Open Source Law, Policy and Practice

Cover
Open Source Law, Policy and Practice
Copyright
Dedication
Dedication
Contents
Foreword
Abbreviations
Contributors
Table of Cases
Table of Legislation
1 Open Source as Philosophy, Methodology, and Commerce: Using Law with Attitude
1.1 Introduction
1.2 The Legal Treatment of Software
1.3 Open Source as Philosophy and Politics
1.4 ‘Open’ What?
1.5 Open Source as Development Methodology
1.6 Open Source as Commerce
1.7 Enforcing Open Source
1.8 Open Futures
2 Evolving Perspective on Community and Governance
2.1 Collaboration and Communities
2.2 Intellectual Assets to Intellectual Property
2.3 Intellectual Property and Industrial Scale
2.4 Early Experiments under Copyright
2.5 The Start of an Engineering Economic Model
2.6 Open ​Source as a Shared Production Model
2.7 Open Source Culture
2.8 Licences to Facilitate Collaboration
2.9 The Politics and Ethics of Open Source
2.10 The Free Software Definition
2.11 The Open ​Source Definition
2.12 Open Source Initiative, a Pragmatic Community
2.13 Pragmatism versus Ethics
2.14 The Apache Software Foundation
2.15 Governance of Open Source
2.16 People versus Process
2.17 The Benevolent Dictator Governance Model
2.18 The Meritocratic Governance Model
2.19 Implications of Licence Choice and IP Management on Governance Models
2.20 The Rise of Codes of Conducts
2.21 The Business of Open Source
2.22 Open Source Non-​Profits
2.23 Conclusion
Part 1 Intellectual Property, Corporate, and Governance
3 Copyright, Contract, and Licensing in Open Source
3.1 Copyright and Software
3.2 Forms of Open Source Licensing
3.3 Software Interaction and Licence Compatibility
3.4 Interpreting Open Source Licences: Contract or ‘Bare Licence’?
3.5 What Makes a Software Licence ‘free’ or ‘open source’?
3.6 Conclusion
4 Contributor Agreements
4.1 Project Licence Agreements
4.2 Types of Inbound Agreements for Open Source Projects
4.3 Employee Contributions
4.4 Practical Advice
5 Copyright Enforcement
5.1 Introduction
5.2 What is Copyright Infringement and What Claims Can Be Made?
5.3 Enforceability of Open Source Licences and Termination Provisions—​How?
5.4 Why is Copyright in Open Source so Consistently Enforced in Germany?
5.5 Who Can Enforce Copyright in Open Source?
5.6 What Are the Key Arguments and Alleged Infringements?
5.7 New Trends
6 Transforming the Supply Chain with Openchain ISO 5230
6.1 Overview
6.2 Compliance is a Process Challenge that Spans Multiple Organisations
6.3 Because No Single Company Makes a Finished Device, No Single Company Can Solve Compliance Challenges
6.4 The Best Solutions Are Often the Simplest, with the Lowest Barriers to Entry
6.5 OpenChain ISO 5230 is Intended to Make Open Source Licence Compliance More Predictable, Understandable, and Efficient for the Software Supply Chain
