Stand up to the lawyers - open source licensing and intellectual property law 101 for developers presentation

Stand Up to the Lawyers
Open Source Licensing and Intellectual Property
Law 101 for Developers

Donald Smith
Eclipse Foundation
http://eclipse-ecosystem.blogspot.com/

Agenda
 The Risk Contradiction
 What is a software license?
 Thirty minutes of Intellectual Property Law
 Free vs Commercial Software Licenses
 Key Characteristics of a Software License
 Comparing and contrasting popular OS Licenses
 Choosing a License For Your OS Project
 Using OS in your Project

IANAL
 I
 Am
 Not
 A
 Lawyer

IANAL
 This information is for modeling and debate purposes only
 This information is not legal advice as I am not a lawyer
 Even if I were a lawyer, and able to give professional legal
advice, I am still not your lawyer
 This information is in no way to be considered advice from
my Employer, even when I refer to my Community’s license
(EPL)
 Many lawyers may not agree with anything presented here,
but that’s not the point of this presentation…

This information is an anthology of experiences from one
developer to another

A Note on Geography…
 Sorry, but we are going to stick primarily with
the American system here
 Most concepts are quite portable, but there will
be lots of exceptions in different countries

http://www.flickr.com/photos/nss/144588132/

The Risk Contradiction
 How much risk is acceptable in your
life?
 How much risk is acceptable to your
business?
 Why will some people drive a
motorcycle without a helmet, yet
obsess over obscure and unlikely
interpretations of copyright law?
 Use of any license, commercial or
otherwise brings with it some legal
risk.
 Don’t obsess unnecessarily over risk,
recognize when your organization is. http://www.projectgrizzly.net/

The Risk Contradiction
 Regard company lawyers as Insurance Agents
 Legal approval ~ “Insurance Policy”
 Insurance Policies require:
Evidence of very low (no) risk
Evidence of a disproportionate benefit (to the
agent) for the risk being taken

This is why getting legal approval to do anything is so damn hard…

Software Licensing 101
 Free Open Source Software is protected by Copyright © law
 Just like music, poetry and books
 All software written after 1978 is automatically protected by
very restrictive and protective (for the author) rights
 THEREFORE, a Free Open Source software license is
actually a grant of rights to the end user not otherwise
granted by law

Wait a second, what’s copyright law?

What about
Isn’t this related to patents?
Commercial

Ten Thirty minutes of
Intellectual Property Law
 Copyright ©
 Patents
 Copyright VS Patents
 Derivative works
 Trademarks™
 Trade Secrets

Ten minutes of Intellectual
Property Law
 Copyright ©
 Patents
 Trademarks™
 Trade Secrets

Copyright ©
 Form of protection defaulted by law that protects “original
works of authorship” (original, minimally creative, tangible)
 Actions covered:
 Reproduction
 Public Display
 Publicly Perform
 Prepare Derivative Works
 Distribution
 Essentially, except in limited scope*, you simply can’t do
any of the above actions on any original work of authorship
without permission
* Generally known as “fair use”. 4 criteria. 1. how copyright is

used (commercial or non-profit educational), 2. nature of the

work. 3. % of material used, 4. effect on comercialability based

Copyright ©
 Neither registration nor notice is required
 You AUTOMATICALLY inherit Copyright
 Term is your life + 70 years, or 95 years if the creation was
“for hire”
 Even if you don’t want Copyright you get it
 You do not need to declare Copyright ©, you STILL GET IT
 Declaring Copyright is beneficial for the Copyright holder
though:
Establishes start date of Copyright so there can be no disputes for
your heirs
Expands liability for violators

Key Requirements to Inherit
Copyright
 Original expression
 Some minimal amount of creativity
 Fixed in a tangible medium (thoughts are
not Copyrightable)
Does this get Copyright ©? Does this get Copyright ©?

