A Lawyer Looks at theOpen Source Revolution

Robert W. GomulkiewiczDirector, Intellectual Property Law & Policy Program

Associate Professor of LawUniversity of Washington School of Law

Overview

What is “open source” software? Who makes it? How is it developed? Is it new? Who uses it? How does licensing fit into the picture? Reflections on SCO litigation

What is “open source” software?

source = software in source code form open = freedom to:

View the source code Run the software for any purpose Modify the software in any way Distribute the software and any modifications

Software development model Philosophy—share and collaborate Licensing Model

Contrast to “Proprietary” or “Commercial” Software Hold source code as trade secret Code distributed in object code form Limited derivative works rights licensed

Other Labels for “Open Source”

Free software Copyleft Community software Public software

What is “Shared Source?”

Microsoft’s response to success of Open Source

Recognition that some constituencies do need increased access to source code Large end users ISVs and IHVs Governments Universities

Who Makes Open Source Software?

Hackers (not crackers) Hacker notables

Richard Stallman (Free Software Foundation) Eric Raymond (The Cathedral and the Bazaar,

Homesteading the Noosphere) Linus Torvalds (Linux) Bruce Perens (Open Source Definition)

How is it Developed?

Scratching an itch Collaborative development Peer review Centralized decision-making “Given enough eyeballs, all bugs are shallow”

Eric Raymond

Forking

Is Open Source a New Idea?

Software shared traditionally by hobbyists and scientists

Internet makes sharing and collaboration more efficient

Watershed event: Netscape licenses Communicator under open source license

Linux+Apache becomes popular as web server

Eric Raymond the software evangelist

Who Uses Open Source Software?

At first: hackers Now: lots of people

Internet backbone: Apache, Sendmail, BIND Linux I.B.M., Intel, Apple, H.P., Sun Commercial businesses Federal and state governments E.g., China, Mexico, Indonesia, Japan,

Germany

Who does not use it much (yet)?

Average desktop PC user Businesses worried about who stands behind

code and TCO Developers and users worried about IP

contamination

Open source software as a business

“Think ‘free speech,’ not ‘free beer’” Richard Stallman

Branded distributions Sell hardware, give away software Sell services and support Dual versions Dual licensing Value added software Sell sponsorships Sell ads and T-shirts

Licensing: the Force behind open source

“Free” and “open” is not: Public domain Copyright “first sale” Shareware or freeware

Licensing makes it work Control over use Risk shifting “To stay free, software must be copyrighted

and licensed.” Debian GNU/Linux Group

Open source licensing models

GNU General Public License BSD-style license Other models:

Mozilla I.B.M., Apple, Intel, RealNetworks, etc. Artistic license GNU Lesser GPL

Open Source Initiative (opensource.org)

BSD-style license

Key terms: License grant: unlimited use, modification,

distribution No warranties; disclaimer of consequential

damages No endorsement Attribution

GNU General Public License

Key terms: Unlimited right to run program Unlimited access to source code Unlimited right to distribute verbatim copies May create derivatives IF you agree to make the

derivatives “free” What is a “derivative” When does “free” mean “no charge”?

License is “viral” No warranties; disclaimer of consequential damages

SCO litigation

SCO sues I.B.M. for including UNIX code in its Linux distribution; Red Hat sues SCO for declaratory judgment

Sun, Microsoft, and others pay license fee to SCO

SCO approaches Linux end users about paying royalty (some pay, some get sued)

SCO litigation: broader issues

Who should bear risk of intellectual property infringement for Open Source software?

Do Open Source development practices adequately screen for infringing code?

Is the GNU General Public License enforceable?

SCO litigation: some reflections

It was just a matter of time If there is an infringement problem, it may be

fleeting How will the Open Source Community

respond? Treat SCO lawsuit as aberration Improve development practices Business opportunity?

Other resources

Robert W. Gomulkiewicz, De-bugging Open Source Software Licensing, 64 U. Pitt. L. Rev. 75 (2002)

Robert W. Gomulkiewicz, How Copyleft Uses License Rights to Succeed in the Open Source Software Revolution and the Implications for Article 2B, 36 Hous. L. Rev. 179 (1999)

Questions?