REASONABLE
ANARCHY:
OPEN
SOURCE SOFTWARE AND
CREATIVE
COMMONS LICENSES
ROBERT L.
PERCIVAL
OGILVY RENAULT
PRESENTED
AT:
The Fifth IT Law Spring
Training Program:
REASONABLE ANARCHY: OPEN SOURCE SOFTWARE AND
CREATIVE COMMONS LICENSES
Robert L. Percival, Ogilvy Renault [1]
“Think ‘free speech’, not ‘free beer”.[2]
In recent years the information technology industry has witnessed the rapid proliferation of the development and use of open source software. While not a recent development - open source software development and distribution has operated in the periphery for at least twenty years or more – arguably what has contributed to the relatively recent surge in importance can be attributed to the Internet. The nature of the Internet lends itself to the independent, many persons contributory nature of open source software development and distribution.
What open source has succeeded in doing is to challenge traditional copyright principles as they relate to software and in the process challenge traditional software manufacturers’ development, distribution and licensing business models. To many, such a development is certain anarchy. To its proponents, open source generally represents a superior, more flexible and reasonable approach to software development and distribution; although there is a wide spectrum of beliefs and approaches that fall within the “open source concept”. At its heart, the open source software debate is, perhaps, one of freedom versus control [3].
Open source software has now transgressed the threshold of periphery to mainstream.[4] As a result, lawyers who are involved in advising developers, users and acquirers of technology must be increasingly versed in the issues raised by open source software.
This paper will briefly examine the issues and challenges that are raised by open source software and the related legal implications in contrast to traditional approaches to software licensing. The paper concludes with a brief examination of another emerging licensing model which, although not primarily related to software, legal counsel should familiarize themselves with: Creative Commons licensing.
What is Open Source: A Brief Overview
Open source [5]
as an idea was famously institutionalized and popularized by the formation of
the Free Software Foundation by
A basic understanding of software is critical
to an understanding of the issues surrounding open source. Computer programs, also called software, are
the instructions which enable the physical components (hardware) of the
computer to operate. A computer program
is defined by section 2 of the Canadian Copyright Act [7]
as a “set of instructions or statements, expressed, fixed, embodied or stored
in any manner, that is to be used directly or indirectly in a computer in order
to bring about a specific result”. More
technically, a computer program is essentially the specification of an
algorithm, which is meant to be interpreted and executed by a computer. There are three essential types of software
necessary for a computer to function.
The first is the microcode which is the basic layer of software in a
computer. Microcode is a program that
controls the fine details of the execution of one or more primitive functions
of a computer.[8] The second layer is the operating system
software, which controls the resources of a computer and manages the flow of
information within the computer.
Operating system software performs routine tasks required by most
applications [9] and is a
necessary intermediary between computer hardware and application programs. The
third layer is application software. Applications are computer programs
designed to perform or accomplish a particular task of the user of the
computer. [10] It is the application program with which a
user of a computer interfaces. A
software engineer normally writes a program in one of many high-level, human-readable programming languages
such as PASCAL, FORTRAN or C. Software
written in this format is known as “source code”. The source code of a computer program must then be translated into
a form called machine or object code [11]
that can be understood and executed by a computer. Having a copy of the object code permits a user to operate and
use the software but does not allow the user to modify, adapt or enhance the
software as may be necessary or desirable either to maintain the software (bug
fixes, error correction, etc.) or to customize it to the user’s needs or to
otherwise create new functionality or features that the user may desire. The
source code is essentially the blueprint to the software.[12] Without a copy of the source code a user is
unable[13]
to maintain, customize or enhance the software, and must rely on the commercial
software manufacturer to do so.[14]
In the traditional software development and
distribution model the object code version of the software is licensed to the
end user under a software license agreement.
The terms of the software license are often restricted and (in addition
to the restrictions discussed above that are imposed by virtue of the type of
code – object code - that is distributed) do not permit, by their terms,
modification or re-distribution of the distributed object code. In that way (proponents argue), the balanced objective of copyright law [15]
(to maximize societal progress by protecting authors) is achieved.[16]
An open source model differs in two
fundamental respects. First, software
development occurs through a community or network of independent software
developers (whose individual contributions vary) who all have the right to
access, modify and contribute to the software source code. Therefore the software is a collaborative
approach by many (sometimes thousands) of contributors (vs. a single commercial
enterprise with perhaps a single commercial goal in mind). The second
significant difference is the scope of rights that are attached to open source
software in respect of its use and distribution; use of open source software is
still subject to a license. The
difference is that an open source license provides much broader rights than are
provided through the traditional object code licensing approach.[17]
Some of the difficulty surrounding an
understanding of what open source is and what it is not [18]
arises from the fact that on the one hand, for the serious open source
community, there is an accepted strict definition as to what constitutes open
source, and on the other hand, for others that are trying to capture some of
the essence of the open source concept there are variations of the official
definition. The “Open Source
Definition” is now maintained by the Open Software Initiative (the “OSI”).[19] The Open Source Definition, reproduced
below, provides criteria which must be met for a license to be certified by the
OSI as constituting open source. It
essentially promotes three primary elements: the right to distribute; the right
to get source code; and the right modify.
The Open Source Definition (Version 1.9) [20]
Introduction
Open source doesn't just
mean access to the source code. The distribution terms of open-source software
must comply with the following criteria:
1. Free Redistribution
The license shall not
restrict any party from selling or giving away the software as a component of
an aggregate software distribution containing programs from several different
sources. The license shall not require a royalty or other fee for such sale.
Rationale: By constraining the license to require free redistribution, we eliminate
the temptation to throw away many long-term gains in order to make a few
short-term sales dollars. If we didn't do this, there would be lots of pressure
for cooperators to defect.
2. Source Code
The program must include
source code, and must allow distribution in source code as well as compiled
form. Where some form of a product is not distributed with source code, there
must be a well-publicized means of obtaining the source code for no more than a
reasonable reproduction cost preferably, downloading via the Internet without
charge. The source code must be the preferred form in which a programmer would
modify the program. Deliberately obfuscated source code is not allowed.
Intermediate forms such as the output of a preprocessor or translator are not
allowed.
Rationale: We require
access to un-obfuscated source code because you can't evolve programs without
modifying them. Since our purpose is to make evolution easy, we require that
modification be made easy.
3. Derived Works
The license must allow
modifications and derived works, and must allow them to be distributed under
the same terms as the license of the original software.
Rationale: The mere ability to read source isn't enough to support independent
peer review and rapid evolutionary selection. For rapid evolution to happen,
people need to be able to experiment with and redistribute modifications.
4. Integrity of The Author's Source Code
The license may restrict
source-code from being distributed in modified form only if the license allows
the distribution of "patch files" with the source code for the
purpose of modifying the program at build time. The license must explicitly
permit distribution of software built from modified source code. The license
may require derived works to carry a different name or version number from the
original software.
Rationale: Encouraging lots of improvement is a good thing, but users have a right
to know who is responsible for the software they are using. Authors and
maintainers have reciprocal right to know what they're being asked to support
and protect their reputations.
Accordingly, an
open-source license must guarantee that source be readily available, but may
require that it be distributed as pristine base sources plus patches. In this
way, "unofficial" changes can be made available but readily
distinguished from the base source.
5. No Discrimination Against Persons or
Groups
The license must not discriminate against any person
or group of persons.
Rationale: In order to get the maximum benefit from the process, the maximum
diversity of persons and groups should be equally eligible to contribute to
open sources. Therefore we forbid any open-source license from locking anybody
out of the process.