© 2009

Key Requirements to Inherit
Copyright
 Original expression
 Some minimal amount of creativity
 Fixed in a tangible medium
Does this get Copyright? Does this get Copyright?
// Copyright 2009 By John Doe Inc
for ( i=1; i<k; i++ ) {
public void verifyText(VerifyEvent e) {
System.out.println(i);
Text text = ((Text)e.widget);
}
StringBuffer fulltext = new

StringBuffer(text.getText());

fulltext.replace(e.start, e.end, e.text);

String sign=""; //$NON-NLS-1$

if(fSigned)

sign="-?"; //$NON-NLS-1$

e.doit = fulltext.toString()

.matches(sign+

Who owns the Copyright ©
 Most programmers do not own the right to
any code they write, their Employer does!
 Most Employment Contracts contain
something like the following:
You hereby agree to assign to the Corporation all right, title and interest in and to any and all

Inventions whether or not patentable or registrable under copyright or similar statutes, made or

conceived or reduced to practice or learned by you, either alone or jointly with others, during

your employment, which (a) relate to methods, apparatus, designs, products, processes or

devices sold, leased, used or under construction or development by the Corporation, or

otherwise relate to or pertain to the actual or anticipated business, functions, operations,

research or development of the Corporation, (b) utilize any physical or intellectual property

owned by the Corporation, or (c)a really big on any information or knowledge gained by you
This is are based issue for Open Source projects……

Patents
 Exclusive right for a fixed period of time, given by
government, to directly or indirectly make, use, sell or
import an invention
 An invention is a device, method, process or compound
 An invention must be novel, non-obvious, have utility
and be describable in detail such that it is reproducible

http://www.flickr.com/photos/automatt/55799165/

Property Law
 Copyright ©
 Commercial Software Licenses
 Patents
 Trademarks™
 Trade Secrets

Copyrights Versus Patents
 Copyrights protect a specific expression of
an idea
 Patents protect an idea itself
 How evil could this be:
As a Copyright holder you grant people the right
to copy and create derivative works of your code
But do NOT give them the rights to your Patent
for the idea the code represents!

In Software, Patents are like
Broad Copyright
…but someone could
This might be Copyright ©
public void verifyText(VerifyEvent e) {
independently produce this:
public void verifyText(VerifyEvent ve) {
Text text = ((Text)e.widget);
String legal=“0123456789ABCDEFabcdef”;
StringBuffer fulltext = new
Text t = ((Text)ve.widget);
StringBuffer(text.getText());
String s = t.getText();
fulltext.replace(e.start, e.end, e.text);
s = s.substr(0,ve.start)
String sign=""; //$NON-NLS-1$
+ ve.text + s.substr(ve.end, s.length());
if(fSigned)
int start=0;
sign="-?"; //$NON-NLS-1$
if(fSigned)
e.doit = fulltext.toString()
{start=1;
.matches(sign+
if s[1]!=“-”; {
"(0?|[1-9][0-9]*|0x[0-9a-fA-F]*
ve.doit=false; return;}
|0[0-7]+)"); //$NON-NLS-1$
while(start++<s.length())
}
if(legal.indexOf(s.charAt(start))=-1)

Please bear with me if the code is not perfect {ve.doit=false; return;}
or correct. The point is that Copyright only applies to a
ve.doit=true;
particular expression and therefore with Software, it’s quite possible, easy and even likely to have many

Patent To Protect the Idea,
not the Expression
Patent: 5555121212

Date Granted: February 30th, 2001

Title: “A method for verifying selected text to be a numeric representation as denoted under ANSI

numeric representation standard”

Authors: Joe Schmoe

Claims: 1. All methods for verifying text, 2. All methods for verifying that a text is a number, 3. All
Some Selection Event is Raised, E {

methods for verifying to be text is anfrom E defined number, 4. All methods for verifying text that is an
Extract the Text, T, that verified ANSI

Validate if the first Character T is a sign (+/-), if relevant
ANSI defined number by character by character C
Iterate over the text T,
brute force iteration.

Validate that each C belongs to the ANSI set of valid Hex characters

Pseudo Implementation: the event execution flag is an True, otherwise false instead of the expression. I am not implying this
*** Please note this is not a real patent, it
If everything is Valid, set to
example of patenting the idea

idea is or ever was patentable or patented, or that software patents are a good or bad idea, but if this idea were patentable,
}

Property Law
 Copyright ©
 Commercial Software Licenses
 Patents
 Trademarks™

Derivative Works
“…a work based on one or more preexisting works, such as a
translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction,
abridgement, condensation, or any other form in which a work
may be recast, or adapted. A work consisting of editorial
revisions, annotations, elaborations, or other modifications,
which, as a whole, represents an original work of authorship, is a
‘derivative work’”
Section 101 of U.S. Copyright Act

 Derivative works are not considered original creations
 They are considered copies of the original and you therefore
need permission to display, distribute, etc, the derivative work

Derivative Works
…makes this a derivative work
Starting with this….
public void verifyText(VerifyEvent e) { public void verifyText(VerifyEvent e) {

