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 Central IP Service 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) Central IP Service copyleft rationale 4 COPYLEFT source code method © merged c pyleftconceived licence with static link effect effects on dynamic link downstream distribution of derivativeworks Central IP Service 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 Central IP Service 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 . Central IP Service 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 death by credits: powerpoint? the European Commission logo is a registered let me know! mark of the EU. All rights reserved. icons at slides 8, 10, 11, 13 by Freepik [email protected] source: flaticon.com, licensed under CC BY 3.0 everything else is available for reuse under the terms of Decision 2011/833/EU. Central IP Service .