Intro to Open Source:
Licensing; IP and Copyright considerations

Greg Jones

Associate General Counsel

Novell, Inc.

Disclaimers

This presentation is intended for persons over the age of (18) who are not convicted felons; nor have any other agenda besides a desire to protect themselves or their loved ones.

I'm an attorney, but I'm not your attorney

If you need legal advice, see another attorney

The views expressed in this presentation are those of the presenters and are not necessarily shared by Novell

One more disclaimer (randomly selected from the Internet ):

Overview

Open Source v. Proprietary Software

Open Source and IP Basics

Development by an Organization

Development by Collaborating Organizations

Product Release

End User Experience

Conclusions

Proprietary v. Open Source

A radical departure from everything we know?

Deja vu all over again?

OR

Open Source and IP Basics

IP Basics

Open Source v. Public Domain

Open Source Licenses

Ambiguities

Intellectual Property Basics

Computer Software and Intellectual Property

Trade Secret

Trademark

Patent

Copyright

Subject Matter

Exclusive Rights

Standard for Infringement

Works of authorship (including computer programs)

Reproduce, prepare derivative works, distribute, perform, and display

Literal or non-literal (i.e., substantial similarity)

New useful, and non-obvious inventions

Make, use, sell, and import

Includes “doctrine of equivalents”

Symbol that identifies goods in commerce

Commercial use of the mark

Likelihood of confusion

Information subject to confidentiality measures that has value because it is not generally known

Enforce contractual obligations

Breach of contractual obligations

Intellectual Property Remedies

Remedies for Intellectual Property Infringement

Trade Secret

Trademark

Patent

Copyright

Injunction

Damages

Other

Yes

Actual or up to $100,000

Other remedies include attorney's fees and criminal penalties

Yes

Yes

• Defendant's profits, Plaintiff's damages, and Plaintiff's costs

• If intentional, treble damages

Yes

Various measures are used

• Plaintiff's lost sales and profits, or royalty

• If willful, treble damages

Open Source v. Public Domain

“Public Domain” and “Open Source” are not synonyms

Open Source = “freely available” source code

Public Domain = source code with no “owner”

The status of an invention, creative work, commercial symbol, or any other creation that is not protected by a form of intellectual property. Items that have been determined to be in the public domain are available for free copying and use by anyone.

So, Open Source may mean either

Public Domain, or

Available under an Open Source license

Why does it matter?

The majority of open source is not public domain

Most open source is intellectual property, the owner allows its use subject to license requirements

Open Source License Agreements

Standard agreements

The Open Source Definition by Bruce Perens

www.opensource.org (more and more approved licenses)

Why is there no “Novell Open Source License”?

GPL is the Open Source License for Linux

Novell uses the GPL and open source licenses

Ambiguities

Copyleft Licenses

Examples: GPL, LGPL, CPL, etc.

Core concept - - if “derivative works” are distributed externally, they must be made available in source code form under the same license

Legal standard for “derivative work”

Legal standard for copyright infringement

Development by a Company (SoftCo)

Proprietary Model

Open Source Model

Observations

Proprietary Model
Ownership

Components owned by SoftCo

Preexisting SoftCo materials

Preexisting third party materials assigned to SoftCo

New materials developed by personnel / contractors

Components owned by third parties

Preexisting materials licensed to SoftCo

SDKs, drivers, more

Possibly OSS

Overall Product - - SoftCo (compilation copyright)

Proprietary Model
Legal Documents

IP agreements with SoftCo personnel

Inbound license agreements with third parties

SDK license agreements

Inbound license agreements (e.g., drivers)

OSS licenses

Subcontractor agreements with third parties

IP assignment agreements with third parties

Nondisclosure agreements

Open Source Model
Ownership

Generally the same as proprietary

Differences

Amount of preexisting third party materials greater?

More jointly developed / owned materials?

Open Source Model
Legal Documents

IP agreements with SoftCo personnel

Inbound OSS licenses

Copyright assignment agreements (possibly)

Observations

Identifying the license agreement for a package

The license proliferation problem

Personnel and IP

Dual license model and copyright assignment

“You can have confidence in a proprietary OS, because it has only one owner.”

Questionable advice:

Development among Many

Proprietary Model

Open Source Model

Observations

Proprietary Model

Ownership

Much of the earlier discussion applies

Ownership arrangement among proprietary partners

Each partner licenses its materials to others

Joint developments are jointly owned and licensed for use in the project

Relevant legal documents

All the agreements identified in the earlier discussion

Joint development agreements

Open Source Model

Ownership - - same as the earlier discussion

Relevant legal documents

Generally the same as the earlier discussion

May involve development agreements

Observations

OSS is a very efficient model for collaboration

The number of licensors in an OSS project may be greater

The number of individuals may not be greater

Release of a Product

Proprietary Model

Open Source Model (commercial)

Open Source Model (non-commercial)

Observations

Proprietary Model

Product is developed and tested

Export clearances are obtained

EULA for the product is prepared

Copyright applications are filed

Patent applications are filed

Trademarks are cleared and applications filed

Support and services program put in place

Open Source Model (commercial)

Generally the same as proprietary

Differences

Source code materials will typically be included

EULA may emphasize license rights to third party modules

Fees

Generally no license fees (especially if GPL-based)

Subscription fees instead

Support

Upgrade protection

Open Source Model (non-commercial)

Generally the same as proprietary

Differences

A general EULA may not be prepared (the OSS license is used instead)

No export clearance is required (if truly OSS)

No support and services programs

In practice, copyright registrations and patents are not pursued

Observations

Export control and OSS

Copyright applications

Benefits of copyright registration

Compilation copyright concept (respective rights of the contributors of components and the “compiler”)

OSS and Patents

OSS and Trademarks

End User Experience

Proprietary Model

Open Source Model (commercial)

Open Source Model (non-commercial)

Observations

Proprietary Model

End user license agreement

Product

Bundled third party products

Indemnification (for major customers)

Support and maintenance agreement

OSS Model (commercial)

Generally the same as proprietary

Difference

OSS licenses for OSS components included as source code

Open Source Model (non-commercial)

Differences from proprietary and commercial OSS

OSS license for every component

No indemnification

No support and maintenance

Observations

Questionable advice to end users

“Commercial OS has one owner”

“Review all OSS licenses”

“Inventory all OSS”

Role of indemnification in the purchase decision

Patent risks for proprietary software and OSS

Conclusions

Questionable “advice” may make OSS appear more different or complicated than it is

Especially so with commercial OSS

Proprietary and OSS more alike than dislike

Novell Corporate Presentation Template 2005

2003-12-08T12:43:39