Text text = ((Text)e.widget); Text text = ((Text)e.widget);

StringBuffer fulltext = new // Better way to get String Buffer

StringBuffer(text.getText()); StringBuffer fulltext = new

fulltext.replace(e.start, e.end, e.text); text.getStringBuffer();

String sign=""; //$NON-NLS-1$ fulltext.replace(e.start, e.end, e.text);

if(fSigned) //Sign not important to me

sign="-?"; //$NON-NLS-1$ e.doit = fulltext.toString()

e.doit = fulltext.toString() .matches(

.matches(sign+ "(0?|[1-9][0-9]*|0x[0-9a-fA-F]*

"(0?|[1-9][0-9]*|0x[0-9a-fA-F]* |0[0-7]+)"); //$NON-NLS-1$

|0[0-7]+)"); //$NON-NLS-1$ }

}

Please bear with me if the code is not perfect or correct. The point is that even making major changes and

improvements to someone else’s code, even if it’s way, way, way cooler and better, is still a derivative work.

Trademarks™
 Identifies the origin of product or service
 Distinctive symbols, pictures, or words
 Registration® is not required, but helps
(similar to copyright – expands your ability to sue, and more)
 For example, it is never proper to write “Java”. You really should always
denote it as Java™
 Companies sometimes look evil defending their Trademarks, but this is
not necessarily because they are evil…
If you establish something as a Trademark, you are compelled by law to
defend any perceived infringement on the trademark or you seriously
jeopardize your rights
For example, when Starbucks sued “Sambucks”, they were not necessarily
being evil, but acting as compelled by law

Few open source licenses grant any trademarks rights

Java™ is a trademark of Sun Microsystems®

Trade Secrets
 Aka “Confidential
Information”
 Non-compete clauses
flickr.com/photos/59953599@N00/2852302091/

 Non-disclosure contracts
 “Reverse Engineering” Restrictions
 Not a typical software developer problem
– Cryptography, compression
 More of an issue for hardware touch
points – networking, mobile, etc.

Intellectual Property Law
Summary *As it applies to Software Licensing

 Software is protected by Intellectual Property law
 Even if you’re the author of said code and don’t want it to be
 Patents protect and restrict the use if ideas whereas Copyright
protects and restricts expressions of an idea
 Derivative Works, even if substantially modified, are not
considered original themselves and therefore you need
permission from original author
 Trademarks identify products or services and are protected by
law, but must be rigorously defended to be valid
 Trade Secrets not generally an issue, but beware of certain
domains and when you’re close to the metal

An OS license is a grant of rights not given by IPL

Commercial Software Licenses
 Commercial Software often imposes extra restrictions on
users that are not covered by Intellectual Property law
 Agreement not to disassemble or reverse Engineer
 Agreement to use on only one computer
 Agreement not to transfer or resell your license to another entity
 Agreement to allow software to report usability metrics periodically
 Agreement not to rent or lease the computer with the software
 Agreement to notify all staff and users of computer of all rules of
the software license
 Agreement to wear purple shirts when using the software

The Subtle Difference
 Commercial Software Licenses (aka “EULA”) are restrictive
 To enforce a license, owner must be able to prove end user
acceptance
• Signed contract, click-through, shrink-wrap*
 Disputes may fall into Contract law
 Free Open Source Licenses grant rights, not take them away
 There is no need to prove acceptance
 No one can claim they didn’t know what the conditions were since
most actions would be violation of Copyright © law and therefore
the license need to be consulted
 Disputes likely to be Intellectual Property law

But as a user, you need to trust the Copyright © owner granting the license actually is the

copyright owner…

Open Source EULA’s
 Open Source Software may still have a “EULA” or User
Agreement
 Typical in cases where an OS Project is distributing 3rd party OS
Code
 Requires end users to be aware of the 3rd party licenses that may
apply
 Clarifies what software is covered – for example include CVS code
(or update manager in Eclipse)
 Example OS EULA’s
 http://www.eclipse.org/legal/epl/notice.php
 http://www.mozilla.com/legal/eula/firefox-en.html

Key Characteristics of
Software License
 Definitions
 Grant of Copyright License Rights Fairly standard legal

 Warranty and Liability mumbo jumbo

 Jurisdiction and Duration
 Sublicensing
 Reciprocity
 Patent Rights Differentiating

 Patent Retaliation Factors

 Use of Trademarks

Wait! What makes a Software License an

Open Source Software License?

