Copyleft Currents

Linux Foundation has launched a directory of compliance officersat companies using Linux and other open source software.  The directory allows the owner of open source code to contact the correct person at the company if he or she thinks the software is being used by that company in violation of the license.

This, combined with the SFLC’s practice of requiring free and open source compliance officers in settlements of open source enforcement cases, has created a new job description — which is probably lucky for anyone reading this blog.  We can all use job security in these uncertain times.

On a more serious note, this is not unlike giving the Secretary of State information about service of process for your company.  While it might seem like painting a target on your back, it actually helps avoid a claim being communicated to someone at your company who does not act on it, or has no authority to act on it.

 

An order was handed down in the Southern District of NY in the Busybox case against one defendant, Westinghouse Digital Electronics.  The defendant defaulted on the litigation by failing to answer discovery requests, because it was in the process of going out of business.  The judge awarded statutory damages, attorneys fees, and injunctive relief.

Although the order characterizes the damages as “treble,” that was only true in the sense that the court awarded three times the upper limit of  statutory damages in the absence of wilfulness. The better characterization is enhanced damages — a court can in its discretion award up to $150,000 per work in statutory damages if the infringement is wilful. This is not the same as triple actual damages that are available in some other contexts (like wilful patent infringement); the court did not make a finding of actual damages because the defendant failed to respond to discovery and thus never presented evidence to support calculation of actual damages.

Also, as described in footnote 39, absent the default, statutory damages might have been less because the plaintiff failed to timely register the copyright.  Given that most software authors do not register their copyrights, this may often be a significant limitation in claims enforcing open source licenses.

The most interesting thing about this case is the issuance of the injunction. Also, to my knowledge, it is the first award of statutory damages for violation of an open source license.  Jacobsen v. Katzer confirmed that a claim for violation of a license could be pled as a copyright infringement claim. With that as a given, statutory damages or injunction could be available in the appropriate circumstances. 

Attorneys’ fees were also awarded, but that was because of the default.

GNOME released a census of the demographics of its open source contributors.  (NB: Viewing a copy requires one to enter one’s email address.)  The census reported that the top 40 individual developers contributed about 30% of the changes.  Over 70% of contributors reported that they contributed on their own time, but paid developers (i.e. the remaining 30%) contributed 70% of commits. 

The survey certainly bears out my own general experience and impression of open source development.  While open source projects many have many contributors, most projects are primarily written by a small group of contributors.  Also, while open source may be the mythical sandbox of hobbyists, in reality it is mostly the work of developers employed full time by technology companies.  As to the stratification of paid versus unpaid developers, the report itself states that the figures may be inherently a bit inaccurate.  I would add that based on my experience counseling clients, many paid developers would be likely to self-report that they are unpaid, when they are contributing “on their own time”  – whatever that may mean in our type-A, Silicon Valley workscape.

The European Legal Network has released a document addressing what kind of software interactions create derivative works — primarily relevant to the interpretation of the General Public License.  “The aim of this document is to provide some general guidance to lawyers and developers working with free software to understand the technical and (potentially) legal effects of the interaction or interoperation of two programs together.”  The document was created by a Special Interest Group made up of delegates from the European Legal Network, which is “a neutral, private network of legal professionals facilitated by FSFE.”

A recent story in the New York Times discusses the lobbying efforts of Open Forum Europe.  The lobbying effort focuses on the issuance of the European Interoperability Framework, which contains recommendations by the European Commission regarding the purchase of software by EU national and local governments — which constitutes an estimated market of over $15 billion.   The release of this document is scheduled by the end of 2010.   Several drafts of the document are available on FSFE’s web site.  The NYT article also discusses the effect on Microsoft’s effort in Europe.

Mozilla has submitted an iPhone App that is not Firefox, exactly, but dovetails with Firefox features.  One of the cooler features, discussed at the Summit today, was Firefox Sync, which lets Firefox users access the history, bookmarks, and open tabs across stationary computers and mobile computing devices.  Apple has previously had a policy that effectively excluded browsers as apps, but it nevertheless approved an Opera app.

Just a quick post to say that I am at the 2010 Summit and it is very exciting to see what is on the drawing board at Mozilla — which is metophorical of course, because it is really the drawing board of a huge community of worldwide developers.  If you want a little bit of vicarious participation, check out the Twitter Flickr etc. feed.

Washington DC will launch a test of OSDV’s software, for overseas voters.    The District of Columbia’s Board of Election and Ethics (BOEE) announced that they will adopt OSDV’s TrustTheVote technology as part of a digital “Vote by Mail” ballot transport service pilot project for overseas ballots.  OSDV’s John Sebes blogs about it here.   Sebes explains that the D.C. pilot is not “online voting” per se, but a test of an additional form of digital transport for return of blank ballots.   Absentee ballots can already be obtained digitally via email or web, and returned via email or fax. 

The Navy Times reports, “During the November 2008 election, some 2,800 D.C. voters were sent ballots overseas, but fewer than half were actually returned and counted. Almost 300 were not counted because of problems like a voter forgetting to sign the envelope, and 36 were too late. The new system could help fix some of those problems.”

If I may be allowed a brief editorial comment — mindful that I have worked with OSDV as a client — Yay, team!

