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Open Source Licensing: Software Freedom and Intellectual Property Law

Overview

“I have studied Rosen’s book in detail and am impressed with its scope and content. I strongly recommend it to anybody interested in the current controversies surrounding open source licensing.”
—John Terpstra, Samba.org; cofounder, Samba-Team
“Linux and open source software have forever altered the computing landscape. The important conversations no longer revolve around the technology but rather the business and legal issues. Rosen’s book is ...
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Overview

“I have studied Rosen’s book in detail and am impressed with its scope and content. I strongly recommend it to anybody interested in the current controversies surrounding open source licensing.”
—John Terpstra, Samba.org; cofounder, Samba-Team
“Linux and open source software have forever altered the computing landscape. The important conversations no longer revolve around the technology but rather the business and legal issues. Rosen’s book is must reading for anyone using or providing open source solutions.”
—Stuart Open Source Development Labs

A Complete Guide to the Law of Open Source for Developers, Managers, and Lawyers

Now that open source software is blossoming around the world, it is crucial to understand how open source licenses work—and their solid legal foundations. Open Source Initiative general counsel Lawrence Rosen presents a plain-English guide to open source law for developers, managers, users, and lawyers. Rosen clearly explains the intellectual property laws that support open source licensing, carefully reviews today’s leading licenses, and helps you make the best choices for your project or organization. Coverage includes:

  • Explanation of why the SCO litigation and other attacks won’t derail open source
  • Dispelling the myths of open source licensing
  • Intellectual property law for nonlawyers: ownership and licensing of copyrights, patents, and trademarks
  • “Academic licenses”: BSD, MIT, Apache, and beyond
  • The “reciprocal bargain” at the heart of the GPL
  • Alternative licenses: Mozilla, CPL, OSL and AFL
  • Benefits of open source, and the obligations and risks facing businesses that deploy open source software
  • Choosing the right license: considering business models, product architecture, IP ownership,
  • license compatibility issues, relicensing, and more
  • Enforcing the terms and conditions of open source licenses
  • Shared source, eventual source, and other alternative models to open source
  • Protecting yourself against lawsuits
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Editorial Reviews

From The Critics
Lawrence Rosen, a hacker turned lawyer, has stepped forward with a deep and important exploration of the law. Curious programmers will enjoy it, but it's indispensable for businesses trying to honor the rules while still closing off some of their code.
Slashdot.org
Lawrence Rosen, a hacker turned lawyer, has stepped forward with a deep and important exploration of the law. Curious programmers will enjoy it, but it's indispensable for businesses trying to honor the rules while still closing off some of their code.
Read More Show Less

Product Details

  • ISBN-13: 9780131487871
  • Publisher: Prentice Hall
  • Publication date: 7/22/2004
  • Pages: 432
  • Sales rank: 1,466,584
  • Product dimensions: 5.80 (w) x 8.70 (h) x 0.90 (d)

Meet the Author

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

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Read an Excerpt

In February 1989, Richard Stallman first released his GNU project software for UNIX under version 1.0 of the GNU General Public License (GPL). In June of that same year, Bill Joy first released a free version of UNIX software under the University of California’s Berkeley Software Distribution (BSD) license. These relatively quiet events signaled a new era in software licensing. Almost imperceptibly at first, but with increasing speed and energy, this licensing revolution, now widely referred to as open source, spread around the world.

By the first year of this century, approximately 17,000 open source projects were active on the SourceForge servers (www.sourceforge.net). Four years later there are over 74,000 such projects and more than 775,000 registered SourceForge users. The majority of that open source software is currently licensed under the GPL or BSD licenses; the rest use one of about fifty other licenses based on the same open source principles.

Open source is now dominating many of the market conversations in the software industry. While software companies continue to release valuable and high-quality products under proprietary licenses, most are also embracing open source product development and distribution models as well as the software licenses that make those models possible.

This book is about the law but it is not written for lawyers. You will not find citations to case law or rigorous academic analyses suitable for publication in a law journal. This book is written for my friends in the open source community who write and distribute software and who are confused about which licenses to use. It is also written for our customers who are concerned about how software licenses may affect them and their businesses. It seeks to dispel myths and fears about open source software licensing and to explain the legal context in which open source software exists.

Open source is built upon a foundation of intellectual property law, particularly copyright law. Open source software is owned by its authors, who license it to the public under generous terms. Open source licenses do not seek to destroy or steal intellectual property. The first chapters of this book explain the intellectual property laws that make open source licensing possible.

The following chapter describes the first broad category of open source licenses, what I call academic licenses to acknowledge their heritage in universities. These academic licenses allow software to be used, copied, modified, and distributed, even with proprietary software—and their source code is included. These licensors generously donate their software to the public for use by anyone.

The GPL—and the MPL, CPL, and OSL licenses that followed it—strike what I call a reciprocal bargain. Licensor and licensees share a public commons of open source software, but any modifications to that software must be distributed under the same license. These four licenses are much more complex than the academic licenses and so I devote a chapter to each of them.

