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O'reilly Books Intellectual Property and Open Source ,ip_roadmap.18464 Page ii Thursday, July 3, 2008 10:38 AM Other resources from O’Reilly Related titles Applied Software Producing Open Source Management Software Hackers & Painters The Cathedral & the Bazaar Open Sources Understanding Open Open Sources 2.0 Source and Free Software Licensing oreilly.com oreilly.com is more than a complete catalog of O'Reilly books. You'll also find links to news, events, articles, weblogs, sample chapters, and code examples. oreillynet.com is the essential portal for developers inter- ested in open and emerging technologies, including new platforms, programming languages, and operating sys- tems. Conferences O’Reilly brings diverse innovators together to nurture the ideas that spark revolutionary industries. We specialize in documenting the latest tools and systems, translating the innovator’s knowledge into useful skills for those in the trenches. Visit conferences.oreilly.com for our upcoming events. Safari Bookshelf (safari.oreilly.com) is the premier online reference library for programmers and IT professionals. Conduct searches across more than 1,000 books. Sub- scribers can zero in on answers to time-critical questions in a matter of seconds. Read the books on your Bookshelf from cover to cover or simply flip to the page you need. Try it today for free. main.title Page iii Monday, May 19, 2008 11:21 AM Intellectual PropertyTomcat ™ andThe Open Definitive Source Guide Jason Brittain and Ian VanF. Darwin Lindberg Beijing • Cambridge • Farnham • Köln • Sebastopol • Taipei • Tokyo Intellectual Property and Open Source by Van Lindberg Copyright © 2008 Van Lindberg. All rights reserved. Printed in the United States of America. Published by O’Reilly Media, Inc., 1005 Gravenstein Highway North, Sebastopol, CA 95472. O’Reilly books may be purchased for educational, business, or sales promotional use. Online editions are also available for most titles (http://safari.oreilly.com). For more information, contact our corporate/institutional sales department: (800) 998-9938 or [email protected]. Editor: Andy Oram Indexer: Ellen Troutman Zaig Production Editor: Sumita Mukherji Cover Designer: Karen Montgomery Copyeditor: Amy Thomson Interior Designer: David Futato Proofreader: Nancy Reinhardt Illustrator: Robert Romano Printing History: July 2008: First Edition. Nutshell Handbook, the Nutshell Handbook logo, and the O’Reilly logo are registered trademarks of O’Reilly Media, Inc. Intellectual Property and Open Source and related trade dress are trademarks of O’Reilly Media, Inc. Many of the designations used by manufacturers and sellers to distinguish their products are claimed as trademarks. Where those designations appear in this book, and O’Reilly Media, Inc. was aware of a trademark claim, the designations have been printed in caps or initial caps. While every precaution has been taken in the preparation of this book, the publisher and authors assume no responsibility for errors or omissions, or for damages resulting from the use of the information contained herein. ISBN: 978-0-596-51796-0 [M] 1215097554 CONTENTS PREFACE ix 1 THE ECONOMIC AND LEGAL FOUNDATIONS OF INTELLECTUAL PROPERTY 1 Law and Code 3 The Types of Intellectual Property 4 Intellectual Property and Market Failure 6 Evaluating the System 18 2 THE PATENT DOCUMENT 21 The Construction of a Patent 22 The Face of the Patent 23 Conception of the Invention 27 The Body of the Patent 37 The Claims 44 Other Resources 47 3 THE PATENT SYSTEM 49 The Patent System As a Knowledge Cache 50 Requirements for Getting a Patent 51 Getting a Patent 60 Patent Proliferation 65 4 COPYRIGHT 71 Copyright in Context 71 The Terms of Copyright 83 The Copyright Term 92 Owning a Copyright 93 The Rights Granted by Copyright 96 5 TRADEMARKS 103 Trademarks Defined 103 The Economic Function of Trademarks 107 Modern Trademark Law in the United States 110 6 TRADE SECRETS 119 Trade Secrets Defined 120 The Flaming Moe: The Life and Death of a Trade Secret 120 Trade Secrets and Software Development 129 Trade Secrets, Businesses, and Consultants 131 7 CONTRACTS AND LICENSES 133 Licenses and Firewalls 133 v Why Contracts and Licenses Matter 134 Contract Law Principles 138 Intellectual Property Contracts 146 Applying a License to Intellectual Property 150 8 THE ECONOMIC AND LEGAL FOUNDATIONS OF OPEN SOURCE SOFTWARE 153 A Brief Digression into Terminology 154 Understanding Open Source 155 Credit Unions and Open Source: An Analogy 155 The Role of Open Source Licenses 168 The Open Source Definition 172 Different Types of Open Source Licenses 177 9 SO I HAVE AN IDEA... 179 Cautionary Tales 179 Employees and Inventions 182 Look At What You Sign 182 The Employer-Employee Relationship 187 Tell the Company 193 What Do You Do? 195 10 CHOOSING A LICENSE 197 Why Do I Need a License? 