The first day of the Open Source Think Tank has been very productive. Alexander Aitken of Olliance Group and Alexandre and Celine Zapolsky (both of Linagora) have done a great job in organizing the conference. The discussion has quite different from our Napa Open Source Think Tank and emphasized the differences between the US and EU software industries. For example, system integrators are the primary contact for European customers in contrast to the United States where the software vendor frequently has direct contact with the customers.
During the brainstorming, my group identified two major challenges for the open source market:
1. The rejection in the EU of commercial open source companies by many customers because they are not viewed as "true open source". Based on the discussion, a significant number of customers in the EU identified "open source software" as a product which is community supported and preferably has multiple service providers providing support to licensees. Clearly, this position poses a significant challenge to many of the US commercial open source vendors which use a dual distribution model based on a commercial product with more functionality than the open source version.
2. The reluctance of major corporations to "openly" contribute to projects. Although many major corporations do contribute to open source projects, they frequently do so in an indirect manner so that their contribution cannot be associated with them. If the corporation does not contribute its improvements to the open source project, then the community and all licensees will not be able to take advantage of the changes. If the corporation contributed indirectly, the open source project misses the legitimacy which open support would confer. Although this reluctance can be based on valid legal concerns, these concerns appear to be exaggerated.
More tomorrow!
Monday, September 22, 2008
Friday, September 12, 2008
Open Source Think Tank: Paris September 21-23, 2008
I wanted to alert you to the Open Source Think Tank this month in Paris Sept 21-23, in conjunction with the Paris Capital du Libre conference. It takes a lot to pull me away from Northern California during the grape harvest, but this event will be great. As in the United States, the Open Source Think Tank is the only by-invitation gathering where leading global experts will come together to collaborate on the issues facing commercial open source. Like the Open Source Think Tank in Northern California, the format will focus on brainstorming sessions, CIO panels and networking activities. We expect that all attendees will actively participate. We have a great agenda and confirmed list of attendees, and unique networking activities including a private reception at the Paris Chamber of Commerce and the main event - wine tasting and dinner while cruising down the Seine through Paris. We have some great speakers including Marten Mickos and Larry Augustin. You can learn more at http://thinktank.olliancegroup.com/. If you need an invitation, please contact Andrew Aitken at andrew@olliancegroup.com.
I have participated with Andrew in all of the prior Open Source Think Tanks and they are great events. They provide an opportunity for everyone to work together in small and large brainstorm groups, addressing the future of open source. The Think Tank will also ensure that you have great opportunities to network with your fellow attendees. In Paris, the first night we will have a reception at the Paris Chamber of Commerce and the second night main event, wine tasting and dinner while on a barge cruising down the Seine through Paris
Most of the attendees of our annual Napa events have said it was either the best or one of the best events they have ever attended and we have almost 100% return attendance. In Paris, the schedule will include analyst meetings, press events (Sun and Jaspersoft and some of the other attendees are planning announcements) and a meeting of North American ISV and European SI/VAR.
I hope to see you there!
I have participated with Andrew in all of the prior Open Source Think Tanks and they are great events. They provide an opportunity for everyone to work together in small and large brainstorm groups, addressing the future of open source. The Think Tank will also ensure that you have great opportunities to network with your fellow attendees. In Paris, the first night we will have a reception at the Paris Chamber of Commerce and the second night main event, wine tasting and dinner while on a barge cruising down the Seine through Paris
Most of the attendees of our annual Napa events have said it was either the best or one of the best events they have ever attended and we have almost 100% return attendance. In Paris, the schedule will include analyst meetings, press events (Sun and Jaspersoft and some of the other attendees are planning announcements) and a meeting of North American ISV and European SI/VAR.
I hope to see you there!
Tuesday, September 9, 2008
DEMO: Web 3.0 and Beyond
I have been attending DEMO on San Diego since Sunday. The presentations have been lively and the six minute limit ensures a brisk pace. Having worked with startups for over 25 years, I was impressed by the maturity of the “demos”. The presenters manage to get their message across (frequently with a few jokes).
