Open Source, Free Software and Intellectual Property

Free as is freedom, not as in free beer.

Open Source, Free Software and Intellectual Property

Technical University of Berlin - Dec 14, 2011
Mirko Boehm (mirko@fsfe.org)

Wednesday, December 14, 11

Overview

What is Open Source?

Community driven innovation
vs. commercial exploitation

Economical and political impact
of Open Source


About me: Open Source hacker and activist, software developer, software business guy, dad


Part I: What is Open Source?
(and FOSS, FLOSS, GNU, CC-BY-WTF, OSI, FSF, FSFE, GPL, LGPL, BSD, ...)


The Open Source Deﬁnition (OSI)

• Free redistribution

• Source code

• Derived works

• Integrity of the author’s source code

• No discrimination against persons or groups

• No discrimination against ﬁeld of endeavor

• (4 more)


Examples

• GNU/Linux

• Apache web server

• GCC compiler

• VLC media player

• KDE Plasma Desktop

• Mozilla Firefox web browser


The KDE 4.7 Plasma Desktop


Philosophy Free as in Freedom


The Four Freedoms (Free Software Foundation)

• The freedom to run the program, for any purpose.

• The freedom to study how the program works, and change it so it does your
computing as you wish. Access to the source code is a precondition for this.

• The freedom to redistribute copies so you can help your neighbor.

• The freedom to distribute copies of your modiﬁed versions to others. By
doing this you can give the whole community a chance to beneﬁt from your
changes. Access to the source code is a precondition for this.

When a program offers users all of these freedoms, we call it free software.


Philosophy (FSF, others)

• Copyleft: Software should not have owners (controversial!)

• Selling Free Software is Ok

• Authors have copyright, combine that with free licensing

• There should not be patents

• Ethic of sharing

• Not free of cost (see TCO debate)

• Neither communism nor capitalism


“The future is ‘Open Source Everything’”
(Linus Torvalds)

• Open Data, Open Hardware (specs), Open Source Innovation, Open Source
Science

• Creative Commons, Wikipedia

• Education

• Politics and governance

• Music, books, art (of the virtual variety - that is all of them, today)


Part II: Community driven innovation
vs. commercial exploitation


Licenses, Copyleft, Freedom (examples)

• comments on FOSS license • non-free licenses:
categories:
• Apple Public Source License
• GPL/LGPL/AGPL
• fun bit:
• Artistic/CC0
• JSON License adds “The
• BSD, ... Software shall be used for
Good, not Evil.”
• free-ish licenses:
• That makes it incompatible
with Freedom 0 of the FSF.
• Microsoft Public License


When building IP clashes with Free Software

• AVM vs. Cybits: Manufacturers copyright (Urheberrecht) vs. rights guaranteed
by GPL. Decision Nov 8, 2011:

• Urheberrecht cannot be used to restrict GPL freedoms

• aggregate works (Sammelwerk) may extend freedoms of GPL to whole
product

• gpl-violations.org as joint plaintiff: Copyright holders of the code are
affected by GPL violations and therefore can defend their rights

• License to use GPL software forfeit on proven GPL violation (!)


Other famous cases

• D-Link, 2006: "Regardless of the repeatedly-quoted judgement of the district
court of Munich I, we do not consider the GPL as legally binding." Bad idea.

• TiVo (hardware restrictions), upheld. Diverging opinions (should licenses only
affect software?, see Secure Boot), led to GPLv3.

• TomTom (non-publication), amiable agreement + donation to CCC.

More than 100 cases brought to court by gpl-violations.org since 2004.

Conﬂicts between Free Software and building IP are a relevant issue.


Controversy around restrictions of usage rights

• Digital Rights Management: after sale restrictions of usage rights

• Also affects legal usage rights like reselling, backup copies, lending,
research and education

• Problematic when combined with Free Software

• Digital Millennium Copyright Act: disallows circumvention of content
protection

Openness vs. restriction - what constitutes “fair use”?


Digression: NOT IPR (controversial)

• Claims grouping copyright, trademarks and patents is not warranted,
confusing. The term “Intellectual Property” should be rejected.

