Ask an Attorney About Open Source Licensing

I first ran into Daniel B. Ravicher on the Open Source Initiative's license-discuss email list. He's a rarity: a young lawyer actively interested in and sympathetic to Open Source licensing. In fact, he wrote a detailed article on this topic for the Virginia Journal of Law and Technology last year while he was still in law school. Dan is now an associate at Brobeck, Phleger & Harrison LLP, a firm that handles, among other things, business law and intellectual property matters. Who better to ask about Open Source under the law? (The usual attorney disclaimer applies, of course -- that Dan can only answer general law questions, and if you want specific legal advice you must directly engage an attorney yourself.) One question per post, please. Tomorrow we'll forward 10 of the highest moderated ones to Dan by email, and put up his answers as soon as we get them back.

Comments

GPL and mis-use of copyright law

[Anonymous Coward]

I am sure there will be plenty of other GPL related questions. Mine is fairly narrow and specific. In that the GPL attempts thru a clevel legal hack to achieve a specific end result thru the use of copyright law that is different than what some envisioned the intent of copyright is, it has been suggested by some in the legal community that the GPL itself can be invalidated as a mis-use of copyright law. Is this a valid interpretation?

Supremacy Clause and shrinkwrap "no review" terms.

[coats]

Daniel, you write,

59. There is a huge flaw with this core of these Supremacy Clause preemption arguments. The underlying rationales given for performing a separate Supremacy Clause preemption analysis are exactly the same arguments made for finding the license procedurally or substantively unconscionable under state contract law.

How does this square with shrinkwrap license clauses that demand no one publish reviews or benchmarks without permission? Both Microsoft and Oracle employ such clauses, for example. It would seem to me that this conflicts with the original (1823?) Supreme Court decision that established the "fair use" doctrine -- the Court declared that Congress might not pass a copyright law so stringent as to restrain freedom of speech nor freedom of the press... and benchmarking and publishing the results certainly is a legitimate exercise of the latter! And the subject would seem to me to be precisely a Supremacy Clause argument...

What of dumping?

[nickm]

Suppose we reach a Free Software nirvana: the GPL is successfully defended in court, the DMCA/patent/UCITA/other restrictive laws must keep their mitts out of free software, etc...

Now what of antitrust law? Yes, we're doing this for the good of humanity, but larger institutions could (especially in the eyes of the courts) use Free Software as a way to quickly drown competitors. Could a company be held liable for releasing free software, especially if it's a "category killer" that makes the proprietary competition irrelevant?

Would the fact that the competition can build on the released codebase help matters any?

--
I noticed

How best to respond to legal threats

[imp]

What is the best way to respond to a legal threat? In the past, I've been told to tell anyone that makes legal threats or demands of me or my software to talk to direct all such communications through my lawyer as a matter of policy. Is this a good policy? When does taking a matter public do more harm than good?

Contributor Agreements

[dood]

I'm one of the lead developers on the Open Source project Jive. Many of our contributors work on the project as part of their job duties at their place of employment. In light of that, we've been considering a mandatory Contributor Agreement for all code that is submitted to the project (excluding one-liners).

We want the agreement to accomplish three things:

1. Stipulate that the code is being released to the project under the project's license (for our project this is the Apache License).
2. Ensure that the contributor has permission to release the intellectual property to the project, including any necessary permission from their employer.
3. Make sure that the contributor does not apply for patents for the code that they're submitting.

My question is:

1. Do you see legal value in this sort of agreement?
2. Do you know of any boilerplate agreements that exist?
3. Shouldn't more Open Source projects be worried about IP issues that a contributor agreement seeks to prevent?

Thanks!

Open Source License Enforcement

[RavenDarkholme]

The main question I have is, how do you enforce your GPL or other Open Source licensed product? Certainly, you can go to the offending party, and say, "You are in violation of the license agreement," but if they don't comply, what can you do? What are the damages? If I GPL my software, I can't very well go to court and say "You are stealing my property and costing me money" and thus sue for money lost since, after all, the GPL means anyone can copy it without paying. Without a ton of money to begin with, I can't do anything at all about people violating the licence even if there were monetary damages. So, I'd like an attorney's opinion on what tack you should take when trying to enforce GPL/Artistic/BSD or other Open Source licenses in a way that would be effective.