Many of the companies focus on “Web 3.0” (and one company claimed to be the first Web 4.0 company). Two of the most interesting companies provided solutions to the problem of user generated content: how do encourage users to continue to contribute without any income. They combined the web’s capability for distributed collaboration with micropayments. This combination could be very powerful, enabling user generated content to go to the next level: income generation.
Photrade (http://www.photrade.com/) has developed the infrastructure to permit photographers to share, store, protect and license their photographs to advertisers and web publishers. Photographers get paid for each view of their photos.
MixMagicMusic Service (http://www.mixmatchmusic.com/) provides all the tools needed for musicians to collaborate online. They can also communicate with fans and sell their works. It includes a Remix Wizard to permit fans to create music mashes.
However, some of the most interesting companies were not material companies, but more about that later
Many of the companies focus on “Web 3.0” (and one company claimed to be the first Web 4.0 company). Two of the most interesting companies provided solutions to the problem of user generated content: how do encourage users to continue to contribute without any income. They combined the web’s capability for distributed collaboration with micropayments. This combination could be very powerful, enabling user generated content to go to the next level: income generation.
Photrade (http://www.photrade.com/) has developed the infrastructure to permit photographers to share, store, protect and license their photographs to advertisers and web publishers. Photographers get paid for each view of their photos.
MixMagicMusic Service (http://www.mixmatchmusic.com/) provides all the tools needed for musicians to collaborate online. They can also communicate with fans and sell their works. It includes a Remix Wizard to permit fans to create music mashes.
However, some of the most interesting companies were not material companies, but more about that later
Friday, September 5, 2008
Practical Guide to GPL Compliance: Both Practical and Valuable
The Software Freedom Law Center (“SFLC”) recently published “Practical Guide to GPL Compliance” (“Guide”).
http://www.softwarefreedom.org/news/2008/aug/20/compliance-guide/The Guide is a major contribution to the open source community. It is very clear and valuable explanation about how to comply with the obligations in General Public License Version 2 (“GPLv2”), General Public License Version 3 (“GPLv3”), Lesser General Public License Version 2 (“LGPLv2”) and Lesser General Public License Version 3 (“LGPLv3”) and more generally how to best manage the use of FOSS.
The most critical point made by the Guide is the need to understand what third party open source software is in your software product in order to comply with obligations under FOSS licenses. However, companies should be equally concerned about complying with the terms of upstream proprietary software licenses. The Internet has made numerous software components easily available and my experience is that most software programs now include numerous third party components (both open source and proprietary).
Yet software companies frequently do not have an effective procedure for managing this new reality. This failure can raise significant problems at critical points in a company’s history, such as a financing and a merger. Many acquiring companies regularly perform a software scan of the target company’s software: they will discover these third party components and demand that the target company provide proof of compliance with the upstream licenses (both FOSS and proprietary). The failure to have a procedure for monitoring use of third party software means that the target company must scramble during the merger (or financing) process to prove compliance with upstream obligations. These problems are likely to cause delay in closing the merger (or financing) and, in some cases, may cause a reduction in the price or, rarely, termination of the merger. Recently, I assisted a startup in its sale to a large publicly traded company: the target company had over 100 third party software components of which it was not aware. We had to find a method to comply with the obligations in these upstream licenses in a very short period. The result was costly in management time and legal fees (rush jobs always cost more). In that case, however, the resolution of compliance with the obligations imposed by third party proprietary software component licenses created more problems than the FOSS components licenses.
The Guide is also very valuable for its practical suggestions about how to avoid compliance problems with the GPL such as training multiple developers how to “build” the software and distributing the Corresponding Source with the binary code (rather the alternative of making a written promise to provide the Corresponding Source). The Guide also provides detailed instructions on how to comply with the obligations relating to providing Source Code: the definition of Corresponding Source and the different options available under GPLv2 and GPLv3. For example, one nuanced, but important point is that Corresponding Source under GPLv2 cannot be provided solely by download (although it can be an option), but that option is available under GPLv3.
