FOSS Legal Aspects - Case Studies

Case studies and practical issues (choosing a license,
compatibility, forking, merging/mixing...).

1. Case studies Legal Aspects – Master on Free Software 2012-13 Miguel Vidal http://flossystems.com Twitter: @mvidallopez November 16th, 2012 1 / 39 Miguel Vidal Case studies
2. (cc) 2008-2012 Miguel Vidal This work is licensed under a Creative Commons Attribution 3.0 License http://creativecommons.org/licenses/by/3.0 2 / 39 Miguel Vidal Case studies
3. Disclaimer This presentation is for informational and educational purposes only, and is not legal advice! It must not be relied upon as a substitute for obtaining specific legal advice from a licensed attorney. Legal advice must be provided in the course of an attorney-client relationship specifically with reference to all the facts of a particular situation and the law of your jurisdiction. Hire an attorney if you need legal advice 3 / 39 Miguel Vidal Case studies
4. Course Contents Lesson 0: Presentation of the Course Lesson 1: Intellectual Property: basic concepts and legal framework Lesson 2: Legal Aspects of Free/Open Source Software Lesson 3: Free/Open Source software licenses Lesson 4: Free licenses for other intellectual works Lesson 5: Case studies 4 / 39 Miguel Vidal Case studies
5. Choosing a free license: previous criteria Each project has its own goals and criteria related to licensing issues. The main criterion of differentiation is existence (or not) of reciprocity pacts. Other copyleft licenses have a limited effect, which applies only to the work (or component) original (“weak copyleft”). Dual licensing policies. 5 / 39 Miguel Vidal Case studies
6. Choosing a free license: When? When we want to guarantee some basic freedoms, common to all free software. When we want a work achieves the highest use and dissemination (permissive licenses). When we want to maintain control over the evolution of the program (copyleft licenses). When we impose certain conditions or restrictions (the recognition of authorship, copyleft, lack of liability, extra warranties, trademarks, etc.) 6 / 39 Miguel Vidal Case studies
7. How to know when a software license is free? 7 / 39 Miguel Vidal Case studies
8. How to know when a software license is free? 8 / 39 Miguel Vidal Case studies
9. Choosing a free license: Cases Do I want to allow privatization of derivative works? 9 / 39 Miguel Vidal Case studies
10. Choosing a free license: Cases Do I want to allow privatization of derivative works? Do I want developers return their modifications to the community, or me as original author, in particular? 9 / 39 Miguel Vidal Case studies
11. Choosing a free license: Cases Do I want to allow privatization of derivative works? Do I want developers return their modifications to the community, or me as original author, in particular? Do I want to allow licensees to merge or link their program with mine? 9 / 39 Miguel Vidal Case studies
12. Choosing a free license: Cases Do I want to allow privatization of derivative works? Do I want developers return their modifications to the community, or me as original author, in particular? Do I want to allow licensees to merge or link their program with mine? Do I want widespread coverage, avoid any restriction and/or try to establish a standard? 9 / 39 Miguel Vidal Case studies
13. Choosing a free license: Cases Do I want to allow privatization of derivative works? Do I want developers return their modifications to the community, or me as original author, in particular? Do I want to allow licensees to merge or link their program with mine? Do I want widespread coverage, avoid any restriction and/or try to establish a standard? Should my program run with one in particular? Have it any restrictions? 9 / 39 Miguel Vidal Case studies
14. Choosing a free license: Cases Do I want to allow privatization of derivative works? Do I want developers return their modifications to the community, or me as original author, in particular? Do I want to allow licensees to merge or link their program with mine? Do I want widespread coverage, avoid any restriction and/or try to establish a standard? Should my program run with one in particular? Have it any restrictions? Is there risk that someone requiring a patent license over program? 9 / 39 Miguel Vidal Case studies
15. Quick Reference For Choosing a Free Software License 10 / 39 Miguel Vidal Case studies
16. Exercise: Find mistakes 11 / 39 Miguel Vidal Case studies
17. Conventional Matrix 12 / 39 Miguel Vidal Case studies
18. Matrix Including Developer’s Choice 13 / 39 Miguel Vidal Case studies
19. Remarks Some members of the community refuse to accept GPL’ed source code into their projects. Other members of the community strongly prefer GPL’ed source code over other licenses. Nobody refuses to accept code under permissive licenses such as BSD, X11, MIT... 14 / 39 Miguel Vidal Case studies
20. Remarks (2) Almost nobody refuses to accept LGPL’ed code, except the Apache Foundation, saying that they think it would impose LGPL requirement upon the proprietary code (when they are linked via the Java class-loading mechanism). The FSF disagrees with this statement, asserting that such linking falls under section 6 of the LGPLv2 (“linking exception”). 15 / 39 Miguel Vidal Case studies