197 No License Required 198 Proprietary Commercial Licensing 200 Open Source Licensing 201 Why You Should Not Write Your Own License 204 Choosing an Open Source License 207 11 ACCEPTING PATCHES AND CONTRIBUTIONS 215 Back to (Copyright) Basics 215 Three Solutions 217 Administrative Issues 221 12 WORKING WITH THE GPL 223 Daily Life with the GPL 224 Understanding the Terms of the Debate 226 Linking and Licensing 228 Copyright Confusion 229 Thinking About Derivative Works 232 Questions and Answers 235 13 REVERSE ENGINEERING 239 Storming the Castle 239 A Sample Reverse Engineering Procedure 245 The Digital Millennium Copyright Act 251 14 INCORPORATING AS A NON-PROFIT 253 Why Incorporate Your Project? 253 Creating a Non-Profit Entity 257 vi C O N T E N T S Operating a Non-Profit Organization 263 Umbrella Organizations As an Alternative 268 A SAMPLE PROPRIETARY INFORMATION AGREEMENT (PIA) 271 B OPEN SOURCE LICENSE LIST 281 C FREE SOFTWARE LICENSE LIST 285 D FEDORA LICENSE LIST AND GPL COMPATIBILITY 289 E PUBLIC DOMAIN DECLARATION 299 F THE SIMPLIFIED BSD LICENSE 301 G THE APACHE LICENSE, VERSION 2.0 303 H THE MOZILLA PUBLIC LICENSE, VERSION 1.1 309 I THE GNU LESSER GENERAL PUBLIC LICENSE, VERSION 2.1 319 J THE GNU LESSER GENERAL PUBLIC LICENSE, VERSION 3 329 K THE GNU GENERAL PUBLIC LICENSE, VERSION 2, JUNE 1991 333 L THE GNU GENERAL PUBLIC LICENSE, VERSION 3, JUNE 2007 341 M THE OPEN SOFTWARE LICENSE, VERSION 3.0 355 INDEX 359 C O N T E N T S vii PREFACE I have a workbench in my garage where I keep some of my woodworking tools. While I am not a great carpenter—actually, I’m a pretty terrible carpenter—I still enjoy building things and working with the wood. Although I have had my workbench set up for several years, I am always a little bit tentative when I first use a new power tool. I have learned to respect the fact that tools can be useful, but they can also be difficult or dangerous if not used correctly. To adopt a phrase used with some other tools, it can be too easy to shoot yourself in the foot. This book is about a tool that we use called intellectual property—IP for short. We use IP to allocate value and create incentives in society. Just like many other powerful tools, IP can be very useful, but it can also be difficult to work with. You can (easily!) shoot yourself in the foot with intellectual property if you don’t understand how and why this tool works. Unfortunately, there are few topics quite as misunderstood as intellectual property. Take a detour through the comments section of almost any recent Slashdot discussion. Many contributors begin their comments with, “IANAL, but...” (“I am not a lawyer, but...”) and then attempt to describe a legal principle, often incorrectly. Part of my job each day is to work as a translator—translating from “lawyer” to “engineer” and back. For lawyers, I describe the interactions between computers, networks, and code. For engineers, I describe how to work with the legal system. My goal for this book is to raise the level of understanding and discussion about intellectual property and software. If we understand the function and rationales behind IP law, we can work with IP more easily, discuss it more fluently, and work together to improve it where necessary. What This Book Is...and Is Not This book is meant to be a developer’s documentation for the legal system. As with any other tool, the workings and results of the legal system can seem inscrutable until the assumptions and processes underlying the code are laid bare. This book will unravel the United States’ intellectual property system by showing how it is composed of a number of interlocking, interoperating parts—patents, copyrights, trademarks, trade secrets, and some contracts, all of which act according to their own internal logic and demands. As much as possible, the minutiae ix of case names, Latin terms, and general legalese will be laid aside as implementation details; instead, the focus will be on the concepts and rules driving the overall system. This book is designed to help anyone who interacts with other people through creative expression, particularly code. For example, those in commercial contexts will find it useful to learn how their day-to-day jobs brush up against IP law. Entrepreneurs will be particularly interested in who “owns” the code and the concepts behind their companies. Open source developers will find it a useful handbook to one of the more esoteric but important parts of their software project. This book is not meant to be legal advice about what you should do in any specific situation. One difficulty with writing about intellectual property (or any legal topic) is that it is essentially impossible to be absolutely comprehensive. Legal disputes are generally fact-intensive, and superficially similar cases can lead to very different outcomes.
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