Some countries,
including the
6. No Discrimination Against Fields of
Endeavour
The license must not
restrict anyone from making use of the program in a specific field of endeavor.
For example, it may not restrict the program from being used in a business, or
from being used for genetic research.
Rationale: The major intention of this clause is to prohibit license traps that
prevent open source from being used commercially. We want commercial users to
join our community, not feel excluded from it.
7. Distribution of License
The rights attached to the
program must apply to all to whom the program is redistributed without the need
for execution of an additional license by those parties.
Rationale: This clause is intended to forbid closing up software by indirect means
such as requiring a non-disclosure agreement.
8. License Must Not Be Specific to a Product
The rights attached to the
program must not depend on the program's being part of a particular software
distribution. If the program is extracted from that distribution and used or
distributed within the terms of the program's license, all parties to whom the
program is redistributed should have the same rights as those that are granted
in conjunction with the original software distribution.
Rationale: This clause forecloses yet another class of license traps.
9. License Must Not Restrict Other Software
The license must not place
restrictions on other software that is distributed along with the licensed
software. For example, the license must not insist that all other programs
distributed on the same medium must be open-source software.
Rationale: Distributors of open-source software have the right to make their own
choices about their own software.
Yes, the GPL is
conformant with this requirement. Software linked with GPLed libraries only
inherits the GPL if it forms a single work, not any software with which they
are merely distributed.
*10. License Must Be Technology-Neutral
No provision of the license may be predicated on any
individual technology or style of interface.
Rationale: This provision is aimed specifically at licenses which require an
explicit gesture of assent in order to establish a contract between licensor
and licensee. Provisions mandating so-called "click-wrap" may
conflict with important methods of software distribution such as FTP download,
CD-ROM anthologies, and web mirroring; such provisions may also hinder code
re-use. Conformant licenses must allow for the possibility that (a)
redistribution of the software will take place over non-Web channels that do
not support click-wrapping of the download, and that (b) the covered code (or
re-used portions of covered code) may run in a non-GUI environment that cannot
support popup dialogues.
Open Source Licenses
The Open Source Definition is arguably the
result of “what has gone before”. That
is, the work of different open source threads that have contributed to the
notion of open source over the past twenty years or so. According to the OSI the "classic"
licenses, GPL, LGPL, BSD, and MIT[21],
were the most commonly used for open-source software before the Mozilla release
in early 1998. The Mozilla Public
License has since become widely used.
There are today many different forms of open source licenses that have
been approved by the OSI as meeting the Open Source Definition. The important thing to recognize about open
source licenses is that, while they all share certain common attributes,[22]
they do represent a spectrum of rights and freedoms. Whether you are analyzing
an open source license from the perspective of a developer or a user there are
advantages and disadvantages to the various forms of licenses that you must be
aware of. What follows is a brief
explanation of the major OSI approved open source licenses. [23]
The GNU General Public License (GPL)
The GPL originated out of the Open Software
Foundation’s GNU Project and the GNU General Public License founded by
The preamble to the GPL license states: “when
we speak of free software, we are referring to freedom, not price. Our general public licenses are designed to
make sure you have the freedom to distribute copies of free software (or charge
for the service if you wish), that you receive source code or can get it if you
want it, that you can change the software or pieces of it in new free programs;
and that you know you can do these things.”[26]
One of the essential requirements of the GPL
is that it prevents modifications made to GPL licensed open source to be taken
private. Any and all modifications must be distributed under the GPL. Thus, the GPL does not permit someone
to take software distributed under the GPL and incorporate it into a
proprietary software program. This
obligation to redistribute GPL licensed software and modifications on the same
terms as one received it, contributes to the so called ‘viral’ element of the
GPL license.
The
The BSD license developed out of
improvements to the UNIX operating system[27]
that were developed at the
The BSD is often referred to as the “least
restrictive” of the primary open source licenses. Unlike the GPL, the BSD does
not require derivative works to be licensed on the same terms as the initial
BSD license. Modifications can be taken
private (i.e. software that was received under BSD license can be modified and
redistributed in non-source code form only, under a commercial, non-BSD
license). The flexibility that the BSD
provides in the area of re-licensing derivative works has made it a popular
model for a wide variety of open source licenses.
Mozilla Public
License (MPL)
Perhaps as fundamental to the open source movement as Stallman’s earlier contributions was Netscape Corporation’s decision to release its popular Internet browser program “Netscape Navigator” as an open source product. Netscape’s decision to do so had a significant impact on the direction of open source and ultimately lead to the publication of the Open Source Definition discussed above.[28] Because Netscape Navigator was already an existing commercial product and contained many third party components, Netscape ultimately concluded that the prospect of getting all third parties to agree to one of the existing open source licenses was not realistic. Therefore, Netscape decided to pen its own open source license to address many of the Netscape specific issues it would have to address if the product was to be released as open source.
Inspired in part by the BSD and its own commercial needs, Netscape developed two versions of the same license: The Netscape Public License (NPL), and the Mozilla Public License (MPL). The NPL was primarily designed to provide Netscape with the ability to control the licensing of code related to its own Netscape browser and contains special terms that apply to Netscape and nobody else. The MPL does not contain those special terms.
The Mozilla license reads more like a standard commercial license than the GPL or BSD.[29] Developers can import MPL licensed code into proprietary products and sell the proprietary code without making it available as open source. However, any changes that are made to the MPL licensed source code must be made freely available under the MPL. Like the BSD, the Mozilla license allows additions to the original software, as opposed to modifications of it, to be licensed under a different license, or not to be published at all.[30]
The ability to license derivative works under a proprietary license makes the Mozilla license especially attractive to commercial developers that are engaged in both proprietary and open source development. As commercial use of open source licenses continues to grow, the influence of the Mozilla based license will undoubtedly grow with it.
Other Open Source
Licenses
As noted above, today
there are many other open source licenses.
Some have been approved by the OSI and others have not. For a list of OSI approved open source
licenses, see the OSI web site.[31]
Open Source Business Models: The Business of Open Source
As noted above, open source does not mean “free”. In the movement away from the “free software movement” to the recasting as “open source” there is the recognition that while (in order to be considered as open source) the source code is made freely available, a person may elect to use that freely available source code in the pursuit of its own for-profit commercial business interest. In fact, the grass roots approach to open source while itself remaining an important and viable part of the open source marketplace, has taken on an increasingly corporate image as the more traditional blue chip software vendors increasingly are turning to open source products as being a significant part of their strategic focus. Open source, once considered a diversion for computing hobbyists, is increasingly encroaching on traditional markets and, in the process, altering the strategies of powerful technology companies. As the market has rushed to embrace open source software, [32] traditional software vendors believe that they have little choice but to adopt at least some form of the popular trend, just to keep pace with the rest of the industry.[33]
Using open source software as the underpinnings of a commercial enterprise has resulted in numerous business models that have continued to mature over recent years. A well known publication by Frank Hecker [34] sets out in great detail many of the business models that can be (and are being) used by companies that are either creating or that otherwise wish to leverage open source software products. Briefly, Hecker suggests the following models:
“Support Sellers," in which revenue comes from media distribution, branding, training, consulting, custom development, and post-sales support instead of traditional software licensing fees.
"Loss Leader," where a no-charge open-source product is used as a loss leader for traditional commercial software.
"Widget Frosting," for companies that are in business primarily to sell hardware but which use the open-source model for enabling software such as driver and interface code.
"Accessorizing," for companies which distribute books, computer hardware and other physical items associated with and supportive of open-source software.
"Service Enabler," where open-source software is created and distributed primarily to support access to revenue-generating on-line services.