21. Remarks (and 3) MPL 1.1 can be specifically amended to allow combining with GPL (section 13). You should also get your employer (if you work as a programmer) or school, to sign a “copyright disclaimer” for the program, if necessary. 16 / 39 Miguel Vidal Case studies
22. Choosing a Free Software License 17 / 39 Miguel Vidal Case studies
23. Applying a free license LICENSE or COPYING file. Copyright and license summary at the beginning of each source file. It should have at least the “copyright” notice and a link to the full version of the license. Also add information on how to contact you by electronic and paper mail. If the program is interactive (terminal), make it output a short copyright notice when it starts in an interactive mode. If it has a GUI, a menu can include copyright notice (or even the full license). 18 / 39 Miguel Vidal Case studies
24. Applying a free license File-by-file method: widely adopted in the free software community during the past two decades. “Single COPYRIGHT file” method (FSF preferred) Question: advantages and disadvantages 19 / 39 Miguel Vidal Case studies
25. Example: How to Apply the GPL to Your Work <one line with program’s name and a brief idea of what it does.> Copyright (C) <year> <name of author> This program is free software: you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation, either version 3 of the License, or (at your option) any later version. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details. You should have received a copy of the GNU General Public License along with this program. If not, see <http://www.gnu.org/licenses/>. 20 / 39 Miguel Vidal Case studies
26. Example: How to Apply the Apache License to Your Work Copyright [yyyy] [name of copyright owner] Licensed under the Apache License, Version 2.0 (the ‘‘License’’); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0 Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an ‘‘AS IS’’ BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License. 21 / 39 Miguel Vidal Case studies
27. Example: How to Apply the ISC License to Your Work (1) Below is an example license to be used for new code in OpenBSD, modeled after the ISC license. It is important to specify the year of the copyright. Additional years should be separated by a comma, e.g. Copyright (c) 2003, 2004 If you add extra text to the body of the license, be careful not to add further restrictions. 22 / 39 Miguel Vidal Case studies
28. Example: How to Apply the ISC License to Your Work /* * Copyright (c) CCYY YOUR NAME HERE <user@your.dom.ain> * * Permission to use, copy, modify, and distribute this software * for any purpose with or without fee is hereby granted, provided * that the above copyright notice and this permission notice appear * in all copies. * * THE SOFTWARE IS PROVIDED ”AS IS” AND THE AUTHOR DISCLAIMS * ALL WARRANTIES WITH REGARD TO THIS SOFTWARE INCLUDING * ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS. * IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR ANY SPECIAL, * DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY * DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR * PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR * OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION * WITH THE USE OR PERFORMANCE OF THIS SOFTWARE. */ 23 / 39 Miguel Vidal Case studies
29. Maintaining Permissive-Licensed Files in a GPL-Licensed Project Take care to comply with the minimal conditions of the permissive license. Full preservation of copyright, permission, and warranty disclaimer notices. Failure to do so may result in infringement of the copyright. 24 / 39 Miguel Vidal Case studies
30. Adding GPL’d modifications to permissive-licensed files The developer of the GPL’d project must comply with the notice preservation requirement. He should place a new copyright notice and permission notice above the existing one He should make clear that the developer has modified the file. 25 / 39 Miguel Vidal Case studies
31. Adding GPL’d modifications to permissive-licensed files /* * Copyright (c) 2007 GPL Project Developer Who Made Changes <gpl@example.org> * * This file is free software: you may copy, redistribute and/or modify it * under the terms of the GNU General Public License as published by the * Free Software Foundation, either version 2 of the License, or (at your * option) any later version. * * This file is distributed in the hope that it will be useful, but * WITHOUT ANY WARRANTY; without even the implied warranty of * MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU * General Public License for more details. * * You should have received a copy of the GNU General Public License * along with this program. If not, see <http://www.gnu.org/licenses>. * 26 / 39 Miguel Vidal Case studies
