Transcript Hot Topics in Open Source Licensing

Hot Topics in Open Source
Licensing
Robert J. Scott
Managing Partner
Scott & Scott, LLP
www.iaitam.org
Presenter
Robert J. Scott
Scott & Scott, LLP
www.iaitam.org
Topics
•
The Copyleft Paradigm
•
Changes in GPLv3
– Open Source Firmware
– Anti-Patent Transactions
– Web Interfaces
•
Potential Pitfalls and Case Examples
•
Q&A
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The Copyleft Paradigm
Software Author
Asserts Copyright
In Software Product
Software Author
Licenses Product
Under GPL
GPL License
Requires Licensee
and Other Authors
To Maintain Open
Distribution
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The Copyleft Paradigm Copyright
•
GPL licensing still requires assertion of copyright
interest in software
•
It is a violation of U.S. copyright law to copy or
distribute a creative work without the author’s
permission, which usually comes in the form of a
license
•
Remedies for copyright violations include injunctions
and actual or statutory damages
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The Copyleft Paradigm - GPL
•
GPL conditions lawful use of copyrighted software
on the user’s promise not to restrict future use of
that software
•
A user’s attempt to restrict the availability or
functionality of GPL-licensed software in violation of
the terms of the GPL constitutes a breach of the
license, making future use unlawful and subjecting
the user to copyright liability
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The Copyleft Paradigm –
Downstream Use
•
Downstream users of GPL-licensed software are
generally free to modify and re-distribute that
software, even for a fee, as long as they license their
software under terms at least as permissive as those
of the GPL
•
Most of the major changes reflected in GPLv3
concern relatively recent developments in
downstream use that post-date GPLv2
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Changes in GPLv3 – Open
Source Firmware
•
GPLv3 Section 6 (paraphrased): If you copy and distribute
a covered work as firmware in a “User Product,” the
ownership and use of which is transferred to the recipient
permanently or for a fixed term, you must:
– Convey with the “User Product” the corresponding
source code for the covered work
– Convey the code signatures or installation keys that
would allow the recipient to install modified versions of
the covered work as firmware in the “User Product”
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Changes in GPLv3 – Open
Source Firmware (cont.)
•
Anti- “Tivoization” provision
•
“User Product” generally includes only devices
intended for personal / household use – not voting
machines, medical devices, or other business- or
government-oriented products (a concession to
avoid conflicts with privacy or voting laws that would
require the firmware to be “tamper-resistant”)
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Changes in GPLv3 – Anti-Patent
Transactions
•
GPLv3 Section 11 (paraphrased): You may not copy and distribute
a covered work under any arrangement with a third party software
publisher in which:
– You would make payment to the third party
– You would distribute the covered work to consumers
– The third party gives to those consumers a “patent license”
that “does not include within the scope of its coverage,
prohibits the exercise of, or is conditioned on the non-exercise
of one or more of the rights that are specifically granted under
[the GPL]”
– Unless you entered into that arrangement with that third party
prior to the date that GPLv3 was publicly circulated for review
and comment
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Changes in GPLv3 – AntiPatent Transactions (cont.)
•
Anti-Microsoft-Novell provision
•
Intended to prevent companies (e.g., Novell) who
publish software based on works licensed under the
GPL from entering into arrangements with other
companies (e.g., Microsoft) who would modify and
then try to patent the resulting product, thereby
preventing others from making future works based
on that code (absent a license to do so)
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Changes in GPLv3 – Web Interfaces
•
GPLv3 specifically accommodates linking works
GPLv3-licensed works with other works licensed
under the Affero GPL, for open-source software
delivered over a network (the Affero GPL is generally
incompatible with GPLv2)
•
Thus, developers of programs licensed under the
Affero GPL can now incorporate libraries or code
licensed under GPLv3 without running afoul of any
license terms
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Potential Pitfalls and Case Examples
•
It is possible that a proprietary executable that dynamically
links to GPL software could itself be considered a derivative
work, which would have to be licensed under the GPL
– In Galoob v. Nintendo, the 9th Circuit held that a work
would have to “incorporate a portion of the copyrighted
work in some form” in ordered to be considered
derivative
– Issue remains to be decisively settled
– Proprietary work could be protected to the extent that it is
partitioned from a GPL-covered work, so as to form a
component of an “aggregate”:
• GPLv3 Sec. 5: “Inclusion of a covered work in an
aggregate does not cause this License to apply to
the other parts of the aggregate.”
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Potential Pitfalls and Case Examples
•
In September 2006, a German civil court found that
D-Link Germany GmbH violated the copyright in the
Linux kernel and other GPL-licensed software when
it distributed that software as firmware without
including the accompanying source code
•
Early precedent that GPL is valid and binding (at
least in Germany)
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Potential Pitfalls and Case Examples
•
In 2007, the Software Freedom Law Center began
filing lawsuits in the S.D.N.Y. for use of GPLlicensed BusyBox code as firmware in appliances
that were not distributed with the corresponding
source
•
Targets included:
– Monsoon Multimedia Inc. (Case 07-CV-8205)
– Xterasys (Case 07-CV-10456)
– High-Gain Antennas (Case 07-CV-10455)
•
Monsoon and Xterasys settled out of court for
release of code and undisclosed payments BusyBox
developers
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Potential Pitfalls and Case Examples
• Jacobsen v. Katzer
– Decided August 13, 2008, by the U.S. Court of Appeals for the Federal
Circuit
– Perl Artistic License held to be enforceable
– Made it clear that, based on the license’s conditions on the use and
copying of the software at issue, the holder of the copyright may pursue
a claim for copyright infringement when those conditions are breached
– Specifically rejected the notion that the software’s distribution free-ofcharge affected the analysis
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Open-Source Software Asset Management
• Principal risks with open-source software are associated
with whether the publisher or vendor has the right to
distribute the software
• Increasing number of SAM solutions are being offered to
help mitigate the risks:
– Turn-key open-source SAM solutions by subscription
– Insurance coverage for open-source software deployment
• As a business productivity tool
• As an integrated component of a downstream software or hardware
product
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Questions?
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Contact Information
Robert J. Scott
Managing Partner
[email protected]
800-596-6176 (Telephone)
800-529-3292 (Facsimile)
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