Os Vanlindberg

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Os Vanlindberg

  1. 1. The Absolute Minimum an Open Source Developer Needs to Know About Intellectual Property OSCON 2007 Van Lindberg July 26, 2007
  2. 2. Open Source and Intellectual Property – OSCON 2007 Preliminaries • Who am I? – I used to build distributed systems in Python – Now I practice IP law at Haynes and Boone – I have been involved with Open Source since ’94 • Why this talk? – Very few developers understand the law – Very few lawyers understand code – Part of what I do is work as a translator • Caveat 2
  3. 3. Open Source and Intellectual Property – OSCON 2007 “First, kill all the lawyers.” 3
  4. 4. Open Source and Intellectual Property – OSCON 2007 Open Source and Intellectual Property • The Myth: Open Source and Intellectual Property are antithetical • The Truth: Open Source is Open Source because of its unique relationship to Intellectual Property (more on that later) 4
  5. 5. Open Source and Intellectual Property – OSCON 2007 Intellectual Property 101 • IP is an intangible product of the mind • IP is treated as property because of government grant • IP can be sold, licensed, destroyed 5
  6. 6. Open Source and Intellectual Property – OSCON 2007 Four Kinds of Intellectual Property • Patents – inventions – protects implementations of an idea – ~20 years • Copyrights – expressions – protects the expression of ideas – ~90-150 years • Trademarks – symbols – protects the association of an idea with a mark – last forever, if actually used • Trade secrets – business secrets – protects specific information – last forever, if kept secret 6
  7. 7. Trademark Patent Trade Secret Copyright Copyright The different kinds of IP are not exclusive
  8. 8. Open Source and Intellectual Property – OSCON 2007 Patents • Can protect compositions of matter, articles of manufacture, processes, “new uses” of known products, new combinations of known elements, business methods – Cannot protect pure “ideas,” products of nature, mathematical algorithms, physical or chemical laws or principles, or abstract mechanisms • Must be New, Useful and Nonobvious – This doesn’t mean that a patent is new, useful or not obvious! – Must be “enabling” and show the “best mode” • The patent must be filed in time – One year absolute bar 8
  9. 9. Patents Patent No. Grant Claims Date Inventor Filing Date Specification
  10. 10. Open Source and Intellectual Property – OSCON 2007 Copyrights • ORIGINAL works of authorship FIXED in any tangible medium of EXPRESSION – only slight amount of originality required • but more than a phonebook listing • “purely functional” expressions not copyrightable • merger doctrine • Owner has exclusive rights: – To reproduce the work – To create “derivative works” – To distribute copies to the public – To display or perform the work publicly • Code is copyrighted – A non-dramatic literary work 10
  11. 11. Copyright Type of Work Title Author
  12. 12. Open Source and Intellectual Property – OSCON 2007 Trademarks • Any Word, Name, Symbol or Device Used to Identify the Source of a Product or Service (sound, color, configuration and even scent can function as a trademark) • Must be distinctive; must be protected • Examples: 12
  13. 13. Trademarks The Trademark Description First Use of Goods Date Registration No. Owner
  14. 14. Open Source and Intellectual Property – OSCON 2007 Now, about Open Source… • Open Source is created by the license of a copyrighted work • Just as with closed source software, the license grants people greater rights than those allowed by copyright • The difference is the scope of the rights granted 15
  15. 15. Open Source and Intellectual Property – OSCON 2007 Question: I have a cool idea. Who owns it? • By default, the creator owns the IP – Creative works must be assigned • BUT: Most employers have IP assignment agreements – Even if not, some courts have implied a a duty to assign • “Works for Hire” – Works prepared by an employee within the scope of employment – Works specially commissioned for use as a contribution, if the parties signed a document calling the work a “work made for hire.” 16
  16. 16. Open Source and Intellectual Property – OSCON 2007 Who owns the idea, cont. • Example: Who owns software created by an independent contactor? • The independent contractor – all the company has is a license unless there is a written assignment from the contractor • Thus, the FSF's copyright assignment agreement 17
  17. 17. Open Source and Intellectual Property – OSCON 2007 Who owns the idea, cont. • Principles: – Look at what you sign(ed) – Be open with your employer …in writing – Don’t use your employer’s resources 18
  18. 18. Open Source and Intellectual Property – OSCON 2007 Question: I just received a patch… • Who owns it? – The person that made the patch • What does that mean? – Copyright resides with that person, including all exclusive rights – The person has impliedly licensed you, and others, to use that patch – You cannot exceed the scope of that license • Example: The Linux Kernel – Regardless of the GPLv2 vs. GPLv3 debates, it could be difficult to re-license 19
  19. 19. Open Source and Intellectual Property – OSCON 2007 Contributors, cont. • Principles: – Examine the scope of what you are doing – Have a contributor agreement which explicitly grants all rights • make it sublicensable • allow re-licensing – For large projects, consider explicit copyright assignment 20
  20. 20. Open Source and Intellectual Property – OSCON 2007 Question: There is a cool GPL module… • The GPL is generally valid • Enforces distribution • The GPL license attaches to “derivative works” • What the **** does that mean? 21
  21. 21. Open Source and Intellectual Property – OSCON 2007 GPL, cont. The Darth Vader Scale of Derivative Works “Mere Aggregation” Incorporation Plugins, Dynamic Linking Static Linking 22
  22. 22. Open Source and Intellectual Property – OSCON 2007 GPL, cont. • Principles: – Look at the scope of your integration – Look at the scope of your distribution – Realize that its not just about the law, its about the community 23
  23. 23. Open Source and Intellectual Property – OSCON 2007 Question: GPLv2 vs. GPLv3 • Problems with GPLv2: – Globalization: terms tied to U.S. Copyright law – Digital Rights Management – “Tivoization” – Software Patents • The GPLv3 was designed to address these issues • ...Unfortunately, that meant more lawyers 24
  24. 24. Open Source and Intellectual Property – OSCON 2007 Question: GPLv2 vs. GPLv3, cont. • Globalization: – New terms “convey, propagate, covered works” – Interpretation still tied to copyright law, just not necessarily U.S. copyright law – Definitions are now provided within the license itself • Digital Rights Management – The DMCA implements Article 11 of the WIPO Copyright treaty of 1996 – The GPLv3 requires waiver of the DMCA (and similar) circumvention provisions • “Tivoization” – If a company using GPL'd software is able to install a modified binary in a “user product,” the user should be too. 25
  25. 25. Open Source and Intellectual Property – OSCON 2007 Question: GPLv2 vs. GPLv3, cont. • Software Patents: – The GPLv3 includes an explicit patent grant – The Novell-Microsoft deal is grandfathered in – ...but similar deals are banned • Other Issues: – The “ASP Loophole” Termination – Additional clauses and terms – License compatibility – 26
  26. 26. Open Source and Intellectual Property – OSCON 2007 Question: GPLv2 vs. GPLv3, cont. • As of this morning: – 235 projects have adopted GPLv3 – 12 projects have adopted LGPLv3 – 2884 projects are licensed GPLv2 or later – 23 projects are licensed LGPLv2.1 or later – ~60K projects on Sourceforge 27
  27. 27. Open Source and Intellectual Property – OSCON 2007 Thanks! •Questions? • Contact me: – van.lindberg@haynesboone.com – van.lindberg@gmail.com (Jabber/GTalk too) 28

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