyright 2011 Holme, Roberts & Owen LLP• Strong legal argument that merely linking one independent program to anotherdoes not create a derivative work• Also well-settled that running an application on a GPL-licensed OS does notcreate a derivative work and cause the application to come under the GPLRisk to Android Applications?Attacks on AndroidSource: "The Unreasonable Fear of Infection", Lawrence RosenSimply combining a copyrighted work with another work does notcreate a derivative work. The original copyrighted work must bemodified in some way. The resulting derivative work must itself“represent an original work of authorship.” So if the licensee doesn’tmodify the original GPL-licensed program, but merely runs it, he isnot creating a derivative work.Consider the scenario where the Linux operating system, a GPL-licensed program, loads and executes a proprietary program. TheLinux program is not modified; it is merely used for the purpose forwhich it was designed. The proprietary program does not “contain”nor is it “derived from” Linux. Linux does not infect the proprietaryprogram, and the proprietary program does not become subject tothe GPL.Source: "The Unreasonable Fear of Infection", Lawrence Rosen
    54. 54. Copyright 2011 Holme, Roberts & Owen LLP• 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 constitutea derivative work• May create a compilation or collective work• Collective works or compilations are collections of separate and independentlycopyrighted worksAttacks on AndroidRisk to Android Applications?
    55. 55. Copyright 2011 Holme, Roberts & Owen LLP• Linus Torvalds has stated in the past that applications and other programsrunning on Linux do not become subject to the GPL• His comments regarding these allegations reiterate this point• As the owner of the copyright in significant portions of the Linux kernel, Torvaldsis the one with legal standing to bring a claim for violation of the Linux copyrightWhat Does The Community Have to Say?Attacks on Android“It seems totally bogus, we’ve always made it very clear that thekernel system call interfaces do not in any way result in a derivedwork as per the GPL.”Source: Linus Torvalds, as quoted in LKML, http://lkml.org/lkml/2003/12/3/228“User programs are _clearly_ not derived works of the kernel, andas such whatever the kernel license is just doesn’t matter.”Source: Linus Torvalds, as quoted in Network World - http://www.networkworld.com/community/node/72428
    56. 56. Copyright 2011 Holme, Roberts & Owen LLPPatentsPatent “Aggression”Nothing New to Open Source
    57. 57. Copyright 2011 Holme, Roberts & Owen LLPNothing 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 MicrosoftPatent Aggression
    58. 58. Copyright 2011 Holme, Roberts & Owen LLP• 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 infringedseveral patents, notably:– 5,522,077 - Object oriented network system for allocating ranges of globally unique object identifiersfrom 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 placev.The Firestar CaseFirestar Software, Inc v. Red Hat, Inc et al(Case No.: 2:06cv258)Patent Aggression
    59. 59. Copyright 2011 Holme, Roberts & Owen LLP• 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 softwareincluding 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?The Firestar SettlementPatent Aggression
    60. 60. Copyright 2011 Holme, Roberts & Owen LLP• 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 companyAmphion 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 infringingThe Firestar Follow-OnPatent Aggression
    61. 61. Copyright 2011 Holme, Roberts & Owen LLP• February 2009, Microsoft files suit against GPS device maker TomTomalleging infringement of eight patents• Among them, patent numbers 5,579,517 and 5,758,352 for techniques forimplementing a “common name space for long and short filenames”• Covering Microsofts FAT32 file system• Microsoft claims the suit is not a direct attack on LinuxMicrosoft v. TomTomPatent Aggression
    62. 62. Copyright 2011 Holme, Roberts & Owen LLP• March 2009, TomTom countersues Microsoft• Alleging infringement of four TomTom patents related to TomTom’sStreets and Trips programPatent AggressionMicrosoft v. TomTom
    63. 63. Copyright 2011 Holme, Roberts & Owen LLP• As part of its defense strategy, TomTom also joins theOpen Innovation Network (OIN)Patent AggressionMicrosoft v. TomTom
