Open Source Licensing: Recent Developments and Events
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Open Source Licensing: Recent Developments and Events Gordon & Glickson LLC Law Seminars International Current Developments in Copyright Law Philadelphia, Pennsylvania September 28, 2005 2 This presentation is intended to alert the reader to some of the legal issues discussed herein. The impact of the law for each particular situation depends on a variety of factors, therefore we strongly recommend you engage legal counsel to assess and help minimize your legal liability based on the particular requirements of your institution. Like any presentation, this is not meant to be used as a substitute for legal counsel. © 2005 Gordon & Glickson LLC. 3 Open Source Licensing • Brief History – GPL – General Public License (Version 2) • Free Software Foundation – Richard Stallman • Source Code Available to End Users • No Copying Restrictions • No Redistribution Restrictions • “Forcing” Restrictions – Distribution Ramifications – “Free As In Speech – Not As In Price” – Non-Proprietary Model – Antithesis of Copyright Model – FSF Preparing GPL 3 – Due In 2007 • Growth/Development – Over Time Many Alternatives Have Arisen • Academic/Government • Private – Multiple Levels of Complexity Depending on Source © 2005 Gordon & Glickson LLC. 4 Open Source Front Line • Open Source Initiative – www.opensource.org – Outlines 50+ Variations – Excellent Templates – Certification Process – Cutting Back on Varieties • Free Software Foundation – http://www.gnu.org/home.html – Focal Point of “Movement” – Source of the GPL – Working on GPL 3 (For 2007 Distribution) • More Global Perspective • Software Patent Considerations • Web Services © 2005 Gordon & Glickson LLC. 5 Open Source Variations • Academic/Government – GPL – General Public License (v.2) – LGPL – Less General Public License (v.2.1) – BSD – Berkeley Software Directive (“New” – see MIT) – MIT – MIT Public License NASA Open Source Agreement (v.1.3) – NASA – NASA Open Source Agreement (v.1.3) • Private – Apache Software License (v.2) – Computer Associates (v.1.1) – IBM Public License – Intel Public License (Recently Withdrawn) – MPL – Mozilla Public License (1.1) – Sun Public License – Sybase Open Watcom Public License © 2005 Gordon & Glickson LLC. 6 Open Source Variations • Noteworthy Characteristics (Academic) – GPL • Highly viral – use infects “new code” • No Control Over “Forced” Distribution Rights • LGPL has less coverage (allowing for proprietary libraries) – BSD (www.bsd.org) • Much less viral than GPL – allow code to go “closed” • Focuses on warranty/damage limitation – MIT • Focuses on “substantial portions” of code • Much less viral than GPL – allow code to go “closed” • Does not apply to “new code” – NASA • Focus on Patent Rights/Distribution Issues • Also contemplates issuance of warranties © 2005 Gordon & Glickson LLC. 7 Open Source Variations • Private Flavors – Apache (v.2.0) • Focus on “Derivative Works” For Coverage • Covers IP Rights • Parallels MIT Regarding Non-Covered Code – Mozilla (v.1.1) (www.mozilla.org) • Clearly worded/much use of defined terms • Focus on “Larger Works” and “Covered Code” • Much less viral than GPL • One of most popular versions over last several years – Computer Associates • Less Viral • More Choice of Allowing Coverage For “Modifications” – IBM • Focus on “Derivative Works” For Coverage • Less Viral – Sun and Sybase • Parallels IBM and CA © 2005 Gordon & Glickson LLC. 8 Open Source Today • Alive and Vibrant – Very Much In State of Evolution – Focus on Lower Costs/Reaches For Best Part of Model • International Scope – Australia – Mandates Public Entities To Use – Brazil – Backs Use of Open Source At Federal Level – China/Japan/ROK – Private Joint Ventures/Banks – Denmark – Promotion of Use By Public Entities – Germany – Municipal Shifts/Insurance Companies – India – Continuation of eCommerce Activities – Malaysia – Stepped Up Implementation – Spain – Part of Hardware Distribution – South Africa – Development Efforts – United Kingdom – Government Use © 2005 Gordon & Glickson LLC. 9 Open Source Today – U.S. • Huge Momentum Play – Government and Private • Avalanche Corporate Technology Cooperative – www.avalanchecorporatetechnology.net – Best Buy, Jostens, Select Comfort, Cargill, Medtronic – Cost Sharing/Indemnification of Members • Government Open Code Collaborative (www.gocc.gov) – Group of Agencies (State and Local) – Share Open Source Code • Federal Efforts – DOL – Workforce Connections (GPL) – NASA/OSHA/DOD – http://workforceconnections.dol.gov/ • Other States/Cities – Massachusetts – Total Conversion To Open Source By 2007 – Indiana – Implementation of Linspire On High School Desktops – CA, MO, KS, OK, OR, PA, RI, TX, WI, WV – Los Angeles/Chicago © 2005 Gordon & Glickson LLC. 10 Private