Managing Rights Management

Open Source Meets Proprietary: Where's the Balance?

BusinessWeek has an article on open source and restrictive and/or proprietary technologies such as DRM. The article reports a discussion with Nokia's Dr. Ari Jaaksi:

Jaaksi, Nokia's vice president of software and head of the Finnish handset manufacturer's open-source operations, said: "We want to educate open-source developers. There are certain business rules [developers] need to obey, such as DRM, IPR [intellectual property rights], SIM locks and subsidised business models.... Why do we need closed vehicles? We do," he said. "Some of these things harm the industry but they're here [as things stand]. These are touchy, emotional issues but this dialogue is very much needed. As an industry, we plan to use open-source technologies but we are not yet ready to play by the rules; but this needs to work the other way round too."

Software Freedom Law Center Sues Verizon Over Open Source Software

The Software Freedom Law Center (SFLC) has filed a copyright infringement lawsuit against Verizon  on behalf of the two principal developers of BusyBox, alleging violation of the GPL V2. BusyBox is a lightweight set of standard Unix utilities commonly used in embedded systems and is open source software licensed under GPL version 2.

An Information Week article says that:

The case against Verizon, however, marks the first time SFLC has sought to defend the GPL in court against a multibillion dollar industry giant. As such, it could provide a key test of the legal validity of the GPL -- a license that's used by thousands of open source developers. Some companies, includingMicrosoft (NSDQ: MSFT), have said they believe parts of the GPL are not legally enforceable.

First Open Source Law Suit Settled

The Register (UK) reports that the Software Freedom Law Center announced that it has  reached an agreement with Monsoon Multimedia to end the SFLC's copyright infringement suit against the company.

With the actual settlement announced yesterday, the SFLC got what it was holding out for: money. The agreement includes an "undisclosed amount of financial consideration" for the plaintiffs, and also requires Monsoon to publish the source code, appoint an Open Source Compliance Officer and notify previous recipients of the software about their rights under the GPL.

SFLC GPL Enforcement Law Suit Filed Against Monsoon Multimedia

The Software Freedom Law Center has filed a law suit against Monsoon Multimedia seeking to enforce the terms of the General Public License V2 (not the more recent GPLv3).

Stephen Shankland writing on ZDNet says:

Dan Ravicher, SFLC's attorney on the case, said the suit isn't part of a broader effort to give GPL enforcement a stronger legal foundation. But the action has repercussions for a much larger audience than just the single defendant.

"There still appear to be flaming examples of either indifference to or outright disregard for the GPL," said James Harvey, an attorney with Hunton & Williams who is not involved with the suit. "I think those flaming examples will increasingly be called to order by somebody, whether SFLC, a copyright holder or someone else in the open-source ecosystem."

 

Torvalds Says GPLV3 Authors 'Hypocrites'

Information Week is quoting Linux creator Linus Torvalds as saying that

In a posting on the Linux kernel mailing list, Torvalds said the Free Software Foundation's position on Tivoization is one reason he won't license his Linux kernel under GPLv3. "The GPLv3 doesn’t match what I think is morally where I want to be," Torvalds wrote. "I think it is okay to control people's hardware, I do it myself," he continued....

He accused the Free Software Foundation leadership, which includes eccentric, MIT-trained computing whiz Richard Stallman, of injecting their personal morality into the laws governing open source software with the release of GPLv3. "Only religious fanatics and totalitarian states equate 'morality' with 'legality,' " Torvalds wrote.

GPLV3 Launched - Does Anyone Care?

Writing in Linux-Watch / eWeek, Steven J. Vaughan-Nichols wonders if anyone cares about GPLV3:

GPLV3 Launched, Reactions Vary

Information Week has an article asserting that reaction is "muted" to the GPLV3 which was launched last Friday. Still early to draw conclusions. In several postings relating to earlier drafts I noted that attorneys should be consulted before adopting GPLV3. I believe this continues to be excellent advice.

Torvalds Remains Skeptical Toward GPLv3

Linux creator Linus Torvalds remains skeptical about GPLv3, says VNUNET.

