Open Source Licensing
An Introduction
Presentation outline:
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Basic intellectual property law
(Very) basic software
History and philosophy of open source
General outline of types of open source licenses
Analysis of individual licenses
Risks and benefits of open source
The open source idea in other contexts
Conclusion
Part I
Basic Intellectual
Property Law
What is intellectual property?
“Intellectual property refers to creations of the
mind: inventions, literary and artistic works, and
symbols, names, images, and designs used in
commerce.” What is Intellectual Property?, World Intellectual Property Organization (WIPO),
http://www.wipo.int/about-ip/en/
There are three types of
intellectual property
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1. Expressions
2. Ideas
3.Unique commercial identifiers
Copyright Law
Protecting
Expressions
What is the Legal Basis of
Copyright Law?
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U.S. Const. Art. 1 § 8 Cl. 8.
The Copyright Act, 17 U.S.C. §§ 101 et
seq.
The Berne Convention for the Protection
of Literary and Artistic Works
What is copyrightable?
“[O]riginal works of authorship fixed in any
tangible medium of expression, now known or
later developed, from which they can be
perceived, reproduced, or otherwise
communicated, either directly or with the aid of
a machine or device.” 17 U.S.C. § 102.
How does a work become
copyrighted?
As soon as a work is fixed in a
tangible medium, copyright
subsists.
What protections does copyright
law provide? 17 USC § 106
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A copyright holder has the exclusive right:
To make copies of the work
To prepare derivative works
To distribute copies of the original work or
derivative works
For certain types of works, to perform the work
For certain types of works, to perform the work
Copies
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The original is the first copy
Any duplicate is a copy
All instances of a software program are
copies
All open source licenses grant the right to
make copies
There is no limitation on the means made
to make a copy
Derivative Works
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“[A] work based upon one or more
preexisting works, such as a translation . .
. or any other form in which a work may be
recast, transformed, or adapted.” 17
U.S.C. § 101.
Collective Works
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“A work . . . in which a number of
contributions, constituting separate and
independent works in themselves, are
assembled into a collective whole.” 17
U.S.C. § 101.
Joint Works
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“A ‘joint work’ is a work prepared by two or
more authors with the intention that their
contributions be merged into inseparable
or interdependent parts of a unitary
whole.” 17 U.S.C. § 101.
Copyright Chain of Title
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“The copyright in a compilation or derivative
work extends only to the material contributed by
the author of such work, and does not imply any
exclusive right in the preexisting material. The
copyright in such work is independent of, and
does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright
protection in the existing material. 17 U.S.C. §
103.
Copyright Exceptions for Software
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The owner of a copy has a right to make a
copy; would otherwise be useless
The owner of a copy has a right to make a
copy for archival purposes.
Patent Law
Protecting Ideas
What is the legal basis for patent
law?
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U.S. Const. Art. 1 § 8 Cl. 8.
The U.S. Patent Act, 35 U.S.C. §§ 1 et
seq.
What is patentable?
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“[A]ny new and useful process, machine,
manufacture, composition of matter, or
any new and useful improvement thereof.”
17 U.S.C. § 101
Must be novel, useful, and non obvious
and be patentable subject matter.
How does a work become
patented?
Obtaining a patent is difficult and time consuming.
An inventor must file a patent application with the
patent office in every country in which he or she
wishes to have a patent. The patent may be later
overturned by a court if it is insufficient.
What protections does patent law
provide?
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Gives patent holder right to exclude others from:
Making anything with his or her invention
Using anything embodying his or her invention
Selling or offering to sell anything embodying his
or her invention
Importing anything embodying his or her
invention
Copyright Exceptions for Software
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Owner of a copy has a right to make a
copy; would otherwise be useless
Owner of a copy has a right to make a
copy for archival purposes. See Rosen at
25-26
Patent Chain of Title
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Only one patent owner for any work
There is no open source definition for
patent licenses
Assigning Ownership
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Transferring ownership of a copyright,
patent or trademark itself, not merely
rights associated with it
Not usually helpful for open source; an
open source license generally provides
the same protections that an assignment
of ownership would.
