Open Source Licensing Software Freedom and Intellectual Property Law

by Rosen, Lawrence

• ISBN13: 9780131487871
• ISBN10: 0131487876
• Edition: 1st
• Format: Paperback
• Copyright: 2004-07-22
• Publisher: Prentice Hall

Summary

Understand the legal foundations of Open Source licenses -and why SCO's politically charged attack on Linux and the GPL is doomed to fail.

Author Biography

Lawrence Rosen is an attorney specializing in technology and a computer professional who has taught programming and managed several computer departments at Stanford University. He is currently general counsel and secretary of Open Source Initiative (OSI), formerly served as its executive director, and has written several major open source licenses

Table of Contents

Foreword	xv
Preamble	xix
Chapter 1 Freedom and Open Source	1	(12)
The Language of Freedom	1	(1)
Defining Open Source	2	(6)
Open Source Principles	8	(5)
Chapter 2 Intellectual Property	13	(28)
Dominion Over Property	13	(2)
Right Brain and Left Brain	15	(2)
Acquiring Copyrights and Patents	17	(2)
Original Works of Authorship	19	(1)
Works Made for Hire	20	(2)
Exclusive Rights of Copyright and Patent Owners	22	(2)
Copies	24	(1)
Exceptions to the Exclusive Right to Make Copies	25	(1)
Collective and Derivative Works	26	(2)
The Chain of Title for Copyright	28	(2)
The Chain of Title for Patents	30	(2)
Joint Works	32	(1)
Assigning Ownership	33	(3)
Duration of Copyright and Patent	36	(1)
Trademarks	37	(2)
Exceptions to Intellectual Property Protection	39	(2)
Chapter 3 Distribution of Software	41	(10)
Contributors and Distributors	41	(1)
Distribution	42	(1)
Open Source Collaboration	43	(2)
Contributor Agreements	45	(4)
What About Users?	49	(2)
Chapter 4 Taxonomy of Licenses	51	(22)
What Is a License?	51	(2)
Bare Licenses	53	(4)
Licenses as Contracts	57	(9)
Patent Licenses	66	(2)
Template Licenses	68	(1)
Types of Open Source Licenses	69	(4)
Chapter 5 Academic Licenses	73	(30)
The BSD Gift of Freedom	73	(4)
BSD License as Template	77	(1)
The BSD License Grant	77	(2)
Source and Binary Forms of Code	79	(1)
Conditions under the BSD	80	(3)
Warranty and Liability Disclaimer	83	(2)
The MIT License	85	(2)
The Right to Sublicense	87	(2)
The Warranty of Noninfringement	89	(2)
The Apache License	91	(1)
Protecting Trademarks	92	(1)
The Apache Contributor License Agreement	93	(2)
The Artistic License	95	(1)
License Preambles	96	(1)
When Amateurs Write Licenses	97	(4)
Big Picture of Academic Licenses	101	(1)
Apache License Version 2.0	102	(1)
Chapter 6 Reciprocity and the GPL	103	(38)
The GPL Bargain	103	(2)
Copyleft and Reciprocity	105	(2)
Policy Objectives	107	(2)
The Preamble to the GPL	109	(3)
GPL as Template	112	(1)
The GPL Applies to Programs	113	(2)
Linking to GPL Software	115	(4)
Copyright Law and Linking	119	(2)
The LGPL Alternative	121	(4)
GPL Grant of License	125	(3)
Access to Source Code	128	(3)
"At No Charge"	131	(2)
Other Obligations in the GPL	133	(1)
The GPL and Patents	134	(2)
Accepting the GPL	136	(5)
Chapter 7 The Mozilla Public License (MPL)	141	(20)
The Mozilla Story	141	(2)
The MPL Reciprocity Bargain	143	(2)
Contributors and Modifications	145	(2)
The MPL and Patents	147	(7)
Defending Against Patents	154	(2)
Other Important MPL License Provisions	156	(3)
Other Corporate Licenses	159	(2)
Chapter 8 The Common Public License (CPL)	161	(18)
CPL as a Template	161	(1)
A Digression about Well-Written Licenses	162	(1)
Grant of Copyright and Patent Licenses	163	(4)
Reciprocity under the CPL	167	(1)
Exception to Reciprocity	168	(2)
Patent Defense	170	(3)
Defend and Indemnify	173	(3)
Ownership of the CPL License	176	(3)
Chapter 9 The OSL and the AFL	179	(50)
Academic or Reciprocal?	179	(3)
Initial Paragraph of OSL/AFL	182	(43)
1. Grant of Copyright License	184	(4)
2. Grant of Patent License	188	(2)
3. Grant of Source Code License	190	(2)
4. Exclusions from License Grant	192	(2)
5. External Deployment	194	(2)
6. Attribution Rights	196	(2)
7. Warranty of Provenance and Disclaimer of Warranty	198	(4)
8. Limitation of Liability	202	(4)
9. Acceptance and Termination	206	(3)
10. Termination for Patent Action	209	(9)
11. Jurisdiction, Venue, and Governing Law	218	(2)
12. Attorneys' Fees	220	(2)
13. Miscellaneous	222	(1)
14. Definition of "You" in This License	223	(1)
15. Right to Use	224	(1)
Copyright and Licensing Notice	225	(4)
Chapter 10 Choosing an Open Source License	229	(26)
How Licenses Are Chosen	229	(1)
The Free-Rider Problem	230	(1)
Making Money from Open Source	231	(1)
In-Licensing	232	(3)
Out-Licensing	235	(3)
Contributions to Projects	238	(3)
License Compatibility for Collective Works	241	(2)
License Compatibility for Derivative Works	243	(9)
Relicensing	252	(3)
Chapter 11 Shared Source, Eventual Source, and Other Licensing Models	255	(14)
Alternatives to Open Source	255	(1)
Shared Source	256	(3)
Public Source	259	(3)
Dual and Multiple Licensing	262	(2)
Eventual Source and Scheduled Licensing	264	(3)
Combining Licensing Models	267	(2)
Chapter 12 Open Source Litigation	269	(26)
Owning a Cause of Action	269	(2)
Damages	271	(3)
Injunctions	274	(2)
Standing to Sue	276	(1)
Burden of Proof	277	(3)
Enforcing the Terms of a Contract	280	(3)
Disputes over Ownership of Intellectual Property	283	(1)
Disputes over Derivative Works	284	(5)
Patent Infringement Litigation	289	(1)
SCO vs. Open Source	290	(5)
Chapter 13 Open Standards	295	(18)
Defining Open Standards	295	(1)
Open Specifications	296	(2)
Enforcing the Standard by Copyright Restrictions	298	(1)
Licensing the Test Suite: The Open Group License	299	(2)
Discouraging Forks: Sun's SISSL	301	(2)
Patents on Open Standards	303	(1)
Reasonable and Nondiscriminatory	304	(2)
Royalty Free	306	(1)
The W3C Patent License	307	(3)
Justifying Open Standards and Open Source	310	(3)
The Open Source Paradigm	313	(2)
Appendices	315	(70)
Index	385	(12)
About the Author	397