"I was impressed in the sense that it was a hell of a lot better than the
disaster that were the earlier drafts," he said.

The Linux founder has previously dismissed the licence as "religious". He disagrees with its attempts to prevent the use of digital rights management and its efforts to undermine the Novell-Microsoft partnership.

He also killed speculation that the Linux kernel would use a dual licence, allowing users and distributors to choose between GPLv2 and GPLv3, describing it as "unlikely and technically quite hard" but at least "possible in theory".

GPLv3 Draft 4 On Patents

The fourth and presumably final draft of the GPLv3 was published late last week. As noted, Stallman remains on the anti-patent path. Here's what the fourth draft says about patent licenses:

Stallman on Why Upgrade to GPLv3

Through a Free Software Foundation mailing list, I received a mailing from Richard Stallman on why upgrade to version 3 of the General Public License. As discussed here previously, this version of the GPL is extremely anti-patent. Stallman is the best spokesperson for his position:

Another threat that GPLv3 resists is that of patent deals like the

Novell-Microsoft deal.  Microsoft wants to use its thousands of

patents to make GNU/Linux users pay Microsoft for the privilege, and

made this deal to try to get that.  The deal offers Novell's customers

rather limited protection from Microsoft patents.

Microsoft made a few mistakes in the Novell-Microsoft deal, and GPLv3

is designed to turn them against Microsoft, extending that limited

patent protection to the whole community.  In order to take advantage

of this, programs need to use GPLv3.

Developers Don't Want GPLv3 to Muck With Patents

According to eWeek, developers don't want the GPLv3 to police patents or to prevent future deals such as the Microsoft-Novell deal. This according to a Microsoft-funded study available here. Quoting from the study:

While many developers cited displeasure with the patent element of the Novell-Microsoft deal, the use of Digital Rights Management (DRM) to restrict the use of modified open source software, or the enforcement of software patents, (all publicly by Stallman as drivers for the revision of the GPL) they did not believe it was the place of the GPLv3 or other licenses to prevent such deals or resolve such issues— “Restrictive licenses are not good for the community. I don’t want anybody telling me what I can do with my code.” They see the GPL as promoting one viewpoint about users’ rights at the expense of their own - “GPL is about freedom of code not freedom of choice... developer is forced to make it free.” They repeatedly expressed concern regarding whose freedoms were most important, users or developers, and whether “political views” were entering the license revision process. The GPLv3 was seen as extending restrictions on how people used software code to promote the agenda of the FSF – “I don’t want to take freedoms from my customers... new clauses in GPLv3 remove freedoms of how you can use the software. I don’t agree with that.” “Software licenses shouldn’t put restrictions on hardware vendors.”

Free and Open Source Software Violates 235 MSFT Patents

Fortune Magazine has an article in which  Microsoft General Counsel Brad Smith, and licensing chief Horacio Gutierrez assert that free and open source software ("FOSS") such as Linux infringe 235 Microsoft patents. More specifically,

[Gutierrez] says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

Another controversy worth watching.

GPLv3 Draft - Overreaching?

Earlier in this series of blogicles regarding the 3rd draft of the GPLv3 open source license, attorney Ed Walsh cautioned those who are considering using this license should it become final while incorporating certain provisions of section 11 (Patents). These provisions are a response to the Microsoft-Novell deal regarding patent licenses and software distribution.

Others have weighed in with similar observations. The Association for Competitive Technology has published white papers extremely critical of the new draft. These publications provide a legal analysis of the relevant portions of section 11 of the latest GPLv3 draft. ACT has published Richard Wilder's white paper, "GPLv3: The Legal Risks of Overreaching for Third Party Patent Rights."

Wilder's bottom line is this:

Those participating in the drafting and consultation process, or that plan to use GPLv3 once it is issued, should give careful consideration to whether such amendments do more harm than good by selectively overreaching for third party patent rights. There is no issue with those who choose to develop and distribute under the GPL to commit their own copyrights and patent rights in their contributions to the program they are distributing. But it is quite another for the GPL to seek to reach out and attempt to force third parties to surrender patent rights that they hold based on work and investment unrelated to development of contributions to GPL code. Particularly when the terms of the GPL are revised selectively to target specific parties, undo their perfectly legal contracts, or forge a broad agreement not to do business with such parties, this calls into question the legitimacy and enforceability of the GPL, and unwittingly may create new liabilities for its drafters and users. It also is a direct attack on the freedom of developers and companies to work together - seeking to undo or frustrate efforts to build bridges between the two worlds of open source and proprietary software.