Trademarks
Protecting unique commercial
identifiers
What is the legal basis for
trademark protection?
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The U.S. Trademark Act, 15 U.S.C. §§
1501 et seq.
The common law
What is a trademark?
The unique identifying mark that
distinguishes the goods or
services of one merchant from
those of another.
What protections does trademark
law provide?
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Keeps other merchants from using
another merchant’s unique identifying
mark.
Licenses
What is a license?
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Grants permission to use a copyrighted work
Can grant any or all of the rights associated with
copyright
Can impose other restrictions, such as type or
place or usage, or duration of the license
Does not transfer ownership of the copyright
Contracts
Must have three things:
- Offer
- Acceptance
- Consideration
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Part II
Software Basics
Software
“[A] general term used to
describe a collection of
computer programs, procedure
and documentation that perform
some tasks on a computer
system.” Wikipedia.
Hardware
The physical parts of a
computer, as opposed to
software, which exists inside the
computer
There are two types of code for
software
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Object code
Source code
Source Code
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“Programming statements created by a
programmer.” Kennedy at 2
In human readable form
Easy to modify
Most license agreements do not allow for
access to source code
Programmers use a compiler to turn it into
object code
Object Code
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Also called executable code
“The instruction sequence for the
computer processor.” Kennedy at 2.
Not human readable
Most software is distributed in object code
form
Part III
Open Source
Software
What is open source software?
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Open source software is software that is
subject to an open source license.
An open source licensor must give the
licensee certain rights to be considered
open source
Basically, the licensee has the right to use,
modify or distribute the software, and the
right to access the source code.
Is it the same as free software?
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Generally yes
Free software was the original name
Open source began being used to allay
the concerns of proprietary software
companies that were thinking of utilizing or
developing free software
Prominent Open Source
Programs
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Apache Web Server
Mozilla and Firefox web browsers
Linux
BIND
MySQL
Prominent Open Source Vendors
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IBM
Red Hat
Sun Microsystems
The History of Open Source
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Richard Stallman, the GNU operating System,
the Free Software Foundation, and the General
Public License (GPL)
Bill Joy, UNIX and the Berkeley Software
Distribution License (BSD)
Open source comes of age – Linux, Mozilla,
Apache et al., and the corporate licenses
The Open Source Initiative
What are the OSI and the OSD?
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The Open Source Initiative (OSI) is the de facto
standards body for open source software. It
determines what open source means, and
approves licenses as being open source
The Open Source Definition (OSD) is a set of
criteria that a license must conform to to be
considered open source. The OSI maintains the
definition and changes it from time to time.
The Open Source Definition
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1. Free Redistribution. “The license
shall not restrict any party from selling or
giving away the software as a component
of an aggregate software distribution
containing programs from several different
sources, The license shall not require
royalty or other fee for such sale.”
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2. Source Code. “The program must include source
code, and must allow distribution in source code as well
as compiled form. Where some form of a product is not
distributed with source code, there must be a well
publicized means of obtaining the source code for no
more than a reasonable reproduction cost, preferably,
downloading via the Internet without charge. The source
code must be the preferred form in which a programmer
would modify the program. Deliberately obfuscated
source code is not allowed. Intermediate forms such as
the output of a preprocessor or translator are not
allowed.”
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3. Derived Works. “The license must
allow modifications and derived works,
and must allow them to be distributed
under the same terms as the license of the
original software.”
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4. Integrity of the Author’s Source Code.
“The license may restrict source-code from
being distributed in modified form only if the
license allows the distribution of ‘patch files’ with
the source code for the purpose of modifying the
program at build time. The license must
explicitly permit distribution of software built from
modified source code. The license may require
derived works to carry a different name or
version number from the original software.”
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5. No Discrimination Against Persons or
Groups. “The license must not discriminate
against any person or group of persons.”
6. No Discrimination Against Fields of
Endeavor. “The license must not restrict
anyone from making use of the program in a
specific field of endeavor. For example, it may
not restrict the program from being used in a
business, or from being used in genetic
research”
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7. Distribution of License. “The rights
attached to the program must apply to all
to whom the program is redistributed
without the need for execution of an
additional license by those parties.”