"Brand Licensing," in which a company charges other companies for the right to use its brand names and trademarks in creating derivative products.
"Sell It, Free It," where a company's software products start out their product life cycle as traditional commercial products and then are continually converted to open-source products when appropriate.
"Software Franchising," a combination of several of the preceding models (in particular "Brand Licensing" and "Support Sellers") in which a company authorizes others to use its brand names and trademarks in creating associated organizations doing custom software development in particular geographic areas or vertical markets, and supplies franchises with training and related services in exchange for franchise fees of some sort.
“Hybrid Models” Possible business models that involve software distributed under licenses that are not quite open-source in the strict sense, but are also not as restrictive as traditional proprietary licenses.
Currently, one of the hottest markets in the open source space is in the services space. With widespread adoption of open source software by mainstream corporations, the computer services market is charging to keep up. With the number of open-source products on the rise, there has been a surge in services offerings, such as consulting and support, designed specifically for open-source software like Linux, the Apache Web server and MySQL database. Analysts expect the market to come to a head in 2005. "Open source won't be about the software at all--it will be about the services," according to Forrester Research. "The recognition will dawn on people that this is a services play, not a software play." [35]
As the open source market continues to mature many of the models identified by Hecker, as well as new models, will continue to develop to meet the needs of the marketplace and the software creators that service it.[36]
Legal Issues
Given that open source software is now an integral part of the software industry, and as discussed above continues to grow at an astonishing rate, legal counsel involved in open source software creation, licensing and acquisition should be aware of the legal issues that are involved. From ownership to infringement to enforcement there are issues that continue to bedevil commercial counsel’s on-going quest for risk management in commercial transactions involving open source. What follows is not intended to be an in-depth analysis of such issues, but rather an attempt to identify and describe the issues that require careful consideration.
Copyright &
Ownership
The Canadian Copyright Act was amended in 1988 to cover software programs as “literary works.”[37] Traditional software manufacturers use licenses to control customers’ use of their copyrighted material. The open source model does not differ from the traditional approach in this sense: it also relies on copyright and licensing to control the use of software. But in the case of open source, licenses are primarily used to ensure that source code is kept free, rather than to restrict it. The distinction between open source and proprietary commercial software, therefore, is not based on the absence of a reliance on copyright and licenses in the one case and the presence of a (copyright) license in the other, but on the absence or presence of certain license terms.[38]
Contributors to open source software remain the owners of the code they develop and apply the terms of the applicable open source license to such code. For the most part[39] open source software is developed by many, with each retaining copyright ownership of their respective contributions. Due to the community development nature of open source, questions concerning the ownership of certain elements of the open source can become complicated over time. Further, as open source software development continues to become more of a commercial endeavour much open source software is being written by employees of corporations in which case the employer and not the author is the owner of the copyright.[40] All that is to say that trying to determine who has rights to what in open source software can be much more difficult in the open source context and in some cases may be next to impossible.[41]
An illustration of the complexity of this issue is the SCO v. IBM [42] lawsuit originally launched by SCO in 2003 and still pending at this time. Although the claims have been amended as the suit has progressed, the main thrust of the suit was that SCO/Caldera claimed that IBM, through its support and development of Linux, breached contracts IBM entered into with Caldera/SCO's predecessors in Unix ownership regarding the non-disclosure of Unix code that had been provided to IBM. Caldera/SCO alleged IBM improperly introduced Unix code and methods into Linux (Linux uses a GPL license; SCO alleged that IBM incorporated elements of Unix into its Linux products and, as a result of freely distributing the source code of the Linux based products in accordance with the GPL, violated a confidentiality agreement it had with SCO regarding Unix). Much of the substance of the original complaint has subsequently been demolished in both factual and intellectual property claims. Caldera/SCO currently asserts only contract rights, though it reserves pursuit of copyright or other claims. The software that underlies the litigation is the Unix operating system originally developed by AT&T. Regardless of the merits of this particular case (which have been widely debated) this case underscores the point raised above: ownership of open source can be a difficult matter and the SCO/IBM litigation is a good example of the complexities and uncertainties that can arise in using open source software.[43]
A related ownership issue concerns the manner in which open source software products can develop over time that can lead to the “forking” of the product. Contributors to a particular product may disagree as to the direction of a particular product (e.g. programming structural decisions, etc.). Such disagreement can lead to different factions going in different directions (having started with the same underlying code in some state of development), the result being multiple versions of the “same” product being developed. In that context, ownership and enforcement rights can become complex. This is more likely to be an issue in complicated software development projects, such as operating system development, which can take significant time to develop (think Linux).
Some commentators have also suggested that open source products may raise moral rights issues due to the fact that it is not possible in every jurisdiction which recognizes moral rights to fully assign or waive such rights. Such rights may impact subsequent modification of open source software in circumstances where there has been derogatory treatment of previous developers’ work.
License Issues:
Enforceability and Enforcement and Risk Management
Open
source licenses are not signed by the parties to them. Often there may also be a question as to
whether or not the terms of the open source software license have been brought
to the attention of the person that is accessing the open source software. In that sense they are akin to “shrinkwrap”
software licenses.[44] The validity of shrink wrap licenses is not
clear in
Another interesting issue is one of interpretation. Although legal input has been provided in the development of many of the open source licenses, many were drafted by lay persons in plain language. As a consequence, the language and drafting may give rise to interpretative difficulties or may lack terms and conditions that may be at odds with contract principles and legislative requirements in various jurisdictions and that may lead to difficulties in enforcement or a clear understanding by licensees as to what may and may not be done under a particular open source license.[48]
One
of the most difficult issues facing open source in a commercial context is the
practical issue of the enforcement of open source licenses. The enforceability of open source licenses
remains an open question with few courts having addressed the issue. In 2004 a German court heard a case between
Finally, there are significant risk management issues associated with open source software. In traditional proprietary software licensing context the proprietary software developer will usually provide its licensees with significant representations, warranties and indemnities concerning the software that is being licensed. For example, the vendor might represent that the software has been developed by it alone and that the software does not infringe the copyright of any third party. That representation might be further backed up by a licensor indemnification in the event that the licensee is sued by a third for intellectual property infringement concerning the licensee’s use of the licensed software. In contrast, most open source software is provided with no warranties and usually no (or very limited) indemnification, including with respect to third party intellectual property infringement. As a practical risk management issue, particularly for corporate customers, such a limitation can be a significant obstacle to moving to an open source product and can represent real risk to the prospective licensee; particularly when the alternative might be a company that offers significant legal protections to the licensee and that has the financial where-with-all to back it up. [51]
Uniform Computer
Information Transactions Act –
The
Uniform Computer Transactions Act (“UCITA”) is a proposed "Uniform
Law" in the
In the open source context, according to some U.S. commentators,[54] one of the primary concerns around UCITA have been the so called “gap filler” provisions that sets default provisions for licenses that fail to address certain terms. As such, the terms that UCITA may imply into an open source license may have the effect of undermining the original intent of the open source license terms (for example, by implying a warranty where a particular open source license expressly did not).
