Van Lindberg gave a presentation on the basics of intellectual property for open source developers. He discussed the four main types of IP - patents, copyrights, trademarks, and trade secrets. For copyrights and patents, he explained what qualifies for protection and the duration of protection. For open source projects, contributors retain copyright unless it is explicitly assigned. The GPL license enforces distribution and applies to derivative works. GPLv3 addressed issues with GPLv2 like globalization and software patents, but its additional terms caused controversy. In the Q&A, Lindberg emphasized examining license scopes and having clear contributor agreements.

1. The Absolute Minimum an Open
Source Developer Needs to Know About
Intellectual Property
OSCON 2007
Van Lindberg
July 26, 2007

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
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3. Open Source and Intellectual Property – OSCON 2007
“First, kill all the
lawyers.”
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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)
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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
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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
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7. Trademark
Patent
Trade Secret
Copyright
Copyright
The different kinds of IP are not exclusive

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
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9. Patents Patent
No.
Grant Claims
Date
Inventor Filing Date
Specification

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
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11. Copyright Type of Work
Title
Author

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:
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13. Trademarks
The
Trademark
Description
First Use
of Goods
Date
Registration No.
Owner

15. 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
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16. 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.”
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17. 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
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18. 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
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19. 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
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20. 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
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21. 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?
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22. Open Source and Intellectual Property – OSCON 2007
GPL, cont.
The Darth Vader Scale of Derivative Works
“Mere Aggregation” Incorporation
Plugins, Dynamic Linking Static Linking
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23. 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
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24. 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

25. 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.
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26. 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
–
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27. 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
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28. Open Source and Intellectual Property – OSCON 2007
Thanks!
•Questions?
• Contact me:
– van.lindberg@haynesboone.com
– van.lindberg@gmail.com
(Jabber/GTalk too)
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