The Open Source Alternative: Understanding Risks and Leveraging Opportunities

by Heather J. Meeker

• ISBN13: 9780470255810
• ISBN10: 0470255811
• Format: eBook
• Copyright: 2008-05-01
• 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.

Table of Contents

Introduction: How UNIX Gave Birth to Linux, and a New Software Paradigm

In the Beginning Was the Word, and the Word was UNIX

Along Comes Linux

Now, What is Open Source?

And This Is Just the Beginningà

Free Software and Open Source

Viruses and Freedoms

Philosophy of Free Software

Open Source Initiative (OSI

The Mozilla Foundation

Linus Torvalds

Free Software Definition and Open Source Definition

What's in a Name? The Viral and the Non-Viral

The Open Source Development Model

Common Open Source Licenses and their Structure

Direct Licensing

GPL

GPL + Exception

GPL + FLOSS Exception

Lesser General Public License (LGPL

Corporate Hereditary Software Licenses

Other Hereditary Software Licenses

Permissive Licenses

Apache 1.0

Apache 1.1

Apache 2.0

The Artistic License

Miscellaneous Licenses

Non-Software Licenses

Due Diligence, License Proliferation and Compatibility

What is the Problem with Combining Software?

What is Due Diligence?

License Conditions and Diligence Problems

License Compatibility

Choices in an Incompatible World

An Embarrassment of Riches?

Reusability

Audits and Compliance Initiatives

Provenance and Objective Checking

Applying Policy and Legal Review

Some Nuts and Bolts

Notice Requirements

Patents and open source

The Patent Debate

Patent Portfolio Management

Trademarks and open source

Trademark Law and Open Source Licensing

Trademarks in the Open Source World

AT&T UNIX Battle

Open Source and Open Standards

Developing a Corporate Open Source Policy

Open Source Corporate Policy

Open Source Code Releases

Choosing a License

Effect on Patent Portfolio

Effect on Trademarks

Open Source Business Models

Dual Licensing

The "Ur-Licensor" and Open Source Decision Models

Contribution Agreements

Re-issuing Code

Corporate Organization

Appendix 11.1. Open Source Trademark Policy

Technical Background: Operating System Kernels, User Space, and Elements of Programming

What is an Application?

What is an Operating System Kernel?

Dynamic and Static Linking, and Inline Code

Header Files

Monoliths and LKMs

Enforcement of open source licenses

Past Enforcement

Enforcement Obstacles

Lack of track record: The GPL has never been tested in court

Waiver/Estoppel: The occasional and selective enforcement of the GPL means it is unenforceable

Formation: The GPL is not validly accepted by licensees

The GPL constitutes copyright misuse

Joint work arguments

Standing and Joinder arguments

The Border Dispute of GPL2

Defining the Border Dispute

What the GPL Says

Rules of Contract Construction

Applying the Four Corners Rule to GPL2

Applying the Rules of Contract Construction to GPL2

Trade Usage and Other Extrinsic Evidence

The Derivative Works Question

The Facts

Legal Rules

Analyzing the Case of Two Works

Is the Result One or Two Works?

Policy Arguments

Non-U.S. Law Interpretations

The Approach of Legal Realism

Outside the Four Corners

Loadable Kernel Modules (LKMs

The Hardest Cases

LGPL Compliance

License or Contract?

Contract Formation

Arguments Supporting Formation

Implications of Absence of Contract Formation

Incentives for Formation Arguments

Defining Distribution

Open Source in M&A and Other Transactions

Open Source in Licensing and Commercial Transactions

Development Agreements

GPL Version 3.0 (GPL3

What is the Effect of the Release of GPL3?

Adoption of GPL3

Politics and Context

The "Derivative Works" Problem

"Propagation" and "Conveying"

Patents

DMCA Provisions

The "Java Problem"

Disabling and Obfuscation

The ASP Problem

License Compatibility

LGPL Version 3.0 (LGPL3

A New Approach for LGPL

Adoption of LGPL3

Politics and Context

Definitions

Compliance

Drawbacks

Open Source Development Agreement

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