How Can We be More Effective?

[bwt]

The open source community interaction with law and politics to date has been almost completely reactive. Typically some company or governement institution has or is about to do something draconian before we are able to mobilize. Sometimes we get there in time, sometimes not. Examples are: DMCA, UCITA, and hundreds of software patents, Microsoft's embrace and extend campaign of the week, ... the list goes on.

What can we do as a community to be more effective in protecting ourselves. I'm someone who has joined the EFF, written letters to the copyright office, participated heavily on Openlaw, and written letters to my Congressmen. Many of us are involved in these ways, but somehow we've got to take it up a notch. What's the next step?

When will source code be considered speech?

[LordNimon]

Every programmer knows that source code is speech, and should be protected like any other speech. However, the courts just don't seem to realize that, probably because none of the judges have ever been programmers. What would it take for the court system to generally acknowledge that source code is speech, and how long will it take for that to happen? What do you think will be the biggest ramifications if/when it does happen?
--
Lord Nimon

Helping avoid contributory and vicarios liability

[cworley]

Fred von Lohmann wrote a White Paper for the EEF concerning avoidance of "contributory and vicarious copyright infringement" (being liable for writing software that promotes "fair use", but can be used for copyright infringement).

In that, he states guidelines for developers. One of the guidelines is: "Be open source".

I would think Open Source would set you up for liability in such matters: anybody who modified your code, making it able to infringe on copyrights, would make you vicariously liable for opening the code in the first place.

Or, take for example, TiVo. Their systems are open source, they've posted their kernel and tool modifications on their web site (as per the GPL). Now they're worried that someone could use that to easily create code that will allow MPEG extraction from the unit (and widespread distribution of copyrighted materials).

I'm not sure how being open source can protect a software developer from such litigation.

Can you explain this?

Junkbusters' Spamoff

[ekrout]

Is this (http://www.junkbusters.com/ht/en/spam.html) GPL'd disclaimer that an individual will not tolerate spam email really admissible in court? Could I change the amount from $10 per spam email to, say, $1000 per smam email, then send it to Spammer #1282733, and then take them to court if they send me another spam email and win $1000?

I'm not money hungry, but I do detest spam.

Microsoft Licensing

[Alien54]

In your detailed paper, you note:

37. For instance, under the first sale doctrine, an owner of a piece of software can transfer her program to whomever and for whatever she desires. The use of a license prevents this doctrine from applying, which allows computer programming firms to price-discriminate between customer characteristics. If Microsoft wants to give Windows software to public schools at a cost blow the production cost and the transaction consummates a sale, the first sale doctrine would apply, and the school could resell the programs at a higher price to a corporation, retaining the difference. This would cause Microsoft to charge all customers one price, either by lowering its price, forcing it to run at a loss, or raising its price, thus making the program unavailable to schools and other meagerly funded organizations. This result is economically inefficient and would most assuredly be politically unpopular.

I am interested on the implications of the fact of Microsofts monopoly in as it applies to licensing. While it can be argued that the two issues are separate, and one is not relevant to the other, many people look at the practices of Microsoft in this regard and view it with horror and contempt. Are there instances where such licensing practices impose a non-legitimate enforcment of "rights", and in fact constitute improper maintenance of a monopoly? Or do people have these separate issues confused, when they should be treated separately?

Check out the Vinny the Vampire comic strip

What are ...

[3seas]

What are the weakest points of the GPL?
3 S.E.A.S - Virtual Interaction Configuration (VIC) - VISION OF VISIONS!

Images and Sounds

[K45]

How does the GPL affect non-sourcecode files that are part of an application?

Specifically, I'm concerned about the images and sounds that are included with a game I'm working on.

Does the GPL "contaminate" these other files that are included? If so, how do "source" and "binary" distribution apply to images and sounds.

Thanks,
K45

Variations on a theme...

[fleeb_fantastique]

We have several licensing schemes available for the Open Source enthusiast, all dependant upon one's definition of 'Open Source'. Would you care to comment on each of these licenses, and their various pro's and con's?