Definition of an Open Source
License
 Who was better, the 1999 New York Yankees or the
1973 Oakland Athletics?
 Did Chris Moneymaker just get incredibly lucky
when he won the 2003 WSOP™ or was he skillful
and just been unlucky since?
 Which is the better spin off, CSI™ Miami, or CSI™
New York?
The point is, we could debate this all day and it’s subjective. Many people and

organizations (including myself) agree that the “Open Source Initiative” (OSI) defines the

industry standard of what is an open source license.

OSI Definition of an Open
Source License
1. Free Redistribution
 No Fees or Royalties
2. Source Code
 Included and Redistributable
3. Derived Works
 Allowed and redistributable under same terms or “better”
4. Integrity of Authors Source Code
 May require derived works to carry different name or version
5. No discrimination against person or group of persons
 Can warn of legal constraints such as trade embargos, but not
explicitly forbid

Attribution Notice: This page is a derivative work of http://opensource.org/docs/definition.php which was afforded under the

Academic Free License v2.1 described here: http://opensource.org/licenses/afl-2.1.php

OSI Definition of an Open
Source License
1. No discrimination against fields of endeavor
 Closes loophole that might restrict commercial use
2. Distribution of license
 Must be self standing and not require a non-disclosure or other
agreement
3. License Must be Not Be Specific to a Product
 “Distribution” may be better word – must allow selective use of
functionality
 Closes another loophole
4. Must not restrict other software
 In the distribution, so GPL is OK
5. Technology Neutral
 Cannot restrict use to certain platforms (Windows™ for example)

Attribution Notice: This page is a derivative work of http://opensource.org/docs/definition.php which was afforded under the

Academic Free License v2.1 described here: http://opensource.org/licenses/afl-2.1.php

Key Characteristics of
Software License
 Definitions
 Grant of Copyright License Rights Fairly standard legal

 Warranty and Liability mumbo jumbo

 Jurisdiction and Duration
 Sublicensing
 Reciprocity
 Patent Rights Differentiating

 Patent Retaliation Factors

 Use of Trademarks

Definitions
 Defines important terms used within the license
 May seem trivial, but the definitions are often
“telling” of what is important in the license
 May define terms that are used in applicable laws
 Many licenses clarify the term “Derivative Works”, which
is defined in law, but expanded for clarification specific
to software
 May define terms that are interesting to the license
 Community based licenses like Apache and Eclipse define
“Contribution” and “Contributor”

Grant of Copyright Rights
 Sometimes called “Grant of Copyright License” or “Grant of
Rights”
 Grants you rights you do not have under Copyright law such
as the right to copy, create derivative works, to redistribute,
etc.
 There may be conditions, such as “Reciprocity” (more later)
 This is often short and sweet
From Apache 2.0 license:

Grant of Copyright License: Subject to the terms and conditions of this License, each Contributor hereby

grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to

reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the

Work and such Derivative Works in Source or Object form.

Warranty and Liability
 YOU MAY NOTICE SECTIONS OF LICENSES THAT SEEM LIKE THEY ARE
YELLING
 THEY BASICALLY SAY, “HEY THERE, YOU DIDN’T PAY FOR THIS SO
THERE IS NO WARRANTY, AND YOU CAN’T SUE US IF IT BREAKS, OK?
AND ALSO WE ARE NOT LIABLE FOR ANYTHING BAD THAT HAPPENS,
EVEN IF WE INTENTIONALLY DID SOMETHING WRONG TO THE
EXTENT AFFORDED BY LAW.”
 NOTE – THE YELLING IS NOT BEING RUDE, OR LAWYERS BEING
LAWERS – IT’S ACTUALLY A COURT PRECEDENT THAT IT BE ALL IN
UPPER CASE

Confirmed in:

UCC 2-316

UCC 1-201(10)

Jurisdiction and Duration
 Some licenses specify a legal jurisdiction and terms
 Generally a simple way to further minimize any possible legal risks
 Location
 Timeline
 Type of trial
 For example, the EPL states:
“This Agreement is governed by the laws of the State of New York
and the intellectual property laws of the United States of America.
No party to this Agreement will bring a legal action under this
Agreement more than one year after the cause of action arose.
Each party waives its rights to a jury trial in any resulting
litigation.”