Choosing a license to apply to your open source software is not an easy decision and so I devote an entire chapter to it. The answer depends intricately upon your business model, on your software and product architecture, and on understanding who owns the intellectual property in your products. If you expect a checklist method to select a license, don’t bother reading this chapter; it cannot be so easy.

Eventually, a licensor or licensee may need to enforce the terms and conditions of an open source license. I devote an entire chapter to satisfying the curiosity of those who may want to sue—or who are afraid of being sued—under an open source license.

Finally, I begin to address a potentially bigger issue than open source. Open standards are really the battlefield on which we will determine whether software can truly be free and open. That topic deserves a book of its own someday; this isn’t it, but I’m making a start.

Turning a software license into interesting reading is probably an insurmountable challenge. There is no other way than reading the words of a license to understand what it means. And so, for those of you who won’t actually plod your way through the detailed explanations of licenses herein, I want to give you the conclusion.

As a user of open source software you may go forth and live free. None of the licenses in this book restrict in any way your use of open source software.

But if you are more directly involved in the creation, modification, or distribution of software, or if you manage or advise the in-licensing of software into your company, you should at the very least consult your attorney to make sure you don’t commit to more than you’re willing to deliver. This book may help you ask your attorney the right questions.

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Table of Contents

Foreword xv
Preamble xix

Chapter 1: Freedom and Open Source 1

The Language of Freedom 1
Defining Open Source 2
Open Source Principles 8

Chapter 2: Intellectual Property 13

Dominion Over Property 13
Right Brain and Left Brain 15
Acquiring Copyrights and Patents 17
Original Works of Authorship 19
Works Made for Hire 20
Exclusive Rights of Copyright and Patent Owners 22
Copies 24
Exceptions to the Exclusive Right to Make Copies 25
Collective and Derivative Works 26
The Chain of Title for Copyright 28
The Chain of Title for Patents 30
Joint Works 32
Assigning Ownership 33
Duration of Copyright and Patent 36
Trademarks 37
Exceptions to Intellectual Property Protection 39

Chapter 3: Distribution of Software 41

Contributors and Distributors 41
Distribution 42
Open Source Collaboration 43
Contributor Agreements 45
What About Users? 49

Chapter 4: Taxonomy of Licenses 51

What Is a License? 51
Bare Licenses 53
Licenses as Contracts 57
Patent Licenses 66
Template Licenses 68
Types of Open Source Licenses 69

Chapter 5: Academic Licenses 73

The BSD Gift of Freedom 73
BSD License as Template 77
The BSD License Grant 77
Source and Binary Forms of Code 79
Conditions under the BSD 80
Warranty and Liability Disclaimer 83
The MIT License 85
The Right to Sublicense 87
The Warranty of Noninfringement 89
The Apache License 91
Protecting Trademarks 92
The Apache Contributor License Agreement 93
The Artistic License 95
License Preambles 96
When Amateurs Write Licenses 97
Big Picture of Academic Licenses 101
Apache License Version 2.0 102

Chapter 6: Reciprocity and the GPL 103

The GPL Bargain 103
Copyleft and Reciprocity 105
Policy Objectives 107
The Preamble to the GPL 109
GPL as Template 112
The GPL Applies to Programs 113
Linking to GPL Software 115
Copyright Law and Linking 119
The LGPL Alternative 121
GPL Grant of License 125
Access to Source Code 128
“At No Charge” 131
Other Obligations in the GPL 133
The GPL and Patents 134
Accepting the GPL 136

Chapter 7: The Mozilla Public License (MPL) 141

The Mozilla Story 141
The MPL Reciprocity Bargain 143
Contributors and Modifications 145
The MPL and Patents 147
Defending Against Patents 154
Other Important MPL License Provisions 156
Other Corporate Licenses 159

Chapter 8: The Common Public License (CPL) 161

CPL as a Template 161
A Digression about Well-Written Licenses 162
Grant of Copyright and Patent Licenses 163
Reciprocity under the CPL 167
Exception to Reciprocity 168
Patent Defense 170
Defend and Indemnify 173
Ownership of the CPL License 176

Chapter 9: The OSL and the AFL 179

Academic or Reciprocal? 179
Initial Paragraph of OSL/AFL 182
Copyright and Licensing Notice 225

Chapter 10: Choosing an Open Source License 229

How Licenses Are Chosen 229
The Free-Rider Problem 230
Making Money from Open Source 231
In-Licensing 232
Out-Licensing 235
Contributions to Projects 238
License Compatibility for Collective Works 241
License Compatibility for Derivative Works 243
Relicensing 252

Chapter 11: Shared Source, Eventual Source, and Other Licensing Models 255

Alternatives to Open Source 255
Shared Source 256
Public Source 259
Dual and Multiple Licensing 262
Eventual Source and Scheduled Licensing 264
Combining Licensing Models 267