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8. License Must Not Be Specific to a Product.
“The rights attached to the program must not
depend on the program’s being part of a
particular software distribution. If the program is
extracted from that distribution and used or
distributed within the terms of the program’s
license, all parties to whom the program is
redistributed should have the same rights as
those that are granted in conjunction with the
original software distribution.”
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9. License Must Not Contaminate
Other Software. “The license must not
place restrictions on other software that is
distributed along with the licensed
software. For example, the license must
not insist that all other programs
distributed on the same medium must be
open-source software.”
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10. License Must Be Technology
Neutral. “No provision of the license may
be predicated on any individual technology
or style of interface.”
Part IV
Open Source Licenses In
General
There are several types of
software licenses:
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The GPL, or “copyleft” family of licenses
The BSD/academic family of licenses
The Mozilla/corporate type licenses
Other open source licenses
Traditional proprietary licenses
Shareware/freeware
Public domain (not a license, but a way of
accessing software)
The GPL family of licenses
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Basic rights under the GPL – access to
source code, right to make derivative
works
“Copyleft”
The Library or Lesser General Public
License
The BSD family of licenses
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Same basic rights as GPL
No copyleft provisions, i.e. licensees can
take software licensed under the BSD
private
Can re-release software under a different
license
Mozilla/corporate licenses
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More expertly drafted
Serve as a model for later commercial
licenses
Different provisions on relicensing
No copyleft
Other Open Source Licenses
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There are over fifty (50) other open source
licenses
The IBM Common Public License, the MIT
X license, and the Artistic License are
examples
The open source community discourages
writing one’s own license in order to
prevent license proliferation
Shareware/Freeware
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May be free or may not
Licensor does not provide the right to
make derivative works or give access to
source code
Public Domain
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Author retains no copyright rights if software is in
the public domain
Open source software authors retain copyright
rights
Open source licenses contain restrictions, just
different ones than licensees may be used to
The restrictions in open source licenses are
based on copyright law and depend on it for
their effectiveness.
Part V
Some Specific Open
Source Licenses
The GNU General Public License
(GPL)
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Part license, part manifesto
Reciprocity/Copyleft
Purpose is to increase amount of publicly
available software and ensure
compatibility
Licensees have right to modify, use or
distribute software, and to access the
source code
Problems with the GPL
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Linking to GPL programs
No explicit patent grant
Does no discuss trademark rights
Does not discuss duration
Silent on sublicensing
Relies exclusively on license law, not
contract
The Library or Lesser General
Public License (LGPL)
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Written to deal with the linking problem in
the GPL discussed above
Provides that programs that merely link to
a program in a library are not subject to
copyleft
If licensee makes a derivative work of the
library, copyleft applies
The Berkeley Software
Distribution License (BSD)
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No copyleft/reciprocity provision
Does not mention patents
Other BSD type academic
licenses
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MIT
Apache
Artistic License
The Mozilla Public License (MPL)
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Professionally written
Includes an explicit patent grant, including
a reciprocal grant for contributors
Includes many specific provisions that are
absent in the GPL and BSD but which are
often in licenses.
The Common Public License
(CPL)
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Developed and owned by IBM
Includes a limited patent license
Contains a reciprocity provision
Contains a patent defense provision
Indemnity provision
The Open Source License and
the Academic Free License
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Mirror images of each other, except the
AFL does not include reciprocity
provisions and the OSL does
Addresses aspects of copyright left out by
other licenses, such as scope and
duration
Grants a patent license
Retains name and trademark of licensor
Multiple Licensing and other
strategies
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Microsoft’s Shared Source License
Public Source
Multiple Licensing
Licensing in phases
Part VI
Risks and Benefits of
Open Source
Software
Legal Risks
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Intellectual property infringement
No warranties
Copyleft
Copyright attribution and notice requirements
Enforcement
Ambiguous license terms
Consumer protection laws
License management
Licenses have not been construed by an American Court
Licenses may be revocable
Uncertain interpretation
Forking (not a legal risk, but still a risk)
Benefits
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Increased user base
Longer useful life
Increased stability
Security
Scalability
Innovation
Cost
Adaptability
How do licensors make money
with open source software?
