Central IP Service the copyleft paradox open source compatibility issues and legal risks
Brussels, 30/09/2015
Stefano GENTILE EC.JRC
Central IP Service contents 2 open source philosophy characteristics of copyleft compatibility between multiple copyleft licences the 'copyleft paradox' examples of incompatible licences legal risks related to the use of OSS case law: a word from US disputes enforcement instruments conclusions
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open source philosophy 3
OPEN
use copyright to SOURCE
use accessnot just copy to source modify code distribute essential […] for society as a whole because they promote social solidarity—that is, . (gnu.org)
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copyleft rationale 4
COPYLEFT
method © merged c pyleftconceived licence with static link effect effects on dynamic link downstream distribution
of derivativeworks
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copyleft paradox 5 COPYLEFT
copyleft proliferation
☣ incompatible viral terms good code mishmash practice goneviruses respecting one licence would bad result:
defeats devised to forbid restrictions to sharing the very results in creating purpose “ ” of copyleft Central IP Service examples 6
source bsd COPYLEFT
lgpl OSS licence type non-copyleft source weak copyleft mixing strong copyleft lgpl copyleft flexible copyleft with your own gpl source available transfer instr. lgpl any partly copyleft gpl source eupl copyleft none lgpl gpl source eupl epl
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cross-compatibility 7
COPYLEFT
note: this is just a 1vs1 licence matrix…
Central IP Service legal risks 8
misappropriation (very upsetting) OPEN
SOURCE
source code is not made available
other condition not respected (e.g. incl. copy of the licence)
copyleft conflicts commonmost the result is a using open …so, what are the consequences and sourcesoftware what the remedies?
Central IP Service open source disputes 9
Jacobsen v. Katzer, et al. (2008) CASE
LAW
Jacobsen manages OSS developers' group JMRI JMRI produces software for model railroad enthusiasts: DecoderPro.
plaintiff DecoderPro distributed under ' ' (permissive OSS licence).
Katzer develops commercial software for model railroads. Katzer uses a significant portion of the DecoderPro OSS code to produce and distribute a commercial product: Decoder Commander. defendant Katzer fails to comply with the Artistic License requirements (i.a. attribution).
Jacobsen sues Katzer for and seeks .
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open source disputes 10
CASE
LAW
violation of the terms of the licence are contractual violations, not copyright violations. Katzer's Thus FOSS-like licenses could only be enforced defence through rather than .
Federal District Court in favour of Katzer. Jacobsen appeals the decision. Appellate Court sides with Jacobsen: if a licence is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright “ infringement
Central IP Service ” remedies 11
contract breachvs. ENFORCEMENT
© infringement
liquidated or actual damages (+ penalties) bre limited to the contracting party injunction / specific performance
actual damages + infringer's profits* erga omnes i.e. inf stronger injunction enforcing instruments! precautionary seizure
Central *or statutory damages IP Service conclusions 12 copyleft code is a viable (common) choice for sw development copyleft licensing is an effective dissemination tool copyleft has peculiar features that require upstream planning different copyleft code mishmash may hinder distribution! assessment ex-ante in order to comply with distribution policy OSS licence breach leads to copyright infringement allegations OSS right-holders enjoy strong(er) enforcement instruments
Central IP Service credits 13
thank you
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