Open Source – Friend or Foe? Technology Breakfast Briefing, 15 May 2012

Simon Halberstam, Kingsley Napley LLP Andy Knapp, Black Duck Software

kingsleynapley.co.uk

• Pun on “copyright “ • Copyright – restrictive - right of author to prohibit others from reproducing, adapting, or distributing copies of his work • Copyleft – permissive/expansive – right of author to insist that derivations/adaptations of his work bound by the same governing licence i.e. every person who receives a copy of his work has permission to reproduce, adapt or distribute it • Synonymous with open source • GNU General Public License = first famous copyleft licence

kingsleynapley.co.uk FSF & the 4 Freedoms

• Not a pop group • Foundation (1985) > run the software for any purpose > study how the software works and adapt it > redistribute copies of the software > improve the software and release those improvements

kingsleynapley.co.uk GNU GPL v2.0

• 48.5% of OS licences • The WTFPL (Do What The F… You Want To Public License) •

kingsleynapley.co.uk Pros

• Development costs and timescale reduced • OS Ecosystem cf proprietorial economics > Ease of adaptation to new hardware platforms > Economics of maintaining legacy systems no impact > Bug fixes/additional functionality no charge > Maintenance resources > Frees up budget

kingsleynapley.co.uk Cons

• Tension between developers & internal/external clients • Confidentiality/Security • Competitive edge/Asset base jeopardised > impact on exit value/viability > Black Duck

kingsleynapley.co.uk Legal Tension

• GNU GPL v2.0 Section 2(b) > “You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work.. provided that you also meet all of these conditions: > b) You must cause any work that you distribute or publish that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License”

kingsleynapley.co.uk “contains or is derived”

• “Derivative work” > Extent > Captures copyright protected elements • Technical questions > distribution or publication not = internal use > interoperability = derivation? > combining code » static linking v dynamic linking to existing GPL code

kingsleynapley.co.uk “Contains”

• Does resultant executable “contain or is derived from” GPL code? • Static > Yes • Dynamic > No • Hermetic containment of GPL code from proprietary code > APIs and “Shims” • Omitted from GPL V3

kingsleynapley.co.uk Legal Fallout

• Skype > Munich > VOIP Handset » Embedded Linux Kernel without

• BT Home Hub > FSF Europe challenge > Distributed HH without making firmware SC available > Breach of GPL?

kingsleynapley.co.uk

Questions

Simon Halberstam, Partner (Technology Law) Kingsley Napley LLP [email protected]

Andy Knapp, Sales Director, EMEA Black Duck Software [email protected]

kingsleynapley.co.uk