    64. 64. Copyright 2011 Holme, Roberts & Owen LLP• March 30, 2009 – Microsoft and TomTom settle all issues• Specific financial terms not disclosed• TomTom to pay Microsoft an undisclosed amount for coverage undereight Microsoft patents for car-navigation and file-management systems• Microsoft to receive coverage under four TomTom patents (no paymentrequired by Microsoft)Patent AggressionMicrosoft v. TomTom
    65. 65. Copyright 2011 Holme, Roberts & Owen LLP• 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 managementsystems patents provided in a manner that is fully compliant with TomTom’sobligations 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 filemanagement system patents (the ‘FAT LFN patents’), which enables efficientnaming, organizing, storing and accessing of file data. TomTom will remove thisfunctionality within two years, and the agreement provides for coverage directlyto 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 agreementsPatent AggressionMicrosoft v. TomTom
    66. 66. Copyright 2011 Holme, Roberts & Owen LLP• 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 projectsPatent AggressionMicrosoft Patent Licensing
    67. 67. Copyright 2011 Holme, Roberts & Owen LLPMicrosoft Patent LicensingPatent AggressionSource: Microsoft Corporation• 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
    68. 68. Copyright 2011 Holme, Roberts & Owen LLPAndroid Patent AggressionPatent Aggression
    69. 69. Copyright 2011 Holme, Roberts & Owen LLPAndroid Patent AggressionPatent Aggression
    70. 70. Copyright 2011 Holme, Roberts & Owen LLPHow are companiesdefending against this threat?Patent Aggression
    71. 71. Copyright 2011 Holme, Roberts & Owen LLPPatent 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
    72. 72. Copyright 2011 Holme, Roberts & Owen LLPPatent AggressionPatent Purchases• U.S. Department of Justice (DoJ) intervened• 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 applicationsidentified as related to virtualization software– All Novell patents will be acquired subject to GPLv2 and theOpen Invention Network (OIN) License– CPTN may not limit which patents are available under the OIN License“As originally proposed, the deal would jeopardize the ability of opensource software, such as Linux, to continue to innovate andcompete in the development and distribution of server, desktop, andmobile operating systems, middleware, and virtualization products.”“Although the department will allow the transaction to proceed, it willcontinue investigating the distribution of the Novell patents to theCPTN owners.”
    73. 73. Copyright 2011 Holme, Roberts & Owen LLPPatent AggressionPatent Purchases• July 2011 – Nortel Networks announces $4.5 billion sale of patent assetsto 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
    74. 74. Copyright 2011 Holme, Roberts & Owen LLPPatent AggressionPatent Purchases• August 2011 – Google announces $12.5 billion purchase of handsetmanufacturer 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
    75. 75. Copyright 2011 Holme, Roberts & Owen LLP• 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.comPatent AggressionPatent Pooling
    76. 76. Copyright 2011 Holme, Roberts & Owen LLP• 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 othermembers• Licenses apply within the “Linux System”• Analogous to patent non-assertion pools established around technical standardsPatent AggressionPatent Pooling
    77. 77. Copyright 2011 Holme, Roberts & Owen LLP• OIN has led to initiatives to assist in stemming the issuance of poor quality patentsthrough cultivating prior art against patent applications• Other patent cooperative organizations exist as well under similar modelsPatent AggressionPatent Pooling
    78. 78. Copyright 2011 Holme, Roberts & Owen LLPPatent AggressionSource: Linux Today - http://www.linuxtoday.com/infrastructure/2010050100535NWSWLLPatent Pooling• Rumors of pools being assembled against open source projects as well. . .
    79. 79. Copyright 2011 Holme, Roberts & Owen LLPConclusionWhere 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 areincreasingly 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
    80. 80. Copyright 2011 Holme, Roberts & Owen LLPThank You.Jason Haislmaierjason.haislmaier@hro.com@haislmaier