The Open Source Alternative

Heather J. Meeker is a shareholder at Greenberg Traurig, LLP, one of the largest law firms in the United States. Heather has provided open source counseling to clients ranging from technology startups using open source in product development, to public technology companies conducting open source code releases, to venture capitalists assessing new business models in the software industry. She also serves as an adjunct professor at the U.C. Berkeley School of Law, is a member of the American Law Institute, and in 2005, was selected by the Daily Journal as one of the top thirty intellectual property lawyers in California.

Preface ix

Part one Leveraging opportunities 1

Chapter 1 Introduction: How UNIX Gave Birth to Linux, and a New Software Paradigm 3

In the Beginning Was the Word, and the Word Was UNIX 3

Along Comes Linux 6

Now, What is Open Source? 7

And This is Just the Beginning 9

Chapter 2 Free Software and Open Source 11

Viruses and Freedoms 11

Philosophy of Free Software 13

Open Source Initiative 18

Mozilla Foundation 18

Linus Torvalds 19

Definitions: Free Software and Open Source 21

What’s in a Name? The Viral and the Nonviral 22

Open Source Development Model 25

Chapter 3 Common Open Source Licenses and Their Structure 27

Direct Licensing 29

GPL 29

GPL + Exception (or Special Exception) 39

GPL + FLOSS Exception 40

LGPL 40

Corporate Hereditary Software Licenses 41

Other Hereditary Software Licenses 43

Permissive Licenses 43

Apache 1.0 46

Apache 1.1 46

Apache 2.0 46

Artistic License 46

Miscellaneous Licenses 47

Non-Software Licenses 49

Chapter 4 Due Diligence, License Proliferation, and Compatibility 53

What is the Problem with Combining Software? 53

What is Due Diligence? 54

License Conditions and Diligence Problems 57

License Compatibility 59

Choices in an Incompatible World 62

An Embarrassment of Riches? 66

Reusability 69

Chapter 5 Audits and Compliance Initiatives 71

Provenance and Objective Checking 72

Applying Policy and Legal Review 74

Some Nuts and Bolts 76

Chapter 6 Notice Requirements 83

Chapter 7 Patents and Open Source 89

Patent Debate 89

Patent Portfolio Management 98

Chapter 8 Trademarks and Open Source 109

Trademark Law and Open Source Licensing 109

Trademarks in the Open Source World 111

AT&T UNIX Battle 112

Chapter 9 Open Source and Open Standards 115

Chapter 10 Developing a Corporate Open Source Policy 119

Appendix 10A Open Source Corporate Policy 123

Chapter 11 Open Source Code Releases 135

Choosing a License 136

Effect on Patent Portfolio 139

Effect on Trademarks 140

Open Source Business Models 142

Dual Licensing 143

“Ur-Licensor” and Open Source Decision Models 146

Contribution Agreements 146

Reissuing Code 150

Corporate Organization 150

Appendix 11A Open Source Trademark Policy 153

Part two Understanding risks 159

Chapter 12 Technical Background: Operating System Kernels, User Space, and Elements of Programming 161

What is the difference Between an Application and an Operating System? 163

What is an Operating System Kernel? 164

What is an Application? 165

Dynamic and Static Linking, and Inline Code 166

Header Files 169

Monoliths and Loadable Kernel Modules 170

Chapter 13 Enforcement of Open Source Licenses 171

Past Enforcement 171

Enforcement Obstacles 176

Lack of Track Record: GPL Has Never Been Tested in Court 176

Waiver/Estoppel: Occasional and Selective Enforcement of GPL Means it is Unenforceable 177

Formation: GPL is Not Validly Accepted by Licensees 177

GPL Constitutes Copyright Misuse 178

Joint Work Arguments 179

Standing and Joinder Arguments 180

Chapter 14 The Border Dispute of GPL2 183

Defining the Border Dispute 183

What the GPL Says 184

Rules of Contract Construction 186

Applying the Four Corners Rule to GPL2 188

Applying the Rules of Contract Construction of GPL2 190

Trade Usage and Other Extrinsic Evidence 191

Derivative Works Question 192

The Facts 195

Legal Rules 196

Analyzing the Case of Two Works 200

Is the Result One or Two Works? 205

Policy Arguments 206

Non-U.S. Law Interpretations 207

Approach of Legal Realism 208

Outside the Four Corners 209

Loadable Kernel Modules 212

The Hardest Cases 216

LGPL Compliance 217

Chapter 15 License or Contract? 223

Contract Formation 223

Arguments Supporting Formation 225

Implications of Absence of Contract Formation 226

Incentives for Formation Arguments 229

Chapter 16 Defining Distribution 233

Chapter 17 Open Source in Mergers and Acquisitions and Other Transactions 237

Open Source in Licensing and Commercial Transactions 241

Development Agreements 242

Chapter 18 GPL Version 3.0 245

What is the Effect of the Release of GPL3? 245

Adoption of GPL3 247

Politics and Context 248

“Derivative Works” Problem 251

“Propagation” and “Conveying” 252

Patents 252

Digital Millennium Copyright Act Provisions 255

“Java Problem” 257

Disabling and Obfuscation 257

ASP Problem 258

License Compatibility 259

Chapter 19 LGPL Version 3.0 261

New Approach for LGPL 261

Adoption of LGPL3 261

Politics and Context 262

Definitions 262

Compliance 262

Drawbacks 264

Appendix A Open Source Development Agreement 265

Glossary 277

Index 283