I strongly recommend that anyone dealing with FOSS compliance should read this guide.
http://www.softwarefreedom.org/news/2008/aug/20/compliance-guide/The Guide is a major contribution to the open source community. It is very clear and valuable explanation about how to comply with the obligations in General Public License Version 2 (“GPLv2”), General Public License Version 3 (“GPLv3”), Lesser General Public License Version 2 (“LGPLv2”) and Lesser General Public License Version 3 (“LGPLv3”) and more generally how to best manage the use of FOSS.
The most critical point made by the Guide is the need to understand what third party open source software is in your software product in order to comply with obligations under FOSS licenses. However, companies should be equally concerned about complying with the terms of upstream proprietary software licenses. The Internet has made numerous software components easily available and my experience is that most software programs now include numerous third party components (both open source and proprietary).
Yet software companies frequently do not have an effective procedure for managing this new reality. This failure can raise significant problems at critical points in a company’s history, such as a financing and a merger. Many acquiring companies regularly perform a software scan of the target company’s software: they will discover these third party components and demand that the target company provide proof of compliance with the upstream licenses (both FOSS and proprietary). The failure to have a procedure for monitoring use of third party software means that the target company must scramble during the merger (or financing) process to prove compliance with upstream obligations. These problems are likely to cause delay in closing the merger (or financing) and, in some cases, may cause a reduction in the price or, rarely, termination of the merger. Recently, I assisted a startup in its sale to a large publicly traded company: the target company had over 100 third party software components of which it was not aware. We had to find a method to comply with the obligations in these upstream licenses in a very short period. The result was costly in management time and legal fees (rush jobs always cost more). In that case, however, the resolution of compliance with the obligations imposed by third party proprietary software component licenses created more problems than the FOSS components licenses.
The Guide is also very valuable for its practical suggestions about how to avoid compliance problems with the GPL such as training multiple developers how to “build” the software and distributing the Corresponding Source with the binary code (rather the alternative of making a written promise to provide the Corresponding Source). The Guide also provides detailed instructions on how to comply with the obligations relating to providing Source Code: the definition of Corresponding Source and the different options available under GPLv2 and GPLv3. For example, one nuanced, but important point is that Corresponding Source under GPLv2 cannot be provided solely by download (although it can be an option), but that option is available under GPLv3.
I strongly recommend that anyone dealing with FOSS compliance should read this guide.
Jacobsen: Critical to Commercial Software and Other Copyright Licenses
Although my earlier post focused on the effect of the Jacobsen decision for the open source industry, the case has significantly broader implications. http://lawandlifesiliconvalley.blogspot.com/2008/08/major-victory-for-open-source-in.html. The court’s reasoning applies to any copyright license which means that it will have an impact on licenses well beyond open source licenses: it will impact licenses for commercial software, books, music, television, and movies. The decision will also be important for licenses which govern the growing amount of user generated content on the Web; such content is frequently subject to standardized licenses, such as those created by the Creative Commons and websites like Wikipedia, which do not involve direct economic consideration. The decision sets forth the basic rule very clearly:
“Copyright licenses are designed to support the right to exclude: monetary damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes rather than as a dollar-denominated fee, is entitled to no less legal recognition.”
Jacobsen deals with the fundamental issue of the appropriate remedy for breach of a copyright license: the basic remedy for breaching a contract such as a license is monetary damages, but under some circumstances a copyright licensor can obtain remedies under copyright law. The courts have established a standard that the breach of obligations that are covenants rather “conditions” or “restrictions” on the scope of the license can only obtain contract remedies. However the line between covenants and “conditions” or “restrictions” has always been murky. The decision provides clear guidance: obligations in a license agreement which are expressly described as a “condition” or, even better, which are introduced by the phrase “provided that” meet the criteria in Jacobsen.
