Practical Open Source Software Engineering

PracticalOSSEngineering: FOSSAndTheLaw

FOSS and the Law

Authors notes

based on lecture 6 from ANU FOSS course
do we need a IANAL style disclaimer?
we should ask Eben Moglen to review this chapter

Most free software projects run into legal questions at some stage in their development. From simple questions like "is the license on that code compatible with my project" to more complex questions like "do we have to worry about that patent", projects often find themselves faced with legal questions.

In a conventional proprietary software company, these types of questions would be answered by a companies legal counsel. For many free software projects it would be impossible to regularly refer questions to a paid legal adviser, so often the project needs to find answers to the simpler legal questions itself, and use one of the community resources available for more complex questions.

This chapter will introduce you to some of the key legal concepts that come up in FOSS projects, and will describe how common legal problems are usually dealt with by projects. Towards the end of the chapter some of legal resources available to FOSS projects will be looked at.

Areas of the law

Software is strange stuff when it comes to the law. Most other areas of human endeavour interact strongly with just one or two major areas of most legal systems, but software stands out as interacting strongly with five areas - copyright, patents, trade secrets, contracts and trademarks. A good FOSS project leader will have some familiarity with the basics of all of these areas, and will also know when they are out of their depth and need to seek professional advice.

In the following discussions of each of these areas, one complication to keep in mind is that the law is not the same everywhere, and also is changing over time. There are a lot of common elements between different

FOSS intersects with many areas of law

Copyright – who can distribute a work
Patents – government granted monopolies on ideas
Trade Secrets – stuff that people want to keep secret
Trademarks – names that are owned

'Intellectual Property' A term greatly disliked by many in the FOSS community Can lead to confusion as it lumps together very different areas of law

(big cut+paste from slides)

Derived Work

A key concept for FOSS licensing
Often arises in questions on whether a license applies
Common (but misleading) rule of thumb on 'linking' and 'same address space'
Is a plugin module a derived work of the program?

Copyright Policies

Many projects have a 'copyright policy'

Some projects require copyright assignment
Facilitates enforcement and re-licensing
May add 'legal friction' to development

Some projects use a 'signed-off' system

Pioneered by the Linux kernel
Implies agreement to Developers Certificate of Origin
Adoption of signed-off a result of SCO lawsuit
Some projects require non-corporate copyright
A result of some curious legal history for Samba
Some projects require a sign-up process

Policies can backfire

Companies have used the policies to effectively avoid their license obligations

Patents

A monopoly on an idea A (limited term) government granted exclusive right Problems for FOSS Expensive to gain, maintain and fight Many software patents are trivial, but dangerous Independent invention is not a defence Impossible to license for FOSS use in most cases

Efforts to defend against patents Open Invention Nertwork Patent pool Peer-to-patent Defensive publications PubPat Patent challenges License terms Many FOSS licenses have patent defence clauses Try to ensure we all sink or swim together GPLv2 has patent defence, but Microsoft tried to sidestep it GPLv3 strengthens those terms

Trademarks

Exclusive right to a name or logo Usually tied to a product type Must be actively defended, or it can be lost Should a FOSS project register a trademark? Can prevent abuse of projects name Can be expensive (especially in time) to defend Well known FOSS trademarks Linux trademark (managed by Linux Foundation) First gained as a result of a scam attempt Distro trademarks (eg. RedHat) Interesting problems for derived distributions Mozilla Firefox trademark led to IceWeasel OSI Open Source trademark not on the words, only on the logo

EULAs

End User License Agreement Rarely read, but can be toxic Care needs to be taken by FOSS developers Common problems Anti reverse engineering terms Non-compete terms (eg. BitMover license) OS or hardware ties Can affect wine and virtualisation systems

License Enforcement

What if a FOSS license is violated? Infringer is approached, in a friendly fashion Often infringement is not deliberate Or results from misunderstanding FOSS Most projects seek compliance, not payment Can often be solved with a phone call or email When that fails Seek help from groups like the SFLC Software Freedom Law Center If GPL software, contact gpl-violations.org