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The meaning of “open source”; key issues common to most open source licenses; overview of the major open source licenses and and their impact in a corporate environment; potential risks associated with noncompliance
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Fundamentals of Open Source Licensing
May 7, 2010
Jennifer Buchanan O’Neill
Vice President and Managing Assistant General Counsel, Product Development
AIPLA Spring Meeting
Notices and Disclaimers
Copyright © 2010 Jennifer Buchanan O’Neill. All rights reserved. Apache is a trademark of The Apache Software Foundation. All trademarks, trade names, service marks and logos referenced herein belong to their respective companies.
The statements and opinions expressed herein are those of the author and are not necessarily those of CA, Inc. (“CA”).
To the extent permitted by applicable law, the content of this presentation is provided “AS IS” without warranty of any kind. In no event will the author or CA be liable for any loss or damage, direct or indirect, arising from or related to the use of this information, including, without limitation, lost profits, lost investment, business interruption, goodwill or lost data, even if expressly advised in advance of the possibility of such damages. Neither the content herein nor any software product referenced serves as a substitute for your compliance with any laws (including but not limited to any act, statute, regulation, rule, directive, standard, policy, administrative order, executive order, and so on (collectively, “Laws”) referenced herein or otherwise. You should consult with competent legal counsel regarding any such Laws.
CA CONFIDENTIAL -- PREPARED IN ANTICIPATION OF LITIGATION
Agenda
The meaning of “open source”
Key issues common to most open source licenses
Overview of the major open source licenses and and their impact in a corporate environment
Potential risks associated with noncompliance
CA CONFIDENTIAL -- PREPARED IN ANTICIPATION OF LITIGATION
What Is Open Source Code?
“Source code” is human-readable instructions for the software program
Source code is compiled or converted, creating “object code” that the computer can read and execute
Commercial software is generally licensed in object code form under a proprietary license
“Open source” software is licensed in source code form, at no charge, under terms freely available to the public
The end-user of open source code can modify it and distribute those modifications
The Urban Legends of Open Source
Open source code is not public domain Open source is not freeware Open source is not shareware Open source may still be subject to
regulation Open source may be licensed by
companies for use with their proprietary products and services
The Urban Legends of Open Source (cont.)
Open source licenses are enforceable
– First major appellate case addressing open source: Jacobsen v. Katzer, 535 F.3d 1373 (Fed Cir. 2008)
– Violation of conditions may constitute copyright infringement
– Violation of covenants may constitute breach of contract
– Potential remedies include statutory or actual monetary damages, specific performance, injunctive relief
Key Issues in Open Source Licensing
Requirement to make source code publicly available Right to redistribute modifications under terms of choice Right to redistribute product containing open source code
under terms of choice Pedigree of code contributed to open source community Notice and attribution requirements (e.g., user
documentation, source code files, marketing) Scope of copyright and patent licenses granted by
contributors to end-users “Patent retaliation” clauses, whereby an end-user loses all
patent licenses granted if it institutes litigation against anyone alleging that the software infringes its patent rights
Common Open Source Licenses
Commercially Friendly Licenses– Berkeley Software Distribution (BSD) License– MIT License– Apache Software License 2.0
Can be redistributed under commercial license Modifications can be protected by company Notice and attribution requirements typically
aren’t burdensome
Common Open Source Licenses
Weak Copyleft Licenses– Eclipse Public License– Common Public License– Mozilla Public License
Software incorporating unmodified open source code can be distributed under commercial license (original code remains under open source license)
Modifications must be made available under open source license
Common Open Source Licenses
Copyleft Licenses– GNU Lesser General Public License (LGPL)– GNU General Public License (GPL)– GNU Affero General Public License (AGPL)
Software “based on” open source code must be distributed under open source license
Possible safe harbor in LGPL for “dynamic linking”
Affero GPL even covers software used to run public server
Questions?
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