Copyright law remedies include injunctive relief, attorneys fees, actual damages and, potentially, statutory damages. The remedy of injunctive relief is particularly valuable for many licensors because such licensors frequently seek compliance with the terms of the contract. Courts may grant attorneys fees at their discretion and such fee awards can be significant and even exceed the damage awards. Actual damages can be difficult to determine for many copyrightable works and are particularly difficult for breaches of licenses to open source software or other works which are licensed without fee. Statutory damages,on the other hand, are not connected to actual damages and can be as much as $150,000 per copyright for willful infringement and are awarded by the court. However, such statutory damages are only available if the copyright is registered prior to the infringement (or in the case of a recently published work, the copyright is registered within three months of first publication).
Since many open source companies use the dual license model, the decision may be equally important to them for their commercial licenses. In addition, the decision will be important for software vendors with a pure commerical model as well as licensors of other copyrightable works such as books, music and film. These licensors should read Jacobsen carefully and revise these licenses appropriately to take advantage of the new clarity on these issues provided by the decision.
“Copyright licenses are designed to support the right to exclude: monetary damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes rather than as a dollar-denominated fee, is entitled to no less legal recognition.”
Jacobsen deals with the fundamental issue of the appropriate remedy for breach of a copyright license: the basic remedy for breaching a contract such as a license is monetary damages, but under some circumstances a copyright licensor can obtain remedies under copyright law. The courts have established a standard that the breach of obligations that are covenants rather “conditions” or “restrictions” on the scope of the license can only obtain contract remedies. However the line between covenants and “conditions” or “restrictions” has always been murky. The decision provides clear guidance: obligations in a license agreement which are expressly described as a “condition” or, even better, which are introduced by the phrase “provided that” meet the criteria in Jacobsen.
Copyright law remedies include injunctive relief, attorneys fees, actual damages and, potentially, statutory damages. The remedy of injunctive relief is particularly valuable for many licensors because such licensors frequently seek compliance with the terms of the contract. Courts may grant attorneys fees at their discretion and such fee awards can be significant and even exceed the damage awards. Actual damages can be difficult to determine for many copyrightable works and are particularly difficult for breaches of licenses to open source software or other works which are licensed without fee. Statutory damages,on the other hand, are not connected to actual damages and can be as much as $150,000 per copyright for willful infringement and are awarded by the court. However, such statutory damages are only available if the copyright is registered prior to the infringement (or in the case of a recently published work, the copyright is registered within three months of first publication).
Since many open source companies use the dual license model, the decision may be equally important to them for their commercial licenses. In addition, the decision will be important for software vendors with a pure commerical model as well as licensors of other copyrightable works such as books, music and film. These licensors should read Jacobsen carefully and revise these licenses appropriately to take advantage of the new clarity on these issues provided by the decision.
Wednesday, August 13, 2008
Major Victory for Open Source in Jacobsen Decision
On August 13, the Court of Appeals for the Federal Circuit (CAFC) issued its decision in the Jacobsen v. Katzer case.
http://www.cafc.uscourts.gov/opinions/08-1001.pdf
This case was the first real test of the remedies for breach of open source licenses in US courts (for more background, see http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html). Unfortunately, the District Court decision was wrong and wrong in a way that could have been a disaster for open source community. The District Court found that the requirements in the Artistic License for notice were merely a contractual covenant rather than a condition on the scope of the license (the courts sometimes use the word "restriction" on the scope of the license and "condition" at other times, but they have the same meaning). Consequently, under the District Court's analysis, Katzer's actions were not copyright infringement. Thus, Jacobsen was limited to the traditional remedy for breach of contract, monetary damages, rather than the copyright remedy of injunctive relief (injunctive relief means that the court will order Katzer to comply with the terms of the contract).
The CAFC reversed the District Court's decision and its reasoning is very helpful for the open source community. The court found that the limitations in the Artistic License were "conditions" on the scope of the license and, thus, Katzer was liable for copyright infringement (as well as breach of contract). The CAFC noted that the Artistic License imposed its obligations through the use of the words "provided that" which is generally viewed as imposing a condition. Although the reasoning is limited to the Artistic License and the interpretation of each open source license will depend on the wording of its provisions, this decision is a welcome change to the District Court decision. The case has been remanded for the District Court to determine if the other criteria for injunctive relief have been met, but the CAFC's decision strongly suggests that they have been met.