Despite the fact that UCITA seems to be stalled and will not likely be implemented in the majority of states, its status should be closely monitored as to its potential effects on open source licenses.[55]
Trade-Mark Issues
Trade-marks are used to denote the source of goods or services. Usually in the form of words, phrases or graphic symbols, trade-marks are used by trade-mark owners to guarantee the quality or genuineness of a product. Trade-mark law obligates trade-mark owners to police the use of their marks to ensure that products distributed in association with the trade-mark (including licensees of the trade-mark) meet the standards the trade-mark is meant to ensure. If a trade-mark owner fails to police use of the mark, the trade-mark rights may eventually become unenforceable. It is in that vein that the use of trade-marks in association with open source products can raise difficulties. Since open source software is developed by numerous contributors from around the world, it is difficult to ensure that a trade-mark holder’s quality standards are met in any subsequent product that may utilize the mark. A lack of proper supervision by the owner of a particular trade-mark over the quality of others’ products that are using the trade-mark can result in the dilution of, and ultimately the loss of the ability to enforce the trade-mark. Thus open source producers need to be wary in the manner in which trade-marks are used and enforced in association with open source products. This in turn has an impact on how open source developers can “brand” their software. So, while open source programmers may be free to modify and redistribute Red Hat’s Linux software, they do not have the same freedom when it comes to the use of either the Red Hat trade-mark or the Linux trade-mark. [56] Particularly as open source continues to move to the commercial mainstream, the importance of trade-marks will continue to grow as prospective customers look to established open source operations to provide not only quality open source products, but also related services. As trade-mark recognition grows in the open source world, the importance of protection will also increase as open source producers will stand to lose a great deal if what have become well recognized and trusted brands are subsequently threatened. [57] A potential threat to open source trade-marks lies in the other risk associated with open source and briefly discussed elsewhere in this paper; the issue of “forking”. Typically the concern of forking is downplayed as customers are thought to typically follow the official releases of source code due to the reputations of those involved (as opposed to following a less established fork proposed by another group). The trade-mark issue that could arise is a situation where two (or more) equally prominent factions wanted to take a particular open source product in different directions and both wanted to use the applicable trade-mark. [58]
Patent Issues
Many open source proponents have long been concerned about the threat that software patents may pose to open source software. Indeed in the past few years open source proponents have become increasingly alarmed at the risk that software patents could pose to open source when used as “offensive weapons”. In recent years, while those concerns have been fuelled (especially in the United States) by an explosion of software patenting[59] there has also been a recognition by some (of the more traditional software vendors) that software patents can (at least in some instances) in fact perhaps be impediments to technology evolution. [60]
Opponents of software patents generally argue that the uniqueness or non-obviousness of many software patents is questionable (i.e. questions as to their validity), that the length of patent protection is far too long for a rapidly innovating industry such as the software industry, and that software patents will generally limit the freedom with which ideas can be shared, thus inhibiting software development.[61]
In this software patent frenzied environment, open source developers, like other software developers are increasingly subject to the risk that software they develop may infringe third party software patent holders. Open source developers are, however, perhaps at greater risk of being discovered due to the fact that the source code is “open” for all the world to see and it is therefore much easier for software patent holders to determine if a particular open source product is an infringing product (vs. a proprietary software product where all of the mysteries of how it a software product accomplishes something remains much more difficult to determine).
Of course open source developers may also be able to seek patent protection for their own contributions to open source software. Such actions could lead to the patent holder being able to restrict the further distribution of some elements of the affected product. Seeking patent protection is, perhaps, antithetical to the concept of open source. In an effort to curtail this a number of the open source licenses (including the GPL) have attempted to place restrictions on an ability of the open source licensee to apply for patent protection.
Finally, in the event of a patent infringement claim it is possible that open source developers could be somewhat limited in a common patent dispute settlement technique; that of royalty-free cross licenses (each party to the suit agrees not to enforce their respective patents against the other). As such cross licenses only address the actual parties to the license in an open source context it would be difficult to bring all of the affected open source parties “to the table” (never mind the problem that without patent rights of their own to offer up in exchange, the open source parties do not have much to offer the patent holder in exchange).
Concerns In the M
& A Context
It is quite common for most commercial software developers / licensors to acquire software components from third parties under license to incorporate as a subset of their own product for distribution to their own customers.[62] However, acquiring a technology company that is either the developer or licensee of open source software can raise a number of additional concerns that need to be considered. The following issues should be considered.[63]
(1) Due Diligence: Due diligence efforts need to specifically focus on the constituent elements of the code being acquired (i.e. don’t assume it is proprietary and not open source – you will be surprised by how much open source is out there). Well run software companies will know what elements of the code have been acquired from third parties and of those third parties which code is open source. On the other hand, smaller start-ups may not yet have that discipline and the management team may not realize that its software engineers have incorporated open source into their proprietary code. Determine what open source exists and review the terms of the applicable open source license(s) to understand the compliance issues and determine what steps the target has in fact taken to comply.
(2) Contamination of proprietary source code: As discussed above, the form and substance of open source licenses vary greatly and are often distinguishable by the degree to which they address the requirement to redistribute modified source code. At one end of the spectrum is the GPL,[64] which requires that if you redistribute the code received under the GPL you must also redistribute all your modifications in source code form and also permit your licensees the right to modify and distribute in source code form. This is the so-called ‘viral’ element of the GPL. The concern is raised by the meaning of Section 2(b) of the GPL which has been the source of much confusion and debate. The concern is essentially that incorporating any code written under the GPL into other software will taint that other software by requiring that the second software program in which the GPL code is included also then be licensed under the GPL. Therefore an acquirer will need to pay particular attention as to whether any of the target’s proprietary closed-source code has been contaminated by the potential viral element of an open source license such as the GPL.[65]
(3) Representations and Warranties: The representations and warranties of a target that has incorporated open source into its commercial product will likely be much less than a proprietary software developer would typically provide in an acquisition (as the target will have acquired the open source without warranty itself and because the target will not usually know the source of the code and subsequent modifications ). Thus, the acquisition arguably interjects increased risk to the acquirer that is not often present in a non-open source context. Often the various components of the code being acquired will be “carved-up” and less onerous representations and warranties concerning the open source components will be provided. At a minimum the acquirer will want warranties concerning the targets compliance with the terms of the applicable open source license. Additionally, the acquirer will want to examine the representations and warranties that the target provides to its own customers to ensure that the target has not created an undue amount of risk by providing representations and warranties that are “risky” in the open source context.
(4) Indemnification: It is unlikely that the acquirer will be able to obtain a substantive intellectual property indemnification from the target concerning losses that the acquirer might suffer in the future in the event that the open source software is found to infringe third party rights. Again, the acquirer will want to examine the indemnification (if any) that the target provides to its own customers to ensure that the target has not created an undue amount of risk by providing indemnification obligations that are “risky” in the open source context.
(5) Valuation: Valuation of acquired code / company may be affected by the extent to which its product(s) contain open source due to the incremental risks to an acquirer that such might represent (as discussed above and elsewhere herein). Also, the acquirer may face its own commercial challenges in the commercial distribution of the acquired product(s) to the extent it is required by its customers to provide unqualified representations and warranties and indemnities concerning the use of all (and not just the proprietary components) of the software by such customers.
PART II : CREATIVE
COMMONS LICENSING
Introduction [66]
Creative Commons is a non-profit corporation that was founded in 2001[67] on the notion that some people may not want to exercise all of the intellectual property rights the law affords them. Creative Commons believes there is a demand for an easy yet reliable way to tell the world "Some rights reserved" or even "No rights reserved" and that all-out copyright doesn't help many gain the exposure and widespread distribution they want with their copyright protected works. Some may want to rely on different business models (rather than full-fledged copyright) to secure a return on their creative investment. Others get fulfillment from contributing to and participating in an intellectual commons. For whatever reason, it was clear to the founders of Creative Commons that many people want to share their work -- and the power to reuse, modify, and distribute their work -- with others on generous terms. Creative Commons was established with the intention of helping people express this preference for sharing by offering the world a set of licenses at no charge. The single goal of Creative Commons's current and future projects is to “build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules”.