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Usually by providing other services, such as:
Support
Training
Customization
Integration
Certification
Offering warranties
Part VII
The Open Source
Idea in Other
Contexts
Open Content
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“Describes any kind of creative work
published in a format that explicitly allows
copying and modifying of its information by
anyone, not exclusively by a closed
organization, firm, or individual.” From
Wikipedia, the world’s largest open source project.
Creative Commons
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Creative Commons Licenses
Baseline rights
Various Licenses
Creative Commons International
Other Open Content
Organizations
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Creative Commons International
http://creativecommons,org/international/
Science Commons (a Creative Commons Project)
http://sceincecommons.org
Open Educational Resources Commons (OER)
http://www.oercommons.org/
Open Content (http://www.opencontent.org/
For more see the Google Directory,
http://www.google.com/Top/Computers/Open_Source/O
pen_Content/ (providing a list of websites dedicated to
open source)
Other open content licenses
include:
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GNU Free Documentation License
Open Content License
Free Art License
Open Game License
October Open Game License
Considerations before licensing with Creative
Commons or other open content license
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Make sure you understand what rights you
are retaining and which ones you are
giving up
Make sure you own the copyright
Make sure your work is subject to
copyright law
“Be specific about what you are licensing”
(creative commons FAQs)
Part VII
Further Reading
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LAWRENCE ROSEN , OPEN SOURCE LICENSING: SOFTWARE FREEDOM
AND INTELLECTUAL PROPERTY LAW (Prentice Hall Professional and
Technical Reference 2004), available at
http://www.rosenlaw.com/oslbook.htm. The best book on open source
licensing. Gives an in-depth but not overly detailed overview of issues
regarding open source licensing. Includes the text of some o the more
popular open source licenses and point-by-point analysis of some of the
most important licenses.
http://www.opensource.org - the online home of the Open Source Initiative,
the de facto standards body of the open source movement. Provides a list
of and the text of all OSI approved licenses. Sets out the open source
principles, answers frequently asked questions, and provides helpful links
Dennis M. Kennedy, A Primer on Open Source Licensing Legal Issues:
Copyright, Copyleft and Copyfuture, (2001), available at
http://www.denniskennedy.com/opensourcedmk.pdf.
http://creativecommons.org - the open source idea in non software contexts
On the business issues:
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Eric S. Raymond, The Magic Cauldron, available
at http://www.catb.org/~esr/writings/magiccauldron/magic-cauldron.html/, (discussing how
to make money on open source)
David A. Wheeler, “Why Open Source
Software/Free Software (OSS/FS, FLOSS, of
FOSS)? Look at the Numbers!,” available at
http://www.dwheeler.com/oss_fs_why.html#histo
ry (reviewing literature on and discussing the
benefits of open source versus proprietary
software)
Lists of open source projects
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http://freshmeat.net
http://sourceforge.net
On open source software
generally
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Eric S. Raymond, The Cathedral and the
Bazaar: Musings on Linux and Open
Source by an Accidental Revolutionary
(O’Reilly Media 2001), available at
http://www.catb.org/~esr/writings/cathedral
-bazaar/
Part IX
Conclusion
Like anything else, open source has
both risks and benefits (for licensors
and licensees)
They are neither an unmitigated good, nor
particularly dangerous. Before using them, either
to license your work or accepting work subject to
them, you should evaluate your own situation and
make an individual determination. General
information cannot take into account your
And on a similar note,
remember . . .
This presentation is not legal advice. Legal advice can
only be provided with regards to specific factual
circumstances in the context of an attorney-client
relationship. This presentation does not establish an
attorney-client relationship. If you have any further
questions that you are unable to answer yourself after
reasonable efforts, contact the Department of Legal
Affairs, 304 Holladay Hall, 515-3071