If paragraphs 4 and 5 are retained in the final draft, those intending to use the GPLV3 should get the advice of legal counsel before doing so and possibly incurring significant liabilities.

GPLv3 Draft - Ed Walsh on the Anti-Microsoft-Novell provisions

To say that the anti-Microsoft-Novell provisions of the draft GPLv3 are controversial is a major understatement. I asked Ed Walsh, an attorney at Wolf Greenfield & Sacks whose practice includes advising on issues relating to open source licensing, about paragraphs 4 and 5 of section 11 (Patents) of the GPLv3. Here's what Ed told me:

The anti-Microsoft/Novell clauses are different in kind than anything that has appeared before and require a new risk assessment. Rather than merely allocate rights, those clauses are intended to encourage active participation in disrupting an existing agreement and in general promote a boycott of buying patent licenses.

Those clauses flirt with conduct that would, in other contexts, be called "tortious interference with contract," "inducing infringement" and "an agreement in restraint of trade." Most for-profit companies would not allow their employees to make such agreements as part of a trade group or industry consortium, so the unintended, as well as the intended, consequences of these clauses should be given special attention.

As noted previously in this series, there are many other open source licenses that may be more appropriate than the GPLv3 in its current form. Anyone contemplating adopting GPLv3 should seek legal advise before doing so.

 

GPLv3 Draft - License or Contract

The latest discussion draft of the GNU General Public License has been strongly criticized for its position on the Microsoft-Novell deal in which Microsoft agreed not to assert whatever patent rights it might have. The Association for Competitive Technology has published white papers extremely critical of the new draft. These publications provide a legal analysis of the relevant portions of section 11 of the latest GPLv3 draft.

Richard Wilder and Noah Clements argue in GPLv3 is a Contract and Why it Matters that the GPLv3 draft contains provisions more like contract terms rather than provisions based on copyright law. Their detailed analysis is summed up this way:

Paragraph 4 of Section 11 is aimed squarely at Microsoft and states that a patent owner that grants a patent license that enables software covered by the GPLv3 to be used or conveyed is “automatically extended to all recipients of the covered work and works based on it.”1 The FSF recognizes that the GPL had no direct influence on Microsoft as they would not “convey” a work covered by the GPL. That is, Microsoft is not threatened by the loss of a license under the GPL if they do not comply with its requirements. Accordingly, the FSF drafted Paragraph 4 to require the automatic grant of a license to all recipients of a covered work if they “convey, or propagate by procuring conveyance of, a covered work.” The flaw in this provision is two-fold. First, Paragraph 4 is a contract term, not a license term. Because Microsoft and companies like them are not parties to the contract, they are not bound by it. Second, while aiming at Microsoft and the Microsoft-Novell agreement, the FSF has hit a much broader target that threatens the ability of the proprietary and open source communities to work together productively.

Those interested in the details and the specifics of their analysis can read the paper (6 pages).

GPLV3 Draft - One Attorney's Opinion

I asked Ed Walsh, an attorney whose specialties include open source software licensing, about current discussion draft of the GPLv3 license. Ed is an attorney with well-respected IP law firm Wolf, Greenfield & Sacks. Here's what he told me:

A summary of the way this draft balances concerns of competing constituencies can be found in the words of the drafters themselves, who state:

“Software patenting is a harmful and unjust policy, and should be abolished.” 

With this philosophical bent clearly evident, it is hard to detect anything that should make businesses that own patents more comfortable about using software covered by the GPL.  Rather, it should raise concerns that GPL licensed code is incompatible with objectives of for-profit business, or at the least trigger an awareness that the rules of Open Source have changed and it is time to re-evaluate both decisions whether to use open source and practices around how it will be used.