Creative Commons's first project, in 2002, was the release of a set of copyright licenses free for public use. The Creative Common licenses are intended to permit creators of copyrighted works to ensure that their copyrighted works are free for sharing -- but only on certain conditions (that are less restrictive than typical copyright laws provide for). Creative Commons says: “For example, if you don't mind people copying and distributing your online photograph so long as they give you credit, we'll have a license that helps you say so. If you want the world to copy your band's MP3 but don't want them to profit off it without asking, you can use one of our licenses to express that preference.” The Creative Commons licensing approach provides creators with licensing tools to mix and match such preferences from a menu of options to yield 11 types of licenses[68]:
Attribution. Permit others to copy, distribute, display, and perform the work and derivative works based upon it only if they give you credit.
Non-commercial. Permit others to copy, distribute, display, and perform the work and derivative works based upon it only for non-commercial purposes.
No Derivative Works. Permit others to copy, distribute, display and perform only verbatim copies of the work, not derivative works based upon it.
Share Alike. Permit others to distribute derivative works only under a license identical to the license that governs your work.
Once a creator has selected from the menu of choices, the appropriate license is expressed in three ways:
1. Commons Deed. A simple, plain-language summary of the license, complete with the relevant icons.
2. Legal Code. The fine print legal terms to be sure the license will stand up in court.
3. Digital Code. A machine-readable translation of the license that helps search engines and other applications identify the work by its terms of use.
Although Creative Commons licenses sound suspiciously like open source software licenses, these licenses are not intended for or written for software and, according to Creative Commons, they should not be used for software [69] and Creative Commons does not plan to get involved in software licensing at all. Instead, the focus of Creative Commons is on other kinds of creative works such as websites, scholarship, music, film, photography, literature, courseware and other kinds of creative works.
In
addition to the release of the Creative Commons licenses, Creative Commons also
created technology to make its licenses machine readable, by developed metadata that can be used to
associate creative works with their public domain or license status, thus
allowing online search engines to provide rapid access to the more than 10
million creations distributed under Creative Commons licenses.
Other Creative
Commons Activities
Creative Commons will also help creators, if asked, to disclaim all ownership (i.e. tools for disclaiming all copyright for people who want to dedicate their work to the public domain).
Creative Commons operates (or plans to operate) the Creative Commons Conservancy, a sort of "land trust" for intellectual works whereby it will acquire or receive donations of works that it will then hold out for widespread public access while safeguarding against exploitive uses.
Creative Commons
in
Legal Issues
While beyond the scope of this paper, Creative Commons licenses may be subject to many of the same legal issues, uncertainties and concerns that have been discussed above in the context of open source software licenses. Therefore, in looking to the use of Creative Commons licenses for the protection of their creative works, developers of such creative works need to inform themselves not only with respect to the potential benefits of such licenses, but also the legal and commercial risks and uncertainties that can be raised by using them.
SCHEDULE A
OPEN SOURCE LICENSES
APPENDIX 1 - GNU General Public License
Version 2, June 1991
Copyright (C) 1989, 1991 Free Software Foundation, Inc. 59 Temple Place - Suite 330, Boston, MA 02111-1307, USA
Everyone is permitted to copy and distribute verbatim copiesof this license document, but changing it is not allowed.
The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. This General Public License applies to most of the Free Software Foundation's software and to any other program whose authors commit to using it. (Some other Free Software Foundation software is covered by the GNU Library General Public License instead.) You can apply it to your programs, too.
When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things.
To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.
For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.
We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software.
Also, for each author's protection and ours, we want to make certain that everyone understands that there is no warranty for this free software. If the software is modified by someone else and passed on, we want its recipients to know that what they have is not the original, so that any problems introduced by others will not reflect on the original authors' reputations.
Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.
The precise terms and conditions for copying, distribution and modification follow.
0. This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.
1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program.
You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.
2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:
a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.)
These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.
Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.
In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.
3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:
a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)
The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable.
If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code.
4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.
It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.
This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License.
8. If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License.
9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
10. If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software which is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally.
NO WARRANTY
11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
END OF TERMS AND CONDITIONS
Copyright (c) <YEAR>, <OWNER>
All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
Neither the name of the <ORGANIZATION> nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
1.0.1. "Commercial Use"
means distribution or otherwise making the
Covered Code available to a third party.
1.1. "Contributor"
means each entity that creates or
contributes to the creation of Modifications.
1.2. "Contributor Version"
means the combination of the Original
Code, prior Modifications used by a Contributor, and the Modifications made by
that particular Contributor.
1.3. "Covered Code"
means the Original Code or Modifications
or the combination of the Original Code and Modifications, in each case
including portions thereof.
1.4. "Electronic Distribution
Mechanism"
means a mechanism generally accepted in
the software development community for the electronic transfer of data.
1.5. "Executable"
means Covered Code in any form other than
Source Code.
1.6. "Initial Developer"
means the individual or entity identified
as the Initial Developer in the Source Code notice required by Exhibit A.
1.7. "Larger Work"
means a work which combines Covered Code
or portions thereof with code not governed by the terms of this License.
1.8. "License"
means this document.
1.8.1. "Licensable"
means having the right to grant, to the
maximum extent possible, whether at the time of the initial grant or
subsequently acquired, any and all of the rights conveyed herein.
1.9. "Modifications"
means any addition to or deletion from the
substance or structure of either the Original Code or any previous
Modifications. When Covered Code is released as a series of files, a
Modification is:
a.
Any addition
to or deletion from the contents of a file containing Original Code or previous
Modifications.
b.
Any new file
that contains any part of the Original Code or previous Modifications.
1.10. "Original Code"
means Source Code of computer software
code which is described in the Source Code notice required by Exhibit A as Original Code, and which, at
the time of its release under this License is not already Covered Code governed
by this License.
1.10.1. "Patent Claims"
means any patent claim(s), now owned or
hereafter acquired, including without limitation, method, process, and
apparatus claims, in any patent Licensable by grantor.
1.11. "Source Code"
means the preferred form of the Covered
Code for making modifications to it, including all modules it contains, plus
any associated interface definition files, scripts used to control compilation
and installation of an Executable, or source code differential comparisons
against either the Original Code or another well known, available Covered Code
of the Contributor's choice. The Source Code can be in a compressed or archival
form, provided the appropriate decompression or de-archiving software is widely
available for no charge.
1.12. "You" (or
"Your")
means an individual or a legal entity
exercising rights under, and complying with all of the terms of, this License
or a future version of this License issued under Section 6.1. For legal entities,
"You" includes any entity which controls, is controlled by, or is
under common control with You. For purposes of this definition,
"control" means (a) the power, direct or indirect, to cause the
direction or management of such entity, whether by contract or otherwise, or
(b) ownership of more than fifty percent (50%) of the outstanding shares or
beneficial ownership of such entity.
The Initial Developer hereby grants You a
world-wide, royalty-free, non-exclusive license, subject to third party
intellectual property claims:
Subject to third party intellectual
property claims, each Contributor hereby grants You a world-wide, royalty-free,
non-exclusive license
The Modifications which You create or to
which You contribute are governed by the terms of this License, including
without limitation Section 2.2. The Source Code version of Covered
Code may be distributed only under the terms of this License or a future
version of this License released under Section 6.1, and You must include a copy of this
License with every copy of the Source Code You distribute. You may not offer or
impose any terms on any Source Code version that alters or restricts the
applicable version of this License or the recipients' rights hereunder.
However, You may include an additional document offering the additional rights
described in Section 3.5.
