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2008 07 30 Legal Issues In Open Source


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Slides used at presentation given at the 2008-07 Palmetto Open Source Software Conference - Legal Issues in Open Source: Patents, Trademarks, Copyrights, and Licenses

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2008 07 30 Legal Issues In Open Source

  1. 1. Legal Issues in Open Source: Patents, Trademarks, Copyrights and Licenses Calhoun “Reb” Thomas Thomas Law Firm 803-748-0336 July 30, 2008
  2. 2. This work is licensed under the Creative Commons Attribution- Noncommercial-No Derivative Works 3.0 United States License. To view a copy of this license, visit or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA.
  3. 3. Software Is Different  Software is the only type of property can can be protected by both copyright and patent law  Software is also normally protected by contract law (GPL, etc) and often by trade secret law (proprietary software)  The open source software model is the opposite of a trade secret 3
  4. 4. Giving It Away? Is giving software away a business model? Netscape browser Four Freedoms (not free beer) To use for any purpose To share with others To change as you want To share your changes 4
  5. 5. Copyrights & Patents  Article I Section 8 of our Constitution “The Congress shall provides that have the power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” 5
  6. 6. Copyrights  In general, copyright law provides that the author of a work has the exclusive right to use, distribute, modify and display the work  However, the copyright to a work belongs to an employer in the case of a “work made for hire”  Employees vs independent contractors 6
  7. 7. Copyrights  “Work made for hire” and the independent contractor – get an assignment - not all works are covered  Copyright can last a long time!  Life of the author plus 70 years  Works for hire – lesser of 95 years after publication or 100 years after creation 7
  8. 8. Copyrights  Expression vs idea  “Copyleft” – a short way of trying to describe what the GPL and other similar licenses do by contract  Copyleft depends on copyright  The licenses permit a user to use, modify and redistribute covered software on the same Copyleft terms 8
  9. 9. Copyrights  Digital Millennium Copyright Act (DMCA)  Making or trafficking in software or devices whose primary purpose is defeating technological measures that control access is illegal.  GPLv3 attempts to prevent GPLv3 covered software from being used to “lock-out” (DRM) other users 9
  10. 10. Trademarks  Trademarks are primarily governed by Federal law  States trademark law is usually not important for software  A trademark identifies the source of origin of a product  Example: Cuil for search engine and advertising services (Gaelic word for both knowledge and hazel) 10
  11. 11. Trademarks  Arbitrary or fanciful marks are much better than descriptive or generic marks  Examples (good & bad):  RED HAT for software and services  JAVA for software  STARBUCKS for coffee  BED & BATH for selling bed & bath items  QUIK-PRINT for copying services 11
  12. 12. Trademarks  Merely registering a mark as a domain name does not provide trademark rights  Registering domain name involves entering into a contract  “The registrant... represents that ... the selected domain name, to the best of the registrant's knowledge, does not interfere with or infringe upon the rights of any third party” 12
  13. 13. Trademarks  If you are planning to bring a product or service to market, start as early as possible with your intent-to-use (ITU) trademark application  For example: Cuil, Inc. filed an ITU application on April 11, 2008 (they should have filed much earlier, but ...)  Madrid Protocol 13
  14. 14. Patents  Similar to Copyright law in that Patent law is Federal law, states may not legislate in this area  A patent is an intangible form of personal property  Patents only have national effect  Patent Cooperation Treaty (PCT) 14
  15. 15. Patents  Over 7.4 million utility patents have been issued by the USPTO  Tuesday the Patent Office issued approximately 3,000 utility patents  The Patent Office received almost 500,000 patent applications in 2007  Almost half are filed from other countries 15
  16. 16. Patents  Most recent patent issued yesterday 16
  17. 17. Patents  Granted to an individual or individuals who invents or discovers a process (method), machine, article of manufacture, composition of matter, or improvement thereof  For software the focus is usually on a “process” or this is often called a “method” or “business method” patent 17
  18. 18. Patents  Must be new, useful and non-obvious to one of ordinary skill in the art  Must be an “invention” – not just an idea – you need complete conception and reduction to practice  Patent is the opposite of a trade secret – must fully disclose the invention  Non-obviousness is key (peertopatent) 18
  19. 19. Patents  Utility and design patents  The term of a utility patent ends 20 years after the date of application  Term of design patent ends 14 years after date of issuance  Applications are typically published 18 months after filed - average patent takes about 2-4 years to issue 19
  20. 20. Patents  Having an issued patent does not give the holder the “right” to actually make their claimed invention, but it does give them the right to exclude others from:  making  using  selling  offering for sale  importing the invention 20
  21. 21. Example of growing backlog  Recent news – Microsoft is sued for patent infringement by Gotuit Media Corp. for infringing 3 patents  U.S Patent No. 5,892,536 - Systems and Methods for Computer Enhanced Broadcast Monitoring, issued on April 6, 1999; U.S. Patent No. 5,986,692 - Systems and Methods for Computer Enhanced Broadcast Monitoring, issued on November 16, 1999; U.S. Patent No. 7,055,166 - Apparatus and Methods for Broadcast Monitoring, issued May 30, 2006  First one filed in 1996 only took about 2.5 years to issue  Third one filed in 1999 took over 7 years to issue 21
  22. 22. OSI List of Different Licenses  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 quot;Lesserquot; General Public License (LGPL), GNU Library or quot;Lesserquot; 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), 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  This is probably not all and there will be more coming 22
  23. 23. Some of the Groups  Free Software Foundation (  Software Freedom Law Center   Apache Software Foundation  Mozilla Foundation  Open Software Initiative  23
  24. 24. Main Licenses  GNU General Public License (GPL)  Lesser GPL  Apache License  Berkeley Software Distribution (BSD)  Eclipse Public License (EPL)  MPL (Mozilla or Microsoft?)  Common PL and CDDL 24
  25. 25. Open Source in Mobile Phones  LiMo Foundation says it will use the GPL, Mozilla and its own “Foundation Public License or FPL  Nokia -> Symbian Foundation – moving the Symbian mobile operating system to open source over the next 2 years using the EPL  Google (Android) using Apache License 25
  26. 26. Final Thoughts  Affero – GPL for “software as a service” or SaaS  USPTO Peer Review Pilot (also known as extended & expanded to include business method patents  MPL can even mean the Microsoft Public License or Microsoft Reciprocal License (two OSI approved licenses) 26