• Laws governing copyright, trademarks and patents developed independently
and are serving different purposes.

• Suggests to reform (and rename) WIPO.


Business Models in Open Source

€
0

Business Models

• Single Vendor Commercial
Open Source

• Commercialization

• Services/subscriptions (with
supporting software)

• Dual licensing

• Freemium

(probably incomplete)


Open Source Foundations

• Examples:

• Linux Foundation

• Qt Project

• Open Source is commercial: vast majority of contributors are professionally
employed engineers

• Foundations emerge when cooperation is the efﬁcient strategy


Complex contributor copyright situation

• Contributors to Open Source projects rotate due to personal development,
job changes, ...

• Teams working together: individual copyright on whole result

• Generations of contributors: rights to new modiﬁcation, based on previous’
contributor’s rights

• Result: layers of layers of individual copyrights - anti-commons situation

• Solution: Fiduciary License Agreements (FLA), Contribution Agreements (CA)

• Problematic if not employed from the beginning (see Linux kernel)


Part III: Economical and political impact
Open Source in the private sector, public sector and politics


Competition in Open Source

• Difference between community OS projects (committers/contributors) and
commercial OS projects (employees)

• Community: Motivational factors are mostly intrinsic - peer recognition, code
contributions, personal interest in subject matter (purpose, fun), and
community leadership

• (and demonstrating technical abilities, improve job prospects)

• Modules (code contributions) will be replaced rapidly if better ones are
created, non-monetary competition is ﬁerce

• Companies: Reach a more competitive demand curve using OSS


Private Sector

• Cost reduction

• Cooperation/Collaboration

• Freedom from lock-in

• Long-term investment security

• Compliance requirements


NYSE runs Linux


Public Sector

• Trust, accountability and transparency through openness

• Cost reduction (open sourcing of publicly funded software)

• Reduce TCO of IT systems used

• Stir competition and re-use during procurement processes


SINA is based on Linux (developed by Secunet)


Government and Politics

• Same arguments apply to Open Source that apply to fostering innovation
(assumes Open Source is beneﬁcial for innovation)

• Affects allocation of tech jobs

• Affects allocation of tech industries

• Case for Open Source in education

• GDP growth effect through local effect of buying services contrasted to
remote effect of acquiring licenses


Summary
Why IP managers need to know about Open Source Software and Principles


Important points to remember

• Open Source is ubiquitous, almost every business is either contributing to or
using it. Make sure you understand the implications of the licenses used.

• From a standardization point of view:

• Open Source Software is the metric ISO thread of the 21st century. It
forces standardization on reusable, adaptable and freely deployable
software components across industry segments.

• The Open Source Principles’ effect is comparable to the Zollverein (tariff
union). They enforce cooperation, increase competition, eliminate vendor
lock-ins and increase market efﬁciency.

• Open issue: software patents


Thank you.
Questions?


Thanks to...

• Pictures:

@thinkfat on Flickr: http://www.flickr.com/photos/thinkfat/6032871755

@kittykat3756 on Flickr: http://www.flickr.com/photos/kitty-kat/6049220331

@champura on Flickr: http://www.flickr.com/photos/champura/4254874634

Wikipedia (http://en.wikipedia.org/wiki/KDE_Software_Compilation_4)

Nuno Pinheiro for the “communist” artwork

http://www.secunet.com/en/products-services/high-security/sina (SINA product line)

• Support:

Till Jäger (JBB Rechtsanwälte) for information about the AVM case (and lunch :-) )


References
• http://en.wikipedia.org/wiki/Open_source

http://en.wikipedia.org/wiki/Open-source_software

• http://www.gnu.org/philosophy/not-ipr.xhtml (arguments against IP as a term)

• http://blogs.fsfe.org/fellowship-interviews/?p=477

• http://www.riehle.org/computer-science/research/2007/computer-2007-article.html (motivation of contributors)

• http://blogs.fsfe.org/gerloff/2011/10/24/wipo-sliding-back-into-the-dark-ages (on WIPO and software patents)

• http://eprints.lse.ac.uk/39826/ (on FOSS TCO)


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