Any Modification which You create or to
which You contribute must be made available in Source Code form under the terms
of this License either on the same media as an Executable version or via an
accepted Electronic Distribution Mechanism to anyone to whom you made an
Executable version available; and if made available via Electronic Distribution
Mechanism, must remain available for at least twelve (12) months after the date
it initially became available, or at least six (6) months after a subsequent
version of that particular Modification has been made available to such
recipients. You are responsible for ensuring that the Source Code version
remains available even if the Electronic Distribution Mechanism is maintained
by a third party.
You must cause all Covered Code to which
You contribute to contain a file documenting the changes You made to create
that Covered Code and the date of any change. You must include a prominent
statement that the Modification is derived, directly or indirectly, from
Original Code provided by the Initial Developer and including the name of the
Initial Developer in (a) the Source Code, and (b) in any notice in an
Executable version or related documentation in which You describe the origin or
ownership of the Covered Code.
If Contributor has knowledge that a
license under a third party's intellectual property rights is required to
exercise the rights granted by such Contributor under Sections 2.1 or 2.2, Contributor must include a text file
with the Source Code distribution titled "LEGAL" which describes the
claim and the party making the claim in sufficient detail that a recipient will
know whom to contact. If Contributor obtains such knowledge after the
Modification is made available as described in Section 3.2, Contributor shall promptly modify the
LEGAL file in all copies Contributor makes available thereafter and shall take
other steps (such as notifying appropriate mailing lists or newsgroups)
reasonably calculated to inform those who received the Covered Code that new
knowledge has been obtained.
If Contributor's Modifications include an
application programming interface and Contributor has knowledge of patent
licenses which are reasonably necessary to implement that API, Contributor must
also include this information in the legal
file.
Contributor represents that, except as
disclosed pursuant to Section 3.4 (a) above, Contributor believes that Contributor's
Modifications are Contributor's original creation(s) and/or Contributor has
sufficient rights to grant the rights conveyed by this License.
You must duplicate the notice in Exhibit A in each file of the Source Code.
If it is not possible to put such notice in a particular Source Code file due
to its structure, then You must include such notice in a location (such as a
relevant directory) where a user would be likely to look for such a notice. If
You created one or more Modification(s) You may add your name as a Contributor
to the notice described in Exhibit A. You must also duplicate this
License in any documentation for the Source Code where You describe recipients'
rights or ownership rights relating to Covered Code. You may choose to offer,
and to charge a fee for, warranty, support, indemnity or liability obligations
to one or more recipients of Covered Code. However, You may do so only on Your
own behalf, and not on behalf of the Initial Developer or any Contributor. You
must make it absolutely clear than any such warranty, support, indemnity or
liability obligation is offered by You alone, and You hereby agree to indemnify
the Initial Developer and every Contributor for any liability incurred by the
Initial Developer or such Contributor as a result of warranty, support,
indemnity or liability terms You offer.
You may distribute Covered Code in
Executable form only if the requirements of Sections 3.1, 3.2, 3.3, 3.4 and 3.5 have been met for that Covered Code,
and if You include a notice stating that the Source Code version of the Covered
Code is available under the terms of this License, including a description of
how and where You have fulfilled the obligations of Section 3.2. The notice must be conspicuously
included in any notice in an Executable version, related documentation or
collateral in which You describe recipients' rights relating to the Covered
Code. You may distribute the Executable version of Covered Code or ownership
rights under a license of Your choice, which may contain terms different from
this License, provided that You are in compliance with the terms of this
License and that the license for the Executable version does not attempt to
limit or alter the recipient's rights in the Source Code version from the
rights set forth in this License. If You distribute the Executable version
under a different license You must make it absolutely clear that any terms
which differ from this License are offered by You alone, not by the Initial
Developer or any Contributor. You hereby agree to indemnify the Initial
Developer and every Contributor for any liability incurred by the Initial
Developer or such Contributor as a result of any such terms You offer.
You may create a Larger Work by combining
Covered Code with other code not governed by the terms of this License and
distribute the Larger Work as a single product. In such a case, You must make
sure the requirements of this License are fulfilled for the Covered Code.
If it is impossible for You to comply with
any of the terms of this License with respect to some or all of the Covered
Code due to statute, judicial order, or regulation then You must: (a) comply
with the terms of this License to the maximum extent possible; and (b) describe
the limitations and the code they affect. Such description must be included in
the legal file
described in Section 3.4 and must be included with all
distributions of the Source Code. Except to the extent prohibited by statute or
regulation, such description must be sufficiently detailed for a recipient of
ordinary skill to be able to understand it.
This License applies to code to which the
Initial Developer has attached the notice in Exhibit A and to related Covered Code.
Netscape Communications Corporation
("Netscape") may publish revised and/or new versions of the License
from time to time. Each version will be given a distinguishing version number.
Once Covered Code has been published under
a particular version of the License, You may always continue to use it under
the terms of that version. You may also choose to use such Covered Code under
the terms of any subsequent version of the License published by Netscape. No
one other than Netscape has the right to modify the terms applicable to Covered
Code created under this License.
If You create or use a modified version of
this License (which you may only do in order to apply it to code which is not
already Covered Code governed by this License), You must (a) rename Your
license so that the phrases "Mozilla", "MOZILLAPL",
"MOZPL", "Netscape", "MPL", "NPL" or
any confusingly similar phrase do not appear in your license (except to note
that your license differs from this License) and (b) otherwise make it clear
that Your version of the license contains terms which differ from the Mozilla
Public License and Netscape Public License. (Filling in the name of the Initial
Developer, Original Code or Contributor in the notice described in Exhibit A shall not of themselves be deemed
to be modifications of this License.)
Covered code is
provided under this license on an "as is" basis, without warranty of
any kind, either expressed or implied, including, without limitation,
warranties that the covered code is free of defects, merchantable, fit for a
particular purpose or non-infringing. The entire risk as to the quality and
performance of the covered code is with you. Should any covered code prove
defective in any respect, you (not the initial developer or any other
contributor) assume the cost of any necessary servicing, repair or correction.
This disclaimer of warranty constitutes an essential part of this license. No
use of any covered code is authorized hereunder except under this disclaimer.
8.1. This License and the rights granted
hereunder will terminate automatically if You fail to comply with terms herein
and fail to cure such breach within 30 days of becoming aware of the breach.
All sublicenses to the Covered Code which are properly granted shall survive
any termination of this License. Provisions which, by their nature, must remain
in effect beyond the termination of this License shall survive.
8.2. If You initiate li
8.3. If You assert a patent infringement
claim against Participant alleging that such Participant's Contributor Version
directly or indirectly infringes any patent where such claim is resolved (such
as by license or settlement) prior to the initiation of patent infringement li
8.4. In the event of termination under
Sections 8.1 or 8.2 above, all end user license agreements
(excluding distributors and resellers) which have been validly granted by You
or any distributor hereunder prior to termination shall survive termination.
Under no
circumstances and under no legal theory, whether tort (including negligence),
contract, or otherwise, shall you, the initial developer, any other
contributor, or any distributor of covered code, or any supplier of any of such
parties, be liable to any person for any indirect, special, incidental, or
consequential damages of any character including, without limitation, damages
for loss of goodwill, work stoppage, computer failure or malfunction, or any
and all other commercial damages or losses, even if such party shall have been
informed of the possibility of such damages. This limitation of liability shall
not apply to liability for death or personal injury resulting from such party's
negligence to the extent applicable law prohibits such limitation. Some
jurisdictions do not allow the exclusion or limitation of incidental or
consequential damages, so this exclusion and limitation may not apply to you.
The Covered Code is a "commercial
item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting
of "commercial computer software" and "commercial computer
software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept.