32. Adding GPL’d modifications to permissive-licensed files /* * Copyright (c) 2007 GPL Project Developer Who Made Changes <gpl@example.org> * * This file is free software: you may copy, redistribute and/or modify it * under the terms of the GNU General Public License as published by the * Free Software Foundation, either version 2 of the License, or (at your * option) any later version. * * This file is distributed in the hope that it will be useful, but * WITHOUT ANY WARRANTY; without even the implied warranty of * MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU * General Public License for more details. * * You should have received a copy of the GNU General Public License * along with this program. If not, see <http://www.gnu.org/licenses>. * * This file incorporates work covered by the following copyright and * permission notice: * * Copyright (c) YEARS LIST, Permissive Contributor1 <contrib1@example.net> * Copyright (c) YEARS LIST, Permissive Contributor2 <contrib2@example.net> * * Permission to use, copy, modify, and/or distribute this software * for any purpose with or without fee is hereby granted, provided * that the above copyright notice and this permission notice appear * in all copies. * 26 / 39 Miguel Vidal Case studies
33. Mixing GPL and BSD code just takes care 1 Identify all contributors. 2 Identify which contributions create a copyright interest. 3 Secure permissions from current copyright holders. 4 Create a system for tracking permissions on future contributions. 5 Publicize the new licensing policy. 27 / 39 Miguel Vidal Case studies
34. Dual-licensing Distribute software under two different sets of terms and conditions. Motivations: License compatibility (Perl, Mozilla/Firefox, MySQL). Market segregation based business models (MySQL Enterprise) Allows the holder to offer customisations, early releases, generate other derivative works or grant rights to third parties to redistribute proprietary versions. 28 / 39 Miguel Vidal Case studies
35. Dual-licensed under the GPL and a permissive license? Developers sometimes attempt to explicitly dual licensing to be available under permissive terms as well as to be incorporable into GPL’d projects. But developers should simply use the permissive license without any further reference to the GPL (Software Freedom Law Center). 29 / 39 Miguel Vidal Case studies
36. Compatibility Two licenses are incompatible if it is not possible combining both works in compliance with the terms of both licenses at the same time. It affects to distribution, not the use. If two licenses are free does, it doesn’t imply are compatible. Copyleft licenses are mutually incompatible, unless compatibility is declared explicitly. Support for “ linking”: even if not allowed mix or integrate software with different licenses, maybe it can be linked. 30 / 39 Miguel Vidal Case studies
37. Forking (1) A piece of software is modified and developed separately by another team development, and distributed under a different name, and maybe other license. The forks can be possible only with free/open source software. The GPL software has tendency to avoid forking (we must keep the original license). The BSD-style licenses are forked easily. 31 / 39 Miguel Vidal Case studies
38. Forking (and 2) Forkaphobia: Soma people consider forking a bad thing (waste efforts, bitter disputes...). But there are successful cases: XOrg/XFree86, 386BSD, OpenBSD, Gnu-Emacs/XEmacs, changes of license (GForge, OpenSSH). If forking is easy, experimentation with ideas can be pursued while still remaining downstream. But if forking is difficult, experimenters are reduced to dissenters (resulting in divorce). Forking paradox: “the easier it is to fork the software, the more difficult it is to fork the community” (Bryan Cantrill) 32 / 39 Miguel Vidal Case studies
39. Licenses and warranty Warranty disclaimers and limitation of liability clauses are common in software. There are legal doubts about the effectiveness of these clauses: would not apply to consumers. This clauses are valid when there is no commercial service. The proprietary licenses using similar terms: is a myth to accept greater responsibility. It must be considered legal guarantees that apply to both open source and proprietary software. The free licenses allow (sometimes) to add extra warranty clauses. 33 / 39 Miguel Vidal Case studies
40. Anti-patterns: mistakes (B. Cantrill) No source! Don’t do this: you gain nothing and you lose credibility (perhaps forever). Ex. HP webOS Forkaphobia: FOSS that cannot be forked has no vitality. Governance orgy (constitutions, elections...): corrosive effects, factionalize and undermine community. Competitive paranoia: companies that adopt your technology are not your competitors! 34 / 39 Miguel Vidal Case studies
41. Anti-collaborative licensing? Competitive paranoia: anti-collaborative licensing erect walls within open source software. Strong copyleft (and affero clauses) excludes competitors... but also collaborators! It prevents cross-polinization across open source code bases! And prevent integration of FLOSS technologies! (ex. DTrace, ZFS and Linux). If you want a collaborative copyleft license, consider weak copyleft (MPL, CDDL, LGPL...). 35 / 39 Miguel Vidal Case studies
42. Exercise: Case study Case study: Apache License v2 and GPL (v2 and v3) (in)compatibility. 36 / 39 Miguel Vidal Case studies
43. Exercise 2: Case study Case study: GPL and CDDL incompatibility. 37 / 39 Miguel Vidal Case studies
44. Exercise 3: Case study Case study: The Atheros Case. 38 / 39 Miguel Vidal Case studies
45. Case studies Legal Aspects – Master on Free Software 2012-13 Miguel Vidal http://flossystems.com Twitter: @mvidallopez November 16th, 2012 39 / 39 Miguel Vidal Case studies