Grant of Sublicense Rights
 Sublicense – Licensee has right to license to 3rd party with
same terms
 Relicense – Ability to distribute under different license
 Examples
 Apache and Eclipse allow sublicense
 Apache allows full relicense of your changes
• Essentially you own the copyright of derivative works
 Eclipse allows relicense of object code with disclaimers*
 Each distribution of GPL code is technically a license from the
Author, so technically not sublicensed

Eclipse “Relicense” Disclaimers:

Disclaim warranties and liability of contributors

States what’s different from the original work (if anything)

Reciprocity
 The exchange of comparable concessions
 No, File, Module, Derivative Works, Hosting, Container
 “Reciprocity Reach” – The extent to which your derivative
works must be licensed under the same terms and
conditions
 Apache 2.0 – No Reciprocity
 EPL 1.0 – No Reciprocity on modules that are not derivative works
 GPL 3.0 – Reciprocity on “covered work”
• “covered work” includes software “based on the Program”

Patent Rights and Retaliation
 Many licenses explicitly grant you rights to any patents the
Copyright holders may have with respect to the code
(Apache, EPL)
 Some licenses have implicit patent grants (GPL)
 Many licenses terminate the patent grants if you sue for
patent infringement on any of the licensed code
 EPL and Apache Patent rights explicitly terminate upon suing any
entity related to the licensed code
 GPL Patent rights implicitly terminate upon restricting royalty-free
distribution of any GPL code

Use of Trademarks™
 Some licenses (Apache) explicitly clarify that the license
does not permit the use of the trademark except as to
document the origin of the source code as per the license
requirements
 The PHP License explicitly defines how products that use
PHP cannot be named
 Some licenses (EPL) do not mention trademarks in the
license and therefore default Trademark law applies
 This is intentional to allow Trademark flexibility outside of the scope
of the use of the license

Degree of Freedom
(Generalized)
 Commercial License – “You can’t see our source”
 Example – Pick one 
 Restricted Source – “You can see it, but not do much with it”
 Sun Community Source License (SCSL)
More Freedoms

 Microsoft Shared Source (Ms-PL Ms-RL Ms-CL)
(Permissive/Reference/Collaborative)
 Copyleft – “If you change it, you must publish the changes”
 “Strong” Example – GPL
 “Weak” Example – EPL, MPL
 Non-Copyleft – “Do what you want, just don’t claim it’s yours
and don’t let us get blamed if your changes suck”
 BSD, Apache

Degree of Restrictions
(Generalized)
10

9

8
Degree of Restriction

7

6

5

4

3

2

1

0
MIT/X BSD Apac he AFL CDDL EPL MPL CPL OSL LGPL GPL

Reciprocity Reach & Relicensing Restrictions Patent Grant & Retailiation

This graph is generalized and subjective in nature. This graph is Copyright© Cliff Schmidt and used under

EPL.

Comparing Three Popular OS
Licenses
GPL v3 EPL v1 Apache v2
Derivative works and anything that Derivative None
Reciprocity cannot be “reasonably considered an Works
independent and separate work”
None, license is virtually granted Re-license of “may provide additional
Sublicense / from author on each distribution Object code or different license
Relicense permitted* terms and conditions of
Your modifications”
Patent Explicit (was implicit in v2) Explicit Explicit
Rights

Patent Rights terminate if you prevent Rights terminate if you file suit
Retaliation royalty free distribution of the code against any entity for the code

Not covered Not covered Explicitly disallowed
Trademark

This slide is not legal advice and is subjective. IANAL. Consult your trusted advisors before basing any decisions on this chart.

Choosing a License for your
OS Project
 Strongly advocate picking a license from the Open
Source Initiative (OSI) at opensource.org
 Avoid license proliferation, use a popular license like
Apache, BSD, MIT, GPL, LGL, EPL, MPL.
 Choosing a license can be like choosing a religion
 How strongly do you feel about the statement “ALL Software
should be free?”
 Would you be upset, or proud if someone else makes money
from your copyright?
 If your project is wildly successful, will you still be happy with
your license choice?
• Plan for success

Using OS In Your Project
 Key question – What is your business model?
 License revenue? Consulting? Support and services?
Documentation?
 Considerations
 GPL Considered “Viral” and limits adoption for use in
commercially licensed products
 Apache, BSD are extremely friendly to commercial use and
redistribution
 Eclipse and Mozilla licenses are also very friendly to commercial
use and redistribution PLUS they give reciprocity
 Don’t fall for the Risk Contradiction. Open Source licenses
are not too good to be true!

This slide is not legal advice and is subjective. IANAL. Consult your trusted advisors.

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