6.6 A Simple Specification that Explains the Key Requirements of a Quality Compliance Program
6.7 A Clear and Free Way to Check Conformance with the Specification
6.8 Reference Material to Support Conformance and with Broader Questions of Training and Processes
6.9 Community and Support
6.10 Conclusion
6.11 References
7 SPDX and Software Bill of Materials ISO/IEC 5962L 2021
7.1 Why Create a Software Bill of Materials?
7.2 What is an SPDX Document?
7.3 Listening to the Open Source Community Needs
7.4 Tooling and Best Practices to Make it Easy for Developers
7.5 Adoption of SPDX Documents
7.6 Future Directions
8 Corporate Concerns: Audit, Valuation, and Deals
8.1 Introduction
8.2 Why Understanding Open Source is Important in the Corporate Context
8.3 Open Source Audit Services
8.4 Valuation
8.5 Issues Arising on M&A
8.6 Investment in Open Source Businesses
8.7 Insolvency
8.8 IPO
9 Trademarks
9.1 Introduction
9.2 Trademark Law Basics
9.3 Open Source Projects, Products, and Services
9.4 The Community Role in Open Source Trademarks
9.5 Lawful Use of Others’ Trademarks
9.6 Attempts to Limit Competition with Trademarks
9.7 Conclusion
10 Patents and the Defensive Response
10.1 Patents and Software
10.2 Patents 101: Why Are Patents Relevant to Open Source?
10.3 Patents and Open Source Interactions
10.4 How Open Source Deals with Patents
10.5 Patent Busting and Patent Pools
10.6 Patent Litigations Initiated Against Open Source
10.7 Conclusions
11 Open Source Software in Standard Setting: The Role of Intellectual Property Right Regimes
11.1 Introduction
11.2 Results from the Literature
11.3 Insights from Case Studies and Stakeholder Consultation
11.4 Compatibility of Intellectual Property Regimes in Standards Development Organisations and Open Source Software
11.5 Conclusion
12 Export Control
12.1 Introduction
12.2 Export Control Checklist
12.3 Case Study: Application of Export Control Regimes to Open Source in the US
12.4 Survey of Export Control Regimes
12.5 Recommendations
13 Open Source Software and Security: Practices, Governance, History, and Perceptions
13.1 Open Source and Security: Myths and Reality
13.2 Open Source Security Governance: Vulnerability Discovery, Patching, and Disclosure Practices
Part 2 The Business of Open: Economics, Open Source Models, and Usage
14 Sustainability and Open Source
14.1 From Human-​Centred Design to Community-​Centred Design
14.2 The City of Amsterdam Case
14.3 The Emissions Problem and the Role and Complexity of Supply Chains
14.4 The Carbon-​Negative Data Centre Blue Print
14.5 UN Sustainable Development Goals and Open Data
15 Economics of Open Source
15.1 The Economics of Open Source
15.2 Introduction: Open Source, Law, Politics, and Economics
15.3 Why is Free Software Free?
15.4 Software Freedom and Open Collaboration
15.5 Differentiate or Collaborate!
15.6 Joint Stewardship and Governance
15.7 Contributions, Copyright, and Participation
15.8 Communities, Contributors, and Merit
15.9 Value at the Edge of the Commons
15.10 Open Source-​Related Products and Service
15.11 The Benefits of Open Source in a Business Context
15.12 Differentiating in the Eyes of the Consumer
15.13 The Role of the Volunteer Community
15.14 Competition in the Wider Open Source Community
15.15 Compliance, Social and Market Transactions, and Zero Price
15.16 Open Source as Community-​Provisioned Public Good
16 Business and Revenue Models and Commercial Agreements
16.1 Introduction
16.2 What is Open Source?
16.3 Business Models and Open Source
16.4 Commercial or Business Models
16.5 Cloud and Open Source in the Last Few Years
16.6 Standards and FRAND
16.7 Open Source Business Models—​Diversity and Success
16.8 Measuring Success and the Values of Open Source
16.9 Open Source and Commercial Contracts
17 Antitrust, Competition, and Open Source
17.1 Introduction
17.2 Abuse of Dominant Position
17.3 Merger Control
18 Foundations and Other Organisations
18.1 Governance versus Foundations
18.2 The No-​Foundation Solution
18.3 Charities
18.4 Trade Associations
18.5 Aggregating Foundations—​Fiscal Sponsors
18.6 Corporate Initiatives
18.7 A Note of Licensing and Foundations
18.8 Co-​option, Funding, and Confusion around Corporate Models
18.9 Need for Organisational Diversity
19 The Rise of the Open Source Program Offices (OSPO)
19.1 The Beginning
19.2 Should You Start An Open Source Program Office (OSPO)?
19.3 The Role of an OSPO, Model Options, and Where Should We Build It?
19.4 How Did OSPOs Get Started and the What is the ToDo Group?
19.5 What is the Impact of an OSPO on an Organisation?
19.6 How to Get Started in Creating Your Own OSPO?
19.7 Conclusion and Attributions
20 Cloud Native Development, Containers, and Open Source Licensing
20.1 Overview of Linux Containers
20.2 Containers and the Scope of Copyleft
20.3 Container Images and Source Code Compliance
20.4 Identifying the Licence of a Container
20.5 Containers and Network Services Copyleft
20.6 The Rise of ‘Source-​Available’ Licences Targeting Cloud Service Providers
21 Public Sector and Open Source
21.1 Introduction
21.2 The International Context—​The WTO
21.3 The European Procurement Law Context
21.4 Issues in Software Procurement
21.5 The UK
21.6 The US
21.7 Conclusion
Part 3 Everything Open
22 Blockchain and Open Source
22.1 Blockchain Systems
22.2 Protocols and Clients
22.3 Forking
22.4 Code Review
22.5 Bitcoin Client Licence Analysis
22.6 Ethereum Client Licence History
22.7 Ethereum Client Licence Analysis
22.8 Conclusions
23 Open Hardware
23.1 Introduction
23.2 What is Hardware?
23.3 A Brief History
23.4 The Open Source Hardware Definition
23.5 Hardware and Reciprocity (Copyleft)—Intellectual Property
23.6 Hardware and Other Forms of Intellectual Property Right
23.7 Specific Open Hardware Licences
23.8 Non-copyleft Hardware Licences
23.9 Open Source Hardware: Development Models
23.10 Conclusion
24 Open Everything
24.1 Freedom to Use, Study, Modify, and Share
24.2 Open Governance
24.3 Anti-​Lock-​In
24.4 Interrelationship Between Opens
24.5 Openness and Intellectual Property Rights
24.6 Definitions of Openness (and Freedom) in Software
24.7 Open Knowledge
24.8 Open Data
24.9 Open Content
24.10 Creative Commons
24.11 Other Documentation Licences
24.12 Open Hardware (and Open Source Hardware)
24.13 Open Data
24.14 Open Software Services
24.15 Open Politics and Open Government
24.16 Open Standards and Open Specifications
24.17 Open Innovation
24.18 Open Publishing, Open Education, and Open Access
24.19 Summary
Appendix
Index