The open source community should thank the lawyers who worked hard and on a pro bono basis (i.e. free) to achieve this victory. Any such list is bound to be incomplete and I apologize in advance for anyone that I have missed, but I think that the major contributors were: Victoria Hall (Jacobsen's counsel), Chris Ridder and Anthony Falzone (Creative Commons counsel, authors of the amici brief), Karen Copenhaver (Choate Hall, counsel for the Linux Foundation who assisted on the Creative Commons amici brief), Allison Randal and Roberta Cairney (counsel for Perl Foundation who assisted on the Creative Commons amici brief), Larry Rosen (Rosenlaw & Einschlag, who assisted on the Creative Commons amici brief), Scott Peterson (HP, member of OSI's Legal Advisory Council who assisted on the Creative Commons amici brief), David Gross (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief) and Steve Chiari (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief).
http://www.cafc.uscourts.gov/opinions/08-1001.pdf
This case was the first real test of the remedies for breach of open source licenses in US courts (for more background, see http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html). Unfortunately, the District Court decision was wrong and wrong in a way that could have been a disaster for open source community. The District Court found that the requirements in the Artistic License for notice were merely a contractual covenant rather than a condition on the scope of the license (the courts sometimes use the word "restriction" on the scope of the license and "condition" at other times, but they have the same meaning). Consequently, under the District Court's analysis, Katzer's actions were not copyright infringement. Thus, Jacobsen was limited to the traditional remedy for breach of contract, monetary damages, rather than the copyright remedy of injunctive relief (injunctive relief means that the court will order Katzer to comply with the terms of the contract).
The CAFC reversed the District Court's decision and its reasoning is very helpful for the open source community. The court found that the limitations in the Artistic License were "conditions" on the scope of the license and, thus, Katzer was liable for copyright infringement (as well as breach of contract). The CAFC noted that the Artistic License imposed its obligations through the use of the words "provided that" which is generally viewed as imposing a condition. Although the reasoning is limited to the Artistic License and the interpretation of each open source license will depend on the wording of its provisions, this decision is a welcome change to the District Court decision. The case has been remanded for the District Court to determine if the other criteria for injunctive relief have been met, but the CAFC's decision strongly suggests that they have been met.
The open source community should thank the lawyers who worked hard and on a pro bono basis (i.e. free) to achieve this victory. Any such list is bound to be incomplete and I apologize in advance for anyone that I have missed, but I think that the major contributors were: Victoria Hall (Jacobsen's counsel), Chris Ridder and Anthony Falzone (Creative Commons counsel, authors of the amici brief), Karen Copenhaver (Choate Hall, counsel for the Linux Foundation who assisted on the Creative Commons amici brief), Allison Randal and Roberta Cairney (counsel for Perl Foundation who assisted on the Creative Commons amici brief), Larry Rosen (Rosenlaw & Einschlag, who assisted on the Creative Commons amici brief), Scott Peterson (HP, member of OSI's Legal Advisory Council who assisted on the Creative Commons amici brief), David Gross (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief) and Steve Chiari (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief).
Wednesday, August 6, 2008
Linuxworld: Looking to the Future of Open Source
Linuxworld was very interesting this year. As Bob Sutor noted, we stand at a crossroads on the development of Linux and open source (see below for Bob’s predictions).
I spoke on Implementing Your Open Source Business Strategy http://linuxworldexpo.com/live/12/conference//tracks/tracksessions/Legal+and+Licensing/QMONYB00BIOE. The audience was very interesting: although we had some open source companies, most of the attendees were traditional software companies who are trying to learn about implementing open source strategies. This shift is consistent with my experience working with software companies in Silicon Valley and around the world: open source software is becoming part of the mainstream software industry. We have recently seen this trend among large companies: Adobe Systems, Inc. released Flex and Nokia releasing the Symbian operating system under an open source license. This is consistent with the conclusion of the CEOs and senior executives of the Open Source Think Tank 2008 http://thinktank.olliancegroup.com/ and the recent Open Source Alliance survey http://www.opensolutionsalliance.org/.