The suggestion that the requirement to grant patent licenses has been limited by a "contribution based licensing" is misleading because "contributions" are defined in GPLv3 to include the entire work, unless the work conveyed is a verbatim copy of a work made by someone else.  Anyone who obtains a copy of the program or any portion of it is licensed.  The license even applies to patents not in existence or owned when the work is conveyed.  Further, new definitions of a "covered work" and "conveyance" expand the reach of the GPL beyond software or software distribution and likewise expand the situations in which a patent license must be granted.

If the current draft becomes final without significant changes in section 11 (Patents), inventors, entrepreneurs, investors, and other interested parties should be wary of relying on GPLv3. There are, of course, other open source licenses besides the GPL, and concerned parties should probably evaluate these licenses as well if open source is a part of their business strategy.

Back in January, Ed gave a presentation on Open Source Software: Issues for Start-ups to the Boston Entrepreneurs' Network that surveys the kinds of issues that should be taken into account. For the avoidance of doubt, this presentation had in mind GPLv2, and not the current v3 draft.

GPLv3 Draft - Firestorm of Criticism

The third discussion draft from the Free Software Foundation of the GNU General Public License v. 3 (GPLv3) has been out for a few weeks. This draft has ignited a firestorm of criticism by some who object to language in this draft intended to prevent deals such as that between Microsoft and Novell in which Microsoft agreed not to assert any patents it might have covering Suse Linux which Novell distributes under an open source license.

Paragraphs 4 and 5 of section 11 have drawn the most criticism (more Wednesday):

Draft GPL V3 and DRM

The Free Software Foundation today released its revised draft of the General Public License V3 for comment. The GPL is one of several licenses available for the distribution and use of copyrighted works although it's typically used with software. This version of the GPL has been controversial in at least two regards: Rights Management and Patents. Let's begin by documenting the GPLv3's position on DRM.

Under the terms of the draft GPLv3 authors and distributors of  DRM software cannot use GPLv3 as a licensing framework, that DRM software (and presumably hardware) cannot be used to restrict the use of the covered software, and that laws such as the DMCA will not be asserted against those who circumvent  DRM measures to access, use, and/or modify the software covered by the GPLv3.

Here's the specific language:

GPLv3 Draft Due Out Wednesday

CNET reports that the next version of the General Public License v3 (GPLv3) from the Free Software Foundation is due out tomorrow. 

The timing pushes back by about three months the original deadline of March for a new version of the license. One reason for the delay was the announcement of a patent deal between Microsoft and Linux seller Novell under which Microsoft agreed not to sue Novell Linux customers for patent infringement. The most recent draft wouldn't have prohibited releasing GPL software under such conditions, but FSF founder Richard Stallman said the group would find a way to prohibit it.

Stay tuned.

Did Lessig Endorse DRM?

The Register (UK) reports that Lawrence Lessig of Creative Commons fame has endorsed DRM, or at least Sun's open source DRM efforts, the Open Media Commons. The endorsement is in a press release announcing release of code and specifications for OMC DRM.  The release quotes Lessig:

Lawrence Lessig, Chairman of the Board of Directors of Creative Commons and Professor of Law at Stanford Law School: "In a world where DRM has become ubiquitous, we need to ensure that the ecology for creativity is bolstered, not stifled, by technology. We applaud Sun's efforts to rally the community around the development of open-source, royalty-free DRM standards that support "fair use" and that don't block the development of Creative Commons ideals."

However, Lessig strongly qualifies this assertion here.

Sun To Publish Specs For Opensource DRM

TechWeb reports that Sun will soon publish Open Source DRM specs. Snippet:

The open-source project is under Sun's Open Media Commons (OMS) initiative to license content to individuals rather than machines, such as cellular phones, MP3 players, PCs and set-top boxes. "The specifications need more work before they can ship, but there are many startups that would have shipped them a long time ago," said Tom Jacobs, director of research at Sun Labs, and project lead for Open Media Commons. "We think it will take between 12 and 18 months to complete, but in reality we will have specs in which independent companies can either modify existing products or build new ones before the end of the year."

It's good to see the Open Source community embracing DRM. Open Source DRM in use is even better.