The Open Source Alternative Understanding Risks and Leveraging Opportunities

by Meeker, Heather J.

• ISBN13: 9780470194959
• ISBN10: 0470194952
• Edition: 1st
• Format: Hardcover
• Copyright: 2008-02-08
• Publisher: Wiley

Summary

This book is a user manual for understanding and deployment of open source software licensing in business. Written for lawyers and businesspeople alike, it explains and analyzes open source licensing issues, and gives practical suggestions on how to deal with open source licensing in a business context. Including useful forms, information, and both technical and licensing background, this book will help you avoid legal pitfalls and edcuate your organization about the risks of open source.

Author Biography

Heather J. Meeker is a shareholder at Greenberg Traurig, LLP, one of the largest law firms in the United States. Heather has provided open source counseling to clients ranging from technology startups using open source in product development, to public technology companies conducting open source code releases, to venture capitalists assessing new business models in the software industry. She also serves as an adjunct professor at the U.C. Berkeley School of Law, is a member of the American Law Institute, and in 2005, was selected by the Daily Journal as one of the top thirty intellectual property lawyers in California.

Table of Contents

Preface	p. ix
Leveraging Opportunities	p. 1
Introduction: How UNIX Gave Birth to Linux, and a New Software Paradigm	p. 3
In the Beginning Was the Word, and the Word Was UNIX	p. 3
Along Comes Linux	p. 6
Now, What Is Open Source?	p. 7
And This Is Just the Beginning	p. 9
Free Software and Open Source	p. 11
Viruses and Freedoms	p. 11
Philosophy of Free Software	p. 13
Open Source Initiative	p. 18
Mozilla Foundation	p. 18
Linus Torvalds	p. 19
Definitions: Free Software and Open Source	p. 21
What's in a Name? The Viral and the Nonviral	p. 22
Open Source Development Model	p. 25
Common Open Source Licenses and Their Structure	p. 27
Direct Licensing	p. 29
GPL	p. 29
GPL + Exception (or Special Exception)	p. 39
GPL + FLOSS Exception	p. 40
LGPL	p. 40
Corporate Hereditary Software Licenses	p. 41
Other Hereditary Software Licenses	p. 43
Permissive Licenses	p. 43
Apache 1.0	p. 46
Apache 1.1	p. 46
Apache 2.0	p. 46
Artistic License	p. 46
Miscellaneous Licenses	p. 47
Non-Software Licenses	p. 49
Due Diligence, License Proliferation, and Compatibility	p. 53
What Is the Problem with Combining Software?	p. 53
What Is Due Diligence?	p. 54
License Conditions and Diligence Problems	p. 57
License Compatibility	p. 59
Choices in an Incompatible World	p. 62
An Embarrassment of Riches?	p. 66
Reusability	p. 69
Audits and Compliance Initiatives	p. 71
Provenance and Objective Checking	p. 72
Applying Policy and Legal Review	p. 74
Some Nuts and Bolts	p. 76
Notice Requirements	p. 83
Patents and Open Source	p. 89
Patent Debate	p. 89
Patent Portfolio Management	p. 98
Trademarks and Open Source	p. 109
Trademark Law and Open Source Licensing	p. 109
Trademarks in the Open Source World	p. 111
AT&T UNIX Battle	p. 112
Open Source and Open Standards	p. 115
Developing a Corporate Open Source Policy	p. 119
Open Source Corporate Policy	p. 123
Open Source Code Releases	p. 135
Choosing a License	p. 136
Effect on Patent Portfolio	p. 139
Effect on Trademarks	p. 140
Open Source Business Models	p. 142
Dual Licensing	p. 143
"Ur-Licensor" and Open Source Decision Models	p. 146
Contribution Agreements	p. 146
Reissuing Code	p. 150
Corporate Organization	p. 150
Open Source Trademark Policy	p. 153
Understanding Risks	p. 159
Technical Background: Operating System Kernels, User Space, and Elements of Programming	p. 161
What Is the difference Between an Application and an Operating System?	p. 163
What Is an Operating System Kernel?	p. 164
What Is an Application?	p. 165
Dynamic and Static Linking, and Inline Code	p. 166
Header Files	p. 169
Monoliths and Loadable Kernel Modules	p. 170
Enforcement of Open Source Licenses	p. 171
Past Enforcement	p. 171
Enforcement Obstacles	p. 176
Lack of Track Record: GPL Has Never Been Tested in Court	p. 176
Waiver/Estoppel: Occasional and Selective Enforcement of GPL Means It Is Unenforceable	p. 177
Formation: GPL Is Not Validly Accepted by Licensees	p. 177
GPL Constitutes Copyright Misuse	p. 178
Joint Work Arguments	p. 179
Standing and Joinder Arguments	p. 180
The Border Dispute of GPL2	p. 183
Defining the Border Dispute	p. 183
What the GPL Says	p. 184
Rules of Contract Construction	p. 186
Applying the Four Corners Rule to GPL2	p. 188
Applying the Rules of Contract Construction of GPL2	p. 190
Trade Usage and Other Extrinsic Evidence	p. 191
Derivative Works Question	p. 192
The Facts	p. 195
Legal Rules	p. 196
Analyzing the Case of Two Works	p. 200
Is the Result One or Two Works?	p. 205
Policy Arguments	p. 206
Non-U.S. Law Interpretations	p. 207
Approach of Legal Realism	p. 208
Outside the Four Corners	p. 209
Loadable Kernel Modules	p. 212
The Hardest Cases	p. 216
LGPL Compliance	p. 217
License or Contract?	p. 223
Contract Formation	p. 223
Arguments Supporting Formation	p. 225
Implications of Absence of Contract Formation	p. 226
Incentives for Formation Arguments	p. 229
Defining Distribution	p. 233
Open Source in Mergers and Acquisitions and Other Transactions	p. 237
Open Source in Licensing and Commercial Transactions	p. 241
Development Agreements	p. 242
GPL Version 3.0	p. 245
What Is the Effect of the Release of GPL3?	p. 245
Adoption of GPL3	p. 247
Politics and Context	p. 248
"Derivative Works" Problem	p. 251
"Propagation" and "Conveying"	p. 252
Patents	p. 252
Digital Millennium Copyright Act Provisions	p. 255
"Java Problem"	p. 257
Disabling and Obfuscation	p. 257
ASP Problem	p. 258
License Compatibility	p. 259
LGPL Version 3.0	p. 261
New Approach for LGPL	p. 261
Adoption of LGPL3	p. 261
Politics and Context	p. 262
Definitions	p. 262
Compliance	p. 262
Drawbacks	p. 264
Open Source Development Agreement	p. 265
Glossary	p. 277
Index	p. 283
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