1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Code with
only those rights set forth herein.
This License represents the complete
agreement concerning subject matter hereof. If any provision of this License is
held to be unenforceable, such provision shall be reformed only to the extent
necessary to make it enforceable. This License shall be governed by California
law provisions (except to the extent applicable law, if any, provides
otherwise), excluding its conflict-of-law provisions. With respect to disputes
in which at least one party is a citizen of, or an entity chartered or registered
to do business in the United States of America, any li
As between Initial Developer and the
Contributors, each party is responsible for claims and damages arising,
directly or indirectly, out of its utilization of rights under this License and
You agree to work with Initial Developer and Contributors to distribute such
responsibility on an equitable basis. Nothing herein is intended or shall be
deemed to constitute any admission of liability.
Initial Developer may designate portions
of the Covered Code as "Multiple-Licensed".
"Multiple-Licensed" means that the Initial Developer permits you to
utilize portions of the Covered Code under Your choice of the MPL or the
alternative licenses, if any, specified by the Initial Developer in the file
described in Exhibit A.
SCHEDULE B
SELECTED OPEN SOURCE RESOURCES
www.opensource.org Open
Source Initiative
www.gnu.org The GNU Project Web Server
http://creativecommons.org Creative Commons
http://creativecommons.org/worldwide/ca/ Creative Commons
http://www.fsf.org Free Software Foundation
http://www.fsfeurope.org Free
Software Foundation
http://cyberlaw.stanford.edu Stanford Law School Center for Internet and Society
http://cyber.law.harvard.edu/home The Berkman Center for Internet and Society at Harvard Law School.
www.linuxmark.org
The
Linux Mark Institute
http://osdir.com/ Open Source and Linux News & Software
http://lwn.net/ Development Community information
http://www.oreilly.com/ The O’Reilly Network
[1] The assistance of
[2]
[3] The question of “why” is as much a political question as it is a business or legal question. What are the benefits and advantageous of open source software versus traditional propriety “closed” code software? It is beyond the scope of this paper. For a full discussion see “The Cathedral and the Bazaar” by Eric S. Raymond at http://www.catb.org/~esr/writings/cathedral-bazaar/; the various “cases for” open source discussions at www.opensource.org; and Alana Maurushat, “Open Source, Open Arms: An Open-Ended Question, Canadian Journal of Law and Technology, vol. 1 No. 3 November 2002 at 48.
[4]According to the
Open Source Initiative: “The Internet is full of open-source software in heavy
commercial use. You might say, without open source, there would be no
Internet.” Open source software is heavily utilized in operating systems (for
example, Linux), Internet programming (for example, Apache for web servers /
OpenSSL for secure communications / Mozilla / sendmail) and more generally in
programming tools (such as Perl and PHP). Developer tools are especially well
represented, because without open source programming tools, open source software
would require proprietary tools to build and maintain it. There are literally
hundreds of thousands of popular open source packages, covering every
imaginable category of software.
[5] “Open source” in this paper generally refers to an approach to software development, distribution and use: a community or network of independent software developers and users who share a common goal of making the source code freely available to all and with a right of further modification.
[6] There are numerous papers, articles and books that trace the
history of the open source movement. For an extensive list of resources see http://molly.open.ac.uk/opensource
[7] R.S.C. 1985, c. C-42 [hereinafter Copyright Act].
[8] P. Samuelson, “CONTU Revisited : The Case Against Copyright Protection For Computer Programs In Machine-Readable Form” 1984 Duke L.J. 663 at 677. Strictly speaking microcode is a program. Because it serves as a substitute for certain elements of the hardware circuitry, however, it is considered a more integral part of the machine hardware than is software and hence is sometimes referred to as “firmware”.
[9] This allows software engineers to write applications without the necessity of including the code in their application to accomplish the routine task. The software engineer will “call” the routine and the operating system will take over and perform the required task.
[10] Examples of application programs are word-processing (such as Microsoft Word), spreadsheet (such as Microsoft Excel) or database programs (such as Oracle database products).
[11] Machine code consists of long strings of binary digits (ones and zeros). Each string is an instruction, which causes the computer to execute a particular function.
[12] In addition to the actual coding statements, source code often contains the programmers notes and comments that can be useful in understanding how the software has been designed and functions.
[13] Except, perhaps, through a process of “reverse engineering”. The term reverse engineering can be defined as “a process starting with the known product and working backwards to define the process which aided in its development or manufacture”. With respect to software, reverse engineering essentially refers to an analysis and deconstruction of an existing computer program in an effort to determine how it operates. The reverse engineering of a computer program is accomplished primarily by a process known as disassembly. The disassembly process involves the translation of the machine or object code of the program into an assembly-language format which is human - understandable. The legality of reverse engineering under Canadian law is questionable.
[14] Most commercial software licensing arrangements with end users do not include a copy of the source code; source code is considered to be the confidential trade secret of the licensor. A large portion of a commercial software providers’ revenues are usually derived from software support and maintenance contracts with their licensees as well as incremental license revenues that are attributed to the continued creation of new functions and features that their customers must pay extra for.
[15] Copyright has become the primary source of protection for computer
software in
[16] In other words, the exclusive rights and protections afforded under copyright law to the commercial developers of software are a fair exchange in order to provide an incentive to the commercial developer to create software products that will be of benefit to society.
[17] See the Open Source Initiative at www.opensource.org. “The basic idea behind open source is very simple: When programmers can read, redistribute, and modify the source code for a piece of software, the software evolves. People improve it, people adapt it, people fix bugs. And this can happen at a speed that, if one is used to the slow pace of conventional software development, seems astonishing. We in the open source community have learned that this rapid evolutionary process produces better software than the traditional closed model, in which only a very few programmers can see the source and everybody else must blindly use an opaque block of bits.”
[18] What open source is not: It is not “public domain” software. Public domain software is software in which the author(s) have given up their copyright (or it has otherwise expired); since there is no copyright, there is no “owner” to grant licenses and therefore anyone may use it in any way without restrictions. In contrast, the creators to open source software have not surrendered their copyright; such software remains subject to copyright.
[19] The Open Source Initiative (OSI) is a non-profit corporation dedicated to managing and promoting the Open Source Definition for the good of the community, specifically through the OSI Certified Open Source Software certification mark and program. See www.opensource.org for more.
[20] Copyright © 2005 by the Open Source Initiative. www.opensource.org. The indented, italicized sections appear as annotations to the Open Source Definition (OSD) and are not a part of the OSD.
[21] “GPL” means the General Public License; “LGPL” means the Lesser General Public License; “BSD” means the Berkley System Distribution License; and MIT” means the “MIT license.
[22] The requirement to make source code available; users have a right to use the source code to make new works; a general disclaimer of warranties; and often an attempt to limit liability.
[23] See Schedule A for a full reproduction of the licenses discussed.
[24] “Free as in free speech, not free beer”. In other words, the freedom to do certain things that traditional, proprietary licensing models do not allow. Three essential freedoms being: the right to distribute; the right to get source code; and the right modify”.
[25] Stallman famously called the GPL a “copyleft” license – because in his view it leaves the right to copy in place and prevents the users from adding restrictions of their own to modified code. For a more detailed description of what is meant by “copyleft” see www.gnu.org.
[26] FSF, GNU General Public
License, Preamble, at http://www.gnu.org/copyleft/gpl.html
(last visited
[27] The UNIX operating system is an operating system originally developed by AT&T.
[28] See the full story at “The History of the OSI” at http://opensource.usrbinruby.net/docs/history.php.