Chapter 12: Open Source Litigation 269

Owning a Cause of Action 269
Damages 271
Injunctions 274
Standing to Sue 276
Burden of Proof 277
Enforcing the Terms of a Contract 280
Disputes over Ownership of Intellectual Property 283
Disputes over Derivative Works 284
Patent Infringement Litigation 289
SCO vs. Open Source 290

Chapter 13: Open Standards 295

Defining Open Standards 295
Open Specifications 296
Enforcing the Standard by Copyright Restrictions 298
Licensing the Test Suite: The Open Group License 299
Discouraging Forks: Sun’s SISSL 301
Patents on Open Standards 303
Reasonable and Nondiscriminatory 304
Royalty Free 306
The W3C Patent License 307
Justifying Open Standards and Open Source 310

The Open Source Paradigm 313

Appendices 315

Index 385
About the Author 397

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Preface

In February 1989, Richard Stallman first released his GNU project software for UNIX under version 1.0 of the GNU General Public License (GPL). In June of that same year, Bill Joy first released a free version of UNIX software under the University of California’s Berkeley Software Distribution (BSD) license. These relatively quiet events signaled a new era in software licensing. Almost imperceptibly at first, but with increasing speed and energy, this licensing revolution, now widely referred to as open source, spread around the world.

By the first year of this century, approximately 17,000 open source projects were active on the SourceForge servers ( www.sourceforge.net ). Four years later there are over 74,000 such projects and more than 775,000 registered SourceForge users. The majority of that open source software is currently licensed under the GPL or BSD licenses; the rest use one of about fifty other licenses based on the same open source principles.

Open source is now dominating many of the market conversations in the software industry. While software companies continue to release valuable and high-quality products under proprietary licenses, most are also embracing open source product development and distribution models as well as the software licenses that make those models possible.

This book is about the law but it is not written for lawyers. You will not find citations to case law or rigorous academic analyses suitable for publication in a law journal. This book is written for my friends in the open source community who write and distribute software and who are confused about which licenses to use. It is also written for our customers who are concerned about how software licenses may affect them and their businesses. It seeks to dispel myths and fears about open source software licensing and to explain the legal context in which open source software exists.

Open source is built upon a foundation of intellectual property law, particularly copyright law. Open source software is owned by its authors, who license it to the public under generous terms. Open source licenses do not seek to destroy or steal intellectual property. The first chapters of this book explain the intellectual property laws that make open source licensing possible.

The following chapter describes the first broad category of open source licenses, what I call academic licenses to acknowledge their heritage in universities. These academic licenses allow software to be used, copied, modified, and distributed, even with proprietary software—and their source code is included. These licensors generously donate their software to the public for use by anyone.

The GPL—and the MPL, CPL, and OSL licenses that followed it—strike what I call a reciprocal bargain. Licensor and licensees share a public commons of open source software, but any modifications to that software must be distributed under the same license. These four licenses are much more complex than the academic licenses and so I devote a chapter to each of them.

Choosing a license to apply to your open source software is not an easy decision and so I devote an entire chapter to it. The answer depends intricately upon your business model, on your software and product architecture, and on understanding who owns the intellectual property in your products. If you expect a checklist method to select a license, don’t bother reading this chapter; it cannot be so easy.

Eventually, a licensor or licensee may need to enforce the terms and conditions of an open source license. I devote an entire chapter to satisfying the curiosity of those who may want to sue—or who are afraid of being sued—under an open source license.

Finally, I begin to address a potentially bigger issue than open source. Open standards are really the battlefield on which we will determine whether software can truly be free and open. That topic deserves a book of its own someday; this isn’t it, but I’m making a start.

Turning a software license into interesting reading is probably an insurmountable challenge. There is no other way than reading the words of a license to understand what it means. And so, for those of you who won’t actually plod your way through the detailed explanations of licenses herein, I want to give you the conclusion.

As a user of open source software you may go forth and live free. None of the licenses in this book restrict in any way your use of open source software.

But if you are more directly involved in the creation, modification, or distribution of software, or if you manage or advise the in-licensing of software into your company, you should at the very least consult your attorney to make sure you don’t commit to more than you’re willing to deliver. This book may help you ask your attorney the right questions.

Read More Show Less

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  • Anonymous

    Posted August 14, 2004

    Clarifies licensing issues

    At the core of the open source movement are licensing issues. These are still relatively new and potentially confusing to many. Here, Rosen offers a major clarification of the key ideas. He discusses the basic motivation underpinning the most common licenses, like GPL, CPL, OSL and MPL. These are compared with each other and with what might be considered the closest previous type of license - that used in academia. While the final choice is yours, he gives you a solid basis for determining that choice. For many readers, there will be an interesting analysis of the SCO versus Open Source fracas. In essence, he suggests that after all the dust has settled, it will break no new ground in contract law. Nor will it stymie or halt the open source movement. A relief to many, if his assessment proves true.

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