Endeavors – U.S. • Networking Level Seeing Most Effort – Great Penetration – Internet Infrastructure – Network Environments – Same Level of Effort – Market For Servers Running Linux – $9 Billion by 2008 – Growing Use of Programming Libraries – Growing Acceptance By Management – Note Unilever Cancellation of Migration Plan • Was To Be Completed In 2006 • Cost Advantage “No Longer Clear” • Microsoft Brick Wall – 90+% Desktop Penetration – Transition Costs – Data Issues/Staff Training – Familiarity Concerns – Look and Feel Issues – Shared Source Initiative – 20 Products – Watch Linspire 5.0 (Formerly Lindows) – Growing Fast © 2005 Gordon & Glickson LLC. 11 Industry Efforts – U.S. • Internet Services – Amazon.com – Linux – Google – Linux – Yahoo – FreeBSD • Financial Services – Credit Suisse First Boston – Merrill Lynch – NASDAQ • Entertainment – Industrial Light and Magic – Linux – DreamWorks – Linux – Pixar Animation – Linux – Ritz Camera – Linux • Oil Exploration – Royal Dutch Shell – Linux/IBM – WesternGeco – Linux © 2005 Gordon & Glickson LLC. 12 Technology Suppliers – U.S. • Acer – Linux Option For Home PCs • BEA Systems – Application Server Platform (Linux) • BMC Software – Provides Service For Linux • Borland Software – Linux Version of Delphi • Computer Associates – Multiple Linux Apps – Replicating IBM – Releasing 14 Patents • HP – Linux Division Established • IBM – January 2005 Release of Patents • Novell – Multiple Apps • Oracle – Linux Support For Apps • SAP – mySAP on Linux • Sun – Linux Desktop Including StarOffice • Veritas – Storage Management (Linux) © 2005 Gordon & Glickson LLC. 13 Open Source Traps/Issues • Licensing Issues To Consider – Good For Internal Use Applications – Problems For Distributed Code • Forces Application of Provisions Onto “Proprietary” Portions • Potential Loss of Revenue Stream – Debate Over Coverage • Stallman – No Difference • Torvalds – Exceptions • Know What You’re Getting – Huge Trap For Unwary – Know Code Pedigree – Title To Code Can Be Jeopardized © 2005 Gordon & Glickson LLC. 14 Open Source Considerations • Model #1 – Development For Distribution – Development Staff Creates Code For Software Product – Product To Be Sold/Licensed – Proprietary Model – Lines From OSS Are Inserted Into Code – What Happens To Your Rights To Product? – What Happens As Your (Indemnified) Customers Find Out? • Model #2 – Development For Internal Use Only – Development Staff Creates Code For Internal Use – Product Not To Be Licensed (No Income Stream) – Is The App Going To Be A Competitive Breakthrough? • Model #3 – Acquisitions of Third Parties – Each of Above Considerations Applies Here Also – Due Diligence Is Key • Know What You’re Getting ! ! ! © 2005 Gordon & Glickson LLC. 15 OSS Best Practices/Thoughts • Create Implementation Policy – Key Considerations – Business Model • Products To Be Licensed? • Revenue Stream? – Integration of OSS Into Company Products • Restrictions on Distribution Rights • Licensing Fees May Be Undercut – Track Pedigree of Sources • Where Did Your Code Come From? – 56% Admit To Using Open Source Code – Up From 38% In 2001 • Copyright Infringement From “Community” • Internal Developer Handling Policies – Educate Developers On Copyright Law – Keep Careful Records of Authorship – Make Sure Trade Secrets/Copyrights Not Being Waived © 2005 Gordon & Glickson LLC. 16 OSS Best Practices/Processes • Oversight Committee – Pre-Approval of OSS Use Necessary • Staffing – Legal and Technical • Careful Documentation of Decisions – Access To All Necessary Expertise – Focal Point – Train Staff As To Terms and Enforcement • Approval Process – Careful Documentation – Should Create Detailed Product Pedigree • Timing of Process – Impose Very Early In Development – Avoid Production/Integration Conflicts © 2005 Gordon & Glickson LLC. 17 SCO Group v. IBM. • Suit Filed in March 2003 – $1 Billion – SCO Allegedly Controls Rights To UNIX – IBM Distributes AIX Flavor of UNIX – SCO Alleges Linux Infringes UNIX Code • “Substantial” Amount of Code Involved • Unfair Competition w/ UNIX • No Copyright Claims • Public Battles – SCO Warning Letters To UNIX Users (Few Takers) – SCO Warning (in June 2003) To IBM Rescinding AIX Rights – SCO Licensing Initiative on Linux – IBM Counterclaims – Patent Infringement and GPL © 2005 Gordon & Glickson LLC. 18 SCO Effects • SCO Litigation Status – Trial Set For February 2007 – Suits Against UNIX Licensees • Red Hat v. SCO (8/4/03) • SCO v. Novell (1/20/04) • SCO v. Autozone (3/2/04) • SCO v. Daimler-Chrysler (3/4/04) • All Stayed Pending SCO/IBM Decision – Check SCO’s Litigation Website • www.sco.com/scoip/lawsuits • Links to Actual Filings – Evolution of Theories • From Trade Secrets • To Copyrights – IBM Very Aggressive – Copyright Violations – IBM SJ Motion Denied – SCO Case Weakened © 2005 Gordon & Glickson