[29] See Schedule A below for the terms of the GPL, BSD, and Mozilla licenses.
[30]
[32] According to a Forrester Research report from a study of fifty IT managers at U.S. companies worth U.S. $1 Billion or more, the three top benefits open source offers are low cost, choice and quality (software) – in that order. Forrester Research also reported earlier this year that about 60 percent of companies have installed or will install some form of open-source software by the end of this year.
[33] The largest software companies, including IBM, Sun Microsystems,
Oracle and Hewlett-Packard, all offer open source products and are continuing
to raise their stakes in open source. IBM, for example, is widely reported to
now invest millions and employ about 1,000 people in open-source projects. Most
are adopting a hybrid strategy. While they still sell software the traditional
way (using a license to govern applications written and controlled by them)
they are also making certain products available in open source form. Because
open-source development has become so prevalent--there are an estimated 1.1
million open-source developers working at least part time in
[34] Frank Hecker, “Setting Up Shop: The Business of Open Source Software” at www.hecker.org/writings. See this article for a comprehensive description of how these various models might function.
[35] “Open source reshaping services market” By Martin LaMonica, Staff Writer, CNET News.com Published:
[36] See Robert Young’s article “Giving It Away: How Red Hat Software Stumbled Across a New Economic Model and Helped Improve an Industry” at http://www.oreilly.com/catalog/opensources/book/young.html.
[37] Supra Note 7 , Section 2.
[38] Supra note 3 (Maurushat) at 44.
[39] There have been some attempts to centralize ownership in a single person such as the Free Software Foundation in the case of the GPL.
[40] This is true under the Copyright Act and in the
[41] Simply trying to keep track of which licenses may apply to particular open source software can become a very difficult undertaking; particularly if developers mix code in the same program that are subject to different open source licenses.
[42] Complaint filed
March 2003 in the Third Judicial District of Salt lake County, State of
[43] See http://sco.iwethey.org for background information and current updates concerning the suit.
[44] Shrinkwrap licence: Typically a printed
software licence upon which the terms of usage of the software are set out.
Such license is distributed together with the applicable software in or on the
packaging. A notice is printed on the packaging advising the prospective user
that upon opening the package or envelope, he or she accepts the terms of the
licence and agrees to be bound thereby.
[45] The only Canadian decision which has considered
the issue is North American Systemshops v. King. In that case the court was not
prepared to enforce the terms of a shrinkwrap licence against a purchaser of a
copy of the shrinkwrap software unless there was some clear communication of
the licence terms to the purchaser-licensee at the time the software was
acquired. Some
[46] For a more general discussion on the enforceability of software
licenses, see R.L. Percival “Creating Enforceable Electronic Contracts”,
presented at The Fourth Annual IT Law Spring Training Program: Legal &
Business Issues For IT Transactions Doing Business On The Net (And Getting It
Right)
[47] Due to a lack of Canadian judicial direction on this issue as noted above. Other considerations can also affect the formation and enforceability of contracts, such as: capacity to contract; writing requirements; signature requirements; record keeping; and the absence of terms that are unconscionable or greatly unfair.
[48] Query, for example, whether a provision that purports to exclude any liability under a license when coupled with the lack of a severability provision could lead to a court concluding that the entire license was unenforceable? What about an absolute disclaimer of warranties in the consumer context?
[49] Preliminary
Injunction:
[50] In a very recent development Harald Welte
was successful again in obtaining a preliminary injunction from a German court
in barring Fortinet, a
[51] Often the traditional software players, that have not embraced open
source emphasize this point. For example, in connection with the recent
LinuxWorld trade show in
[52] The NCCUSL consists of an appointed commissioner from each
[53] See http://www.affect.ucita.com for information on UCITA and specifically anti UCITA efforts. See also http://www.ala.org.
[54] See
[55] Given that the UCITA was adopted in
[56] Many of the established open source projects have established formal trade-mark use policies. Linux is a registered trade-mark owned by Linus Torvalds and is policed by the Linux Mark Institute: see www.linuxmark.org “Red Hat” is a registered trademark of Red Hat and identifies its products as “Red Hat Linux”. See http://www.redhat.com/about/corporate/trademark/
[57] The OSI has also obtained a certification mark for the term “OSI Certified” to denote open source software that complies with the OSI Open Source Definition.
[58] See Heather Meeker’s recent article “i-Technology Viewpoint: Mark
My Words – Trademarks and Open Source”,
[59] For example, Microsoft holds 6130 patents as of January, 2005. Microsoft’s patenting efforts are accelerating with 3000 new patents expected to be filed by the company this year (See http://www.uspto.gov/patft)
[60] Recent events have drawn attention to the intersecting realms of
patents and open-source software. IBM has donated 500 patents for use in
open-source software (see “Open-source honchos trash software patents”,
News.com, Published:
[61] Which is of course, of primary concern to the open source industry.
For a discussion that sets out the various arguments against software patents,
see Jason V. Morgan, “Chaining Open Source Software: The Case Against Software
Patents” at http://lpf.ai.mit.edu/Patents/chaining-oss.html
(last accessed
[62] This is done for several reasons. For example, there are a number of utility programs that are both commonly used to perform certain functions and that may not be core to the software that being developed that do not need to be recreated (i.e. no need to “recreate the wheel”). A related reason is cost containment. It can be much more cost effective, particularly for a smaller start-up to license in independent software modules as the building blocks for its own software product – access to the source code makes this an extremely attractive method of software development.
[63] See H.J. Meeker. “Buying the Penguin: Open Source Acquisitions”, The Computer Law association Bulletin, 53/ Vol. 18, No. 2, 2003 at 53.
[64] Similar to the GPL, but less strict in their application to derivative works are the GNU Library GPL, the BSD-Style License, the Mozilla Public License, Berkely Software Distribution License, and Alladin License, among others.
[65] The related question of whether other software programs that interact or interface with GPL software would also be tainted and fall under the GPL lead to the development of the Lesser GPL (or LGPL). The LGPL allows closed, proprietary software to be used in connection with GPL software through the use of software libraries without requiring that such closed software become subject to the GPL.
[66] The content in this Section is largely derived or obtained from the Creative Commons web site at www.creativecommons.org
[67] Creative Commons was founded by Cyberlaw and intellectual property
experts James Boyle, Michael Carroll, and Lawrence Lessig, MIT computer science
professor Hal Abelson, lawyer-turned-documentary filmmaker-turned-cyberlaw
expert Eric Saltzman, and public domain Web publisher Eric Eldred. Fellows and
students at the
[68] With the cc-ca licence, there are six possible licences each of which reserves a different subset of copyright(s). The appropriate licence is generated on a creator's response to the following two questions: (1) Do you want to restrict commercial uses of your work, i.e. permit others to copy, distribute, display, and perform the work and derivative works based upon it only for non-commercial purposes? (2) Do you want to allow modifications of your work? Yes, i.e. permit others to create derivative works. Yes, as long as others share alike, i.e. permit others to distribute derivative works only under a licence identical to the licence that governs your work. No, i.e. permit others to copy, distribute, display and perform only verbatim copies of the work, not derivative works based upon it.
[69] The creation of Creative Commons was inspired by open source software licenses. Creative Commons strongly encourages software developers to use one of the software licenses available today stating that “The Free Software Foundation or the Open Source Initiative stand out as resources for such licenses. Unlike our licenses -- which do not make mention of source or object code -- these existing licenses were designed specifically for use with software.”
[71] See the Canadian Creative Commons web site at http://www.creativecommons.ca for an explanation of the substantive legal changes that were made (a blackline is provided) to the original Creative Commons license.