I hate to say I told you so; see post of 6/1.  GNU Go was pulled from the iPhone app store.

 Over the past few months, there was a kerfuffle in the open source world over Google’s licensing of WebM, a video codec license — resulting in a revision by Google of the codec in early June. 

What happened raises some very complex issues in open source licensing — surrounding implied patent licensing and license proliferation.

Google’s original release of WebM contained a patent termination clause that terminated both the patent license and the copyright license.   Google then revised the license terms, and now everyone is happy.  (Maybe.)

When discussing media formats, royalty-free refers to patent claims; in comparison, using formats like MP3 and MPEG-4 requires the licensing of patent rights from patent holders like Thomson and representatives, such as MPEG-LA, of the various patent holders. 

When it comes to media codecs, many people are confused by the label “open source,” because the term is often used erroneously to mean an open standard.   “Open standard” has no universally accepted definition, but is usually refers to standards with no known patent claims, or where all known claimants have agreed to license their patents royalty-free. 

A particular media format may have many different implementations, and in many cases some implementations are open source and some are not.  The implementation is code; the standard is a description of how the code should process media files in the format.

WebM, a royaty-free media file format, embodies the Vorbis audio format and the VP8 video format — the latter of which was developed by On2, a company that was officially acquired by Google in 2010.  The software codec implementing WebM is an open source software project stewarded by Google, which is licensed under a open source BSD  type  license.  Reporting of the re-licensing in the press was the usual tangled web of misinformation and inaccuracy that always seems to attend any patent subject, particularly in the open source world.  But apparently Google, like many companies, was concerned about the effect on its patent position of releasing code under BSD alone. 

The problem with open source licenses, from the patent point of view, is that none of them contain what lawyers call “reservations of rights” or disclaimers of implied licenses.  So, even a license like BSD, which has no express patent grant, may be interpreted to grant some patent rights.  See FSF’s slides about this issue here.  This issue is not necessarily resolved by those licenses with express patent grants, like Apache 2, because they do not contain reservations of rights not expressly granted — a clause ubiquitous in proprietary licenses.  So, some posit that additional implied rights may be granted, beyond the express grant.  (GPL v3 actually states this expressly in Section 11.)  Others would argue that it is highly unlikely that additional licenses would be implied when an express grant exists.  The law on implied patent licensing is unclear, and when the law is unclear, companies react conservatively.  So most companies releasing code under open source licenses are concerned that by doing so, they have unwittingly granted rights in patents beyond those covering inventions embodied in the code.

Contrary to popular paranoia in the open source community, most companies who release open source code do not worry about reserving rights in their patents because they want to sneakily sue the average hobbyist, or even open source users, for patent infringement.  They are more concerned about getting sued themselves, and not having any patent weapons to protect themselves.  Most companies use their patent portfolio substantially for defensive purposes– as a tool for mutually assured destruction to keep their competitors from suing them.  Competitors acting in similar markets have a hard time avoiding each other’s patents.  Thus, BadGuy sues GoodGuy for patent infringement, based on GoodGuy’s open source software release.  (Similarities to the Jacobsen case are not coincidental.)  GoodGuy tries to countersue for infringement of its own patents, but BadGuy claims that BadGuy has a license to GoodGuy’s patents, because they are implicitly licensed under the open source license.  Because the extent of the implied license is unclear, this creates a monkey wrench that BadGuy can use to make the patent litigation more complicated and expensive — forcing GoodGuy to settle and pay for a license. 

This issue is particularly thorny for permissive licenses like BSD, because their requirements are so limited.  So it is easy for BadGuy to claim to be operating under the benefit of an implied license — BadGuy is not even required to abide by copyleft to claim this benefit.

While patent termination clauses exist in almost every open source license that contains an express patent grant, most only terminate patent licenses. 

Placing this all in context, Google released WebM under a BSD type license, but included a patent termination provision similar to that in Mozilla.  After much hue and cry, Google then released the codec under pure BSD, with a separate patent grant. 

Chris DiBona’s blog about the re-release is here.  He states, “Using patent language borrowed from both the Apache and GPLv3 patent clauses, in this new iteration of the patent clause we’ve decoupled patents from copyright, thus preserving the pure BSD nature of the copyright license. This means we are no longer creating a new open source copyright license, and the patent grant can exist on its own.”

Google’s licensing FAQ on WebM is here. 

The blog says this means Google has not created a new license, but that is a philosophical question.  Does an additional patent grant outside of the scope of a copyright license in fact create a new license?  It is also unclear whether a new license is necessarily a bad thing.  The corporate world of open source enthusiasts seems to be demanding a license with a reservation of rights to clarify the scope of its patent grant, but no such license exists.  While there is much furor in the open source world about the problem of “license proliferation,” that problem means different things to different people.  Is the sheer number of licenses a problem?  The fact is that very few of them are actually used widely.  Proprietary software, in comparison, has a nearly infinite supply.  Or is it a problem that open source licenses tend, as a rule, to be opaquely drafted and difficult to interpret?  Or is it a problem that every license is not GPL?  Well, OK, only FSF thinks the latter.

Author’s note: Apologies for the lateness of this post.  Now I know how to use the “Draft” feature.