1. A Lawyer Looks at the Open Source Revolution Robert W. Gomulkiewicz Director, Intellectual Property Law & Policy Program Associate Professor of Law University of Washington School of Law

2. Overview What is “open source” software? Who makes it? How is it developed? Is it new? Who uses it? How does licensing fit into the picture? Reflections on SCO litigation

3. What is “open source” software? source = software in source code form open = freedom to: View the source code Run the software for any purpose Modify the software in any way Distribute the software and any modifications Software development model Philosophy—share and collaborate Licensing Model

4. Contrast to “Proprietary” or “Commercial” Software Hold source code as trade secret Code distributed in object code form Limited derivative works rights licensed

5. Other Labels for “Open Source” Free software Copyleft Community software Public software

6. What is “Shared Source?” Microsoft’s response to success of Open Source Recognition that some constituencies do need increased access to source code Large end users ISVs and IHVs Governments Universities

7. Who Makes Open Source Software? Hackers (not crackers) Hacker notables Richard Stallman (Free Software Foundation) Eric Raymond (The Cathedral and the Bazaar, Homesteading the Noosphere) Linus Torvalds (Linux) Bruce Perens (Open Source Definition)

8. How is it Developed? Scratching an itch Collaborative development Peer review Centralized decision-making “Given enough eyeballs, all bugs are shallow” Eric Raymond Forking

9. Is Open Source a New Idea? Software shared traditionally by hobbyists and scientists Internet makes sharing and collaboration more efficient Watershed event: Netscape licenses Communicator under open source license Linux+Apache becomes popular as web server Eric Raymond the software evangelist

10. Who Uses Open Source Software? At first: hackers Now: lots of people Internet backbone: Apache, Sendmail, BIND Linux I.B.M., Intel, Apple, H.P., Sun Commercial businesses Federal and state governments E.g., China, Mexico, Indonesia, Japan, Germany

11. Who does not use it much (yet)? Average desktop PC user Businesses worried about who stands behind code and TCO Developers and users worried about IP contamination

12. Open source software as a business “Think ‘free speech,’ not ‘free beer’” Richard Stallman Branded distributions Sell hardware, give away software Sell services and support Dual versions Dual licensing Value added software Sell sponsorships Sell ads and T-shirts

13. Licensing: the Force behind open source “Free” and “open” is not: Public domain Copyright “first sale” Shareware or freeware Licensing makes it work Control over use Risk shifting “To stay free, software must be copyrighted and licensed.” Debian GNU/Linux Group

14. Open source licensing models GNU General Public License BSD-style license Other models: Mozilla I.B.M., Apple, Intel, RealNetworks, etc. Artistic license GNU Lesser GPL Open Source Initiative (opensource.org)

15. BSD-style license Key terms: License grant: unlimited use, modification, distribution No warranties; disclaimer of consequential damages No endorsement Attribution

16. GNU General Public License Key terms: Unlimited right to run program Unlimited access to source code Unlimited right to distribute verbatim copies May create derivatives IF you agree to make the derivatives “free” What is a “derivative” When does “free” mean “no charge”? License is “viral” No warranties; disclaimer of consequential damages

17. SCO litigation SCO sues I.B.M. for including UNIX code in its Linux distribution; Red Hat sues SCO for declaratory judgment Sun, Microsoft, and others pay license fee to SCO SCO approaches Linux end users about paying royalty (some pay, some get sued)

18. SCO litigation: broader issues Who should bear risk of intellectual property infringement for Open Source software? Do Open Source development practices adequately screen for infringing code? Is the GNU General Public License enforceable?

19. SCO litigation: some reflections It was just a matter of time If there is an infringement problem, it may be fleeting How will the Open Source Community respond? Treat SCO lawsuit as aberration Improve development practices Business opportunity?

20. Other resources Robert W. Gomulkiewicz, De-bugging Open Source Software Licensing, 64 U. Pitt. L. Rev. 75 (2002) Robert W. Gomulkiewicz, How Copyleft Uses License Rights to Succeed in the Open Source Software Revolution and the Implications for Article 2B, 36 Hous. L. Rev. 179 (1999)

21. Questions?