One of the most interesting presentations was by Bob Sutor from IBM. Bob reviewed the history of IBM’s involvement with Linux and then went on to discuss the future (you can see his slides at http://www.sutor.com/newsite/blog-open/?p=2446). His predictions are as follows:
1. The desire to be “green” will drive use of Linux with hardware optimized to reduce energy use
2. Linux will not be replaced by another open source operating system
3. Linux will expand on many hardware platforms but x86 will be less important; the use of Linux will be less visible through SAAS and cloud computing where the operating system is not clear
4. The concept of Linux desktop will shift as Web 2.0 and new technologies will change the concept of desktop
5. The path of SMB adoption is unclear: will they adopt open platforms vs. cloud computing
6. The adoption of new FOSS licenses will probably slow down and the adoption of licenses will focus on the five or six most frequently used licenses, but products will be issued under multiple licenses increasing complexity of legal issues
7. Open standards in licenses will grow and a model similar to Creative Commons will evolve
8. Proprietary applications will be developed for Linux, but some industries (such as education and health care) will continue to develop open source applications specific to that industry
I think that most of these predictions are very insightful. However, I don’t agree with his seventh predictions on licensing. As the General Counsel of the Open Source Initiative for many years and being involved in our efforts to reduce license proliferation, I think that the legacy of multiple licenses (we now have more OSI approved licenses than when I started) will be difficult to overcome. Sadly, I think that we are beyond the point where we can take the rational approach adopted by Larry Lessig in the Creative Commons. The existing licenses have such strong backing that the adoption of a new “cleaner” approach is not likely to be successful. I hope I am wrong, but habit is hard to overcome.
I spoke on Implementing Your Open Source Business Strategy http://linuxworldexpo.com/live/12/conference//tracks/tracksessions/Legal+and+Licensing/QMONYB00BIOE. The audience was very interesting: although we had some open source companies, most of the attendees were traditional software companies who are trying to learn about implementing open source strategies. This shift is consistent with my experience working with software companies in Silicon Valley and around the world: open source software is becoming part of the mainstream software industry. We have recently seen this trend among large companies: Adobe Systems, Inc. released Flex and Nokia releasing the Symbian operating system under an open source license. This is consistent with the conclusion of the CEOs and senior executives of the Open Source Think Tank 2008 http://thinktank.olliancegroup.com/ and the recent Open Source Alliance survey http://www.opensolutionsalliance.org/.
One of the most interesting presentations was by Bob Sutor from IBM. Bob reviewed the history of IBM’s involvement with Linux and then went on to discuss the future (you can see his slides at http://www.sutor.com/newsite/blog-open/?p=2446). His predictions are as follows:
1. The desire to be “green” will drive use of Linux with hardware optimized to reduce energy use
2. Linux will not be replaced by another open source operating system
3. Linux will expand on many hardware platforms but x86 will be less important; the use of Linux will be less visible through SAAS and cloud computing where the operating system is not clear
4. The concept of Linux desktop will shift as Web 2.0 and new technologies will change the concept of desktop
5. The path of SMB adoption is unclear: will they adopt open platforms vs. cloud computing
6. The adoption of new FOSS licenses will probably slow down and the adoption of licenses will focus on the five or six most frequently used licenses, but products will be issued under multiple licenses increasing complexity of legal issues
7. Open standards in licenses will grow and a model similar to Creative Commons will evolve
8. Proprietary applications will be developed for Linux, but some industries (such as education and health care) will continue to develop open source applications specific to that industry
I think that most of these predictions are very insightful. However, I don’t agree with his seventh predictions on licensing. As the General Counsel of the Open Source Initiative for many years and being involved in our efforts to reduce license proliferation, I think that the legacy of multiple licenses (we now have more OSI approved licenses than when I started) will be difficult to overcome. Sadly, I think that we are beyond the point where we can take the rational approach adopted by Larry Lessig in the Creative Commons. The existing licenses have such strong backing that the adoption of a new “cleaner” approach is not likely to be successful. I hope I am wrong, but habit is hard to overcome.
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