Off the top of my head: GPL, QT Open Source, Public Domain, BSD.. most likely others.

Will Open Source be overpowered by cash?

[aussersterne]

Knowing the legal and political systems surrounding intellectual property as you do, what do you think the chances are that money (specifically, lobbying from organizations like Microsoft or the RIAA) will overpower Open Source by creating more and more insidious forms of copyright protection and law, possibly even to the point that Open Source becomes illegal because it "threatens" the closed-source business model?

This seems to be one of the current trends in intellectual property law. Do you think it will continue?

UCITA and liability

[brlewis]

The FSF's Why We Must Fight UCITA article seems to say that UCITA invalidates free-software disclaimers. Is this true? Why or why not?

Big ballpark hypothetical

[wrinkledshirt]

Okay, some unknown hacker creates his/her foo application and releases the source under GPL. Something occurs that leads him/her to suspect that the foo source has been incorporated into a commercial product that isn't following the terms of the GPL with regards to rereleasing the source. Furthermore, the things that lead him/her to suspect this aren't basic paranoia -- someone with a conscience and access to the suspect source has leaked information about it or whatnot. Or maybe something else -- point is, there is a case that could be made.

From a PRACTICAL standpoint, what sort of things would this unknown hacker have to do to make their case? Would it be possible from a practical point of view under (eg) the United States legal system for this unknown hacker to take the company to court? What sorts of costs would he/she incur? What sort of time-frame would it take to achieve resolution? What sorts of potential rewards or compensation could he/she expect? Are there any precedents that are analogous to this situation?

Public Domain

[Isamu Noguchi]

I've considered releasing software in the public domain as perhaps the simplest alternative to some copyrighted-yet-free approach, but I'm not clear on all the implications. Here's what I think:

1) I have to explicitly state that the source is in the public domain, otherwise it is copyrighted by default,
2) anybody else adding to or modifying the source would have to state that their mods are in the public domain (for the same reason),
3) if a person adding to or modifying the source wants to copyright their mods, they'd have to specify the extent of their changes or their copyright might be invalid, unless they substantially changed the whole thing.

If one intends for a work to be freely editable, it seems as though the only thing you give up by putting it in the public domain is some legal basis to sue. For example if somebody takes my public domain work and slaps their name and copyright notice on it, I may not have a good way to stop them although their copyright is invalid.

Is this correct? Any comments?

Changes to the GPL?

[iomud]

What changes if any would you make to the GPL to help support it's goals?

Doesn't the GPL "infect" all derivitives?

[Rick the Red]

This question has come up before, and I've seen flavors of it in this discussion:

If I release code under the GPL, doesn't the GPL "virus" now infect my code and all derivitives? There are examples of GPL code that was simultaniously released under a different license, and examples of GPL code that was the basis for derivative works that were not released under the GPL. Please explain how this is legal, under the GPL.

Several Slashdotters have said things like "Naturally, the author is free to do this" but I don't see the "natural" connection. If I release version 1.0 under the GPL, my reading of the GPL is that the "virus" infects all versions of the code, and that if I tried to release version 2.0 under a proprietary license then someone else could sue me because my version 2.0 violated the GPL on version 1.0. Yes, I'm the author and I hold all the rights, but when I release my code under the GPL I give up some of my rights and transfer them to the software's users. Don't the people to whom I gave those rights in version 1.0 retain those rights to all subsequent versions? If not, why not? The only way I can see for anybody, even the original author, to modify GPL code and not release the new source is to not release the new binarys either.

Similarly, I don't understand how I, as author of the code, could possibly release it under the GPL and another license at the same time. Why doesn't the GPL trump the other license? If A can get the source under the GPL and do whatever they want with it, and I sell the same code under another license to B, what prevents B from using the GPL to give the code away to whomever B wants, even though B didn't buy it under the GPL?

The specific example is a company that releases their *NIX version under the GPL but releases a Windows version of the same code under a proprietary license with no source code. Why can't a user of the Windows version sue for the source code, citing the GPL on the *NIX version? Why doesn't the GPL on the *NIX version trump the proprietary license on the Windows version?