View
88
Download
0
Category
Preview:
DESCRIPTION
Promet's Ap
Citation preview
GREENBERG TRAURIG, LLP ATTORNEYS AT LAW WWW.GTLAW.COM ©2011. All rights reserved.
Open Source Software: Defining It, And Using It To Grow Your Business
April 23, 2013 Webinar Presented byBarry Horwitz and Promet Source
Necessary Disclaimer I am a lawyer, but . . . This presentation is not legal advice Legal advice requires:
□ Specific factual circumstances
□ An attorney-client relationship.
There will be time for questions at the end, but my answers are not “legal advice.”*
*Fine Print: If you have specific issues, questions or problems in mind, we can set up a time to discuss them separately
Open Source Software - Overview What is open source software?
□ Subject to open source license.
What is an open source license?□ Licensor must grant certain rights
□ Right to use, modify and distribute
□ Right to access source code
“Open source” vs. “Free software”□ You can sell open source software.
□ Free” does not mean “no cost”; it means unencumbered.
Think “Free speech, not free beer.”
Open Source Software – Uses & Restrictions What can businesses do with it? Some
examples:□ Use existing software as a head start
□ Modify code for additional functionality
□ Greater adaptability
□ Lower cost
Restrictions:□ Must allow access to source code
□ Must allow further modifications
□ Must allow further redistribution
Intellectual Property Primer
Intangible property rights over “creations of the mind”; four types:
Trademark
Patent
Copyright
Trade Secret
Trademark Law
Legal Basis: Lanham Act, 15 U.S.C. §§ 1051 et Seq.
Use: “Mark” or designation to indicate source□ Indicates quality
□ Need not identify source
Rights accrue upon use in commerce
Registration provides additional benefits
Prevents others from using the same or any confusingly similar mark with similar or related goods or services.
Patent Law
Legal Basis: U.S. Constitution, Art. 1, § 8, Cl. 8
U.S. Patent Act, 35 U.S.C. §§ 1 et seq.
Use: Inventions, improvements.□ Machines, Devices
□ Chemical compositions
□ Methods Processes
Rights accrue when granted a patent by Patent Office
Must disclose to earn monopoly
Prevents others from using, making, selling, importing, or offering for sale
Copyright Law Legal Basis: U.S. Constitution, Art. 1, §
8, Cl. 8
U.S. Copyright Act, 17 U.S.C. §§ 1 et seq.
Use: Works of Authorship.□ Does not protect ideas
□ Fixed in tangible medium of expression
Rights accrue when expression is fixed
Registration provides additional benefits
Prevents others from making copies, distributing, making derivative works and, in some cases, performance
Trade Secret Law
Legal Basis: Uniform Trade Secrets Act (enacted state by state). E.g. 765 ILCS 1065/1 et seq.
Use: Protect confidential information□ Information must derive economic benefit from
secrecy
□ Owner must take steps to protect confidentiality
Rights accrue as confidential information accumulates, so long as secrecy maintained
Registration provides additional benefits
Prevents others from wrongful using or disclosing
Independent derivation okay
Software: Types of IP
Software is most clearly subject to Copyright Literary work
More recently, patent protection
Could also be trade secret
Software Copyright Primer
17 U.S.C. § 101 defines a computer program as: A set of statements or instructions to be
used directly or indirectly in a computer in order to bring about a certain result.
Software copyright owners have exclusive right to:
Reproduce the work
Distribute the work
Create derivative copies of the work
Software: Licenses
You do not buy software; you license it.
License: grants the right to use. Permission.
Proprietary licenses withhold rights. Limit number of computers. Cannot distribute Cannot make derivative works
What is open source?
Open Source Definition
Open Source Definition – Criteria of License
□ 1. Free Redistribution – no restrictions on selling or giving away software. “License shall not require royalty or other fee for such sale.”
□ 2. Source Code - program must include source code, or include publicized means of obtaining source code for reasonable reproduction cost. Must allow distribution in source code
□ Derivative Works - must allow modifications and derivative works, and must allow them to be distributed under the same terms
□ No Discrimination – must not discriminate against any person or group or persons, or against any field of endeavor
□ Automatic Distribution of License – rights attached to license apply to all redistributions
Open Source Definition (Cont.)
Open Source Definition – Criteria of License
□ 3. Derivative Works - must allow modifications and derivative works, and must allow them to be distributed under the same terms
□ 4. No Discrimination – must not discriminate against any person or group or persons, or against any field of endeavor
□ 5. Automatic Distribution of License – rights attached to license apply to all redistributions
□ Other requirements…
Open Source License – The GPL
Basic rights include access to the source code and right to make derivative works
Key element: Reciprocity. Changes to the software must be
released under the same license
Purpose: Increase the amount of publicly
available software Ensure compatibility
Drawback: Linking – cannot be combined with proprietary software
Open Source Software - Advantages No Vendor Lock-in
Proprietary software can require additional monthly fee.