Excerpts

In February 1989, Richard Stallman first released his GNU project software for UNIX under version 1.0 of the GNU General Public License (GPL). In June of that same year, Bill Joy first released a free version of UNIX software under the University of California's Berkeley Software Distribution (BSD) license. These relatively quiet events signaled a new era in software licensing. Almost imperceptibly at first, but with increasing speed and energy, this licensing revolution, now widely referred to as open source, spread around the world. By the first year of this century, approximately 17,000 open source projects were active on the SourceForge servers ( www.sourceforge.net). Four years later there are over 74,000 such projects and more than 775,000 registered SourceForge users. The majority of that open source software is currently licensed under the GPL or BSD licenses; the rest use one of about fifty other licenses based on the same open source principles. Open source is now dominating many of the market conversations in the software industry. While software companies continue to release valuable and high-quality products under proprietary licenses, most are also embracing open source product development and distribution models as well as the software licenses that make those models possible. This book is about the law but it is not written for lawyers. You will not find citations to case law or rigorous academic analyses suitable for publication in a law journal. This book is written for my friends in the open source community who write and distribute software and who are confused about which licenses to use. It is also written for our customers who are concerned about how software licenses may affect them and their businesses. It seeks to dispel myths and fears about open source software licensing and to explain the legal context in which open source software exists. Open source is built upon a foundation of intellectual property law, particularly copyright law. Open source software is owned by its authors, who license it to the public under generous terms. Open source licenses do not seek to destroy or steal intellectual property. The first chapters of this book explain the intellectual property laws that make open source licensing possible. The following chapter describes the first broad category of open source licenses, what I call academic licenses to acknowledge their heritage in universities. These academic licenses allow software to be used, copied, modified, and distributed, even with proprietary softwareand their source code is included. These licensors generously donate their software to the public for use by anyone. The GPLand the MPL, CPL, and OSL licenses that followed itstrike what I call a reciprocal bargain. Licensor and licensees share a public commons of open source software, but any modifications to that software must be distributed under the same license. These four licenses are much more complex than the academic licenses and so I devote a chapter to each of them. Choosing a license to apply to your open source software is not an easy decision and so I devote an entire chapter to it. The answer depends intricately upon your business model, on your software and product architecture, and on understanding who owns the intellectual property in your products. If you expect a checklist method to select a license, don't bother reading this chapter; it cannot be so easy. Eventually, a licensor or licensee may need to enforce the terms and conditions of an open source license. I devote an entire chapter to satisfying the curiosity of those who may want to sueor who are afraid of being suedunder an open source license. Finally, I begin to address a potentially bigger issue than open source. Open standards are really the battlefield on which we will determine whether software can truly be free and open. That topic deserves a book of its own someday; this isn't it, but I'm making a start. Turning a software license into interesting reading is probably an insurmountable challenge. There is no other way than reading the words of a license to understand what it means. And so, for those of you who won't actually plod your way through the detailed explanations of licenses herein, I want to give you the conclusion. As a user of open source software you may go forth and live free. None of the licenses in this book restrict in any way your use of open source software. But if you are more directly involved in the creation, modification, or distribution of software, or if you manage or advise the in-licensing of software into your company, you should at the very least consult your attorney to make sure you don't commit to more than you're willing to deliver. This book may help you ask your attorney the right questions.