E.g. Security/Anti-spyware programs Leads to longer useful life of
software Can’t Be Orphaned by Vendor End-of-
Lifing Proprietary software - vendor stops
making new versions. E.g. Internet Explorer for Mac.
Lower Risk of Incompatibilities Proprietary software licenses can
preclude a fix; open source licenses allow anyone to create compatibility
Lower Cost Than Building From Scratch
Open Source Software – Advantages (Cont.) Allows for Larger User Base
Proprietary licenses can assert limitations on number of users.
E.g., downloading music Control of Software Remains With User,
Not Vendor Ability to Integrate with Open
Standards Greater adaptability Increased Innovation
Avoid competing with proprietary modified version of your own work
Peer Review Greater reliability Greater security
Open Source Software – Risks
Must adhere to copyright attribution and notice requirements
Must adhere to requirement to include source code
Linking can render proprietary source code subject to open source license
GPL and similar licenses have not been construed by American courts
Open source software can still be covered by software patents
Open Source Software For Startups The advantages discussed above
particularly apply to startups seeking to offer Software as a Service.
Facebook and Google collectively required millions of hours worth of coding.
Startups cannot afford to invest that much time
Goal: create and sell a mobile application that, for example, allows users to find a reasonably-priced parking space in downtown Chicago. Map functionality Payment processing functionality Account profile User Interface
Open Source Software For Startups The advantages discussed above
particularly apply to startups seeking to offer Software as a Service.
Startups cannot afford to invest millions of hours of coding in a new service
Goal: create and sell a mobile application that, for example, allows users to find a reasonably-priced parking space in downtown Chicago. Map functionality Payment processing functionality Account profile User Interface
Can You Generate Revenue With Open Source Software?
If software is a mobile application, that application can be sold in an app store.
YOU CAN SELL (license) OPEN SOURCE SOFTWARE, e.g. GPL, or from Drupal repository
“Sales” are really licenses. Can charge as much as you want! Purchasers (licensees) subject to the same license
Source code must be made available to licensees□ Need not give away code not distributed (internal
use)□ Viewing a website is not distribution, so need not
give away code to website visitors
Can You Generate Revenue With Open Source Software? (Cont.) Can I sell modules written by others?
□ No. That person retains copyright of their modules!
What does it mean to retain copyright even though subject to GPL?□ Right to control distribution; sell copies of YOUR
work□ What you give up: must make source code
available and others can modify your work
However, you can provide other services based on modules written by others, like:□ Support□ Training□ Customization□ Integration
Sample Solutions of Open Source vs. Proprietary Software
Grinnell College Campus Tour
FAQs Difference between GPL2 and GPL3?
Protects right to tinker: prevents “tivoization”
“Distribute” changed to “convey”
Stronger protection against patent threats Conveying software requires
licensing patents necessary to exercise GPL rights
If GPL3 licensee sues for patent infringement their license is terminated
Offers new ways to provide source code
Clarifies compatibility
FAQs (Cont.)
Difference GPL and other licenses (MIT, BSD)
No reciprocity
People can modify software licensed under BSD and then turn it proprietary
Fail to mention patents
FAQs (Cont.)
If I write a new module that does something never done before, have I created intellectual property?
You’ve created a module. The module can give rise to intellectual property rights. Patent Copyright Trade Secret
FAQs – Developers What should I put in my contract to
allow myself to re-use my code for similar projects?
IP Ownership Clause – retain copyright for all source code written.
If I develop GPL code for one client, can I sell it to another client if I do not make any changes?
Yes! You own the copyright, and your “sale” to the first client is merely a license for him to use it.
FAQs – Developers What should I put in my contract to
allow myself to re-use my code for similar projects?
IP Ownership Clause – retain copyright for all source code written.
If I develop GPL code for one client, can I sell it to another client if I do not make any changes?
Yes! You own the copyright, and your “sale” to the first client is merely a license for him to use it.
FAQs – Hiring Developers
If I want to hire a developer, what can I put in my contract to prevent them from selling the code to my competitors?
Insist that developer grant an exclusive license .
(But that will not prevent developer from modifying code further and having the ability to sell further modified code to competitors)
Summary & Wrap-Up
Numerous advantages to using open source software to offer new functionality within a business, or start a new business Need not start from scratch Lower cost “Future Proof”
Main drawbacks include adhering to all rules and requirements of license – requirements of copyright notice, attribution and making source code publicly available
Questions?
Contact information
Barry Horwitz, Greenberg Traurig, LLP horwitzb@gtlaw.com 312-456-1037
Andy Kucharski, Promet Source andy@promethost.com 773-525-8255
Recommended