Open Source Software: Brussels A Brief Primerdownload.pli.edu/WebContent/pm/190810/pdf/11-01-16_0915...2016/11/01 · Skadden, Arps, Slate, Meagher & Flom LLP Open Source Software:

Skadden, Arps, Slate, Meagher & Flom LLP

Open Source Software: A Brief Primer

Stuart D. Levi

PLI - November 2016

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Technology Primer 101 - Code

Compiler

Source Code Object

Code

Implementation Phase

Write a program (source code)

Compile a program (source code to Object code)

Link a Program ( Object code to Executable code)

Test and Debug the Program (rectify the errors in the program)

Skadden, Arps, Slate, Meagher & Flom LLP 5

Defining “Open Source”

• There is no legal definition

• Open Source (1998) v. Free Software (1985)

– Understanding the origins of the open source/free software

movement is critical to understanding the legal issues that

may arise.


Free Software Foundation

• A program is free software if the program's users

have the following four essential freedoms:

– The freedom to run the program, for any purpose (freedom

0).

– The freedom to study how the program works, and change it

so it does your computing as you wish. Access to the source

code is a precondition for this. (freedom 1).

– The freedom to redistribute copies so you can help your

neighbor (freedom 2).

– The freedom to distribute copies of your modified versions to

others. Access to the source code is a precondition for this.

(freedom 3).


Defining “Open Source”

• The Open Source Initiative (OSI):

– Founded in 1998

– “Based on the sharing and collaborative improvement of

software source code”

– Mission statement:

• protects and promotes open source software, development and

communities, championing software freedom in society through

education, collaboration, and infrastructure, stewarding the

Open Source Definition (OSD), and preventing abuse of the

ideals and ethos inherent to the open source.

– Term “open source” coined at a conference in Palo Alto “to

have a single label that identified this approach and

distinguished it from the philosophically- and politically-

focused label "free software."


Defining Open Source (cont.)

• Open Source Initiative Definition

– Open source doesn't just mean access to the source code.

– Cannot restrict any party from selling or giving away the

software as a component of an aggregate software

distribution containing programs from several different

sources

– Allow derivative works

– The license may restrict source-code from being distributed

in modified form only if the license allows the distribution of

"patch files" with the source code for the purpose of

modifying the program at build time.

– The license cannot be specific to a person or technology and

cannot be specific to a product



• Free Software Foundation explaining the difference

between open source and free software:

– They convey different ideas/philosophies

• “The fundamental difference between the two movements is in

their values, their ways of looking at the world.”

• “’Free software’ means software that respects users' freedom

and community. Roughly, the users have the freedom to run,

copy, distribute, study, change and improve the software.”



• Open source is a development methodology; free

software is a social movement. For the free software

movement, free software is an ethical imperative,

because only free software respects the users'

freedom. By contrast, the philosophy of open source

considers issues in terms of how to make software

“better”—in a practical sense only.

• For the Open Source movement, non-free software is

a suboptimal solution. For the Free Software

movement, non-free software is a social problem and

free software is the solution



• Why does the different in philosophy matter?

– The FSF has written the most commonly

used “open source” license – the GPL,

Lesser GPL, and Affero GPL

• The FSF philosophy shapes much of the

debate in the “open source” community and

the manner in which open source is used


Open Source Paradigm

• Source code (human-readable code) freely available

(hence, “open source”)

• Typically open, community-based software

development

• In many cases, no individual “controls” the evolution

of the software

• Programmers improve the software; fix bugs, etc. and

then send back into the community

• No counter-party to turn to if there are any issues.


Contrast Traditional Software Development

• “Closed” source

• Private development teams and methodology

• Restrictive License Terms

– Limitations on scope of use

– Restrictions on modifications, reverse engineering,

redistribution, etc.

– Vendor as sole source for maintenance and support

• But, a defined counter-party to turn to if there is an

issue


Open Source Licenses

• In many ways, open source is defined by the

license under which it is offered

• There are scores of available licenses that vary

in their approach to how the software may be

used.

• These licenses can, very broadly speaking, be

divided into two buckets


Open Source Licenses

• “Copyleft” licenses require licensee to license

specific developments (if they are not

restricted to internal use) to anyone under the

original license.

• “Permissive” or “Attribution” licenses

enable the licensee to license his modifications

to the original software as either Open Source

software or "proprietary" software


Copyleft: Strong vs. Weak

Strong Copyleft Weak Copyleft

• License provisions are imposed on all derived works

– GPLv2

– GPLv3

– AGPLv3 (network service)

• Many, but not all, derived works inherit the copyleft license

– LGPL

– Mozilla Public License(s) [MPL]

– Eclipse Public License [EPL]

– Microsoft Reciprocal License [MS-RL]

– Common Development and Distribution License [CDDL]


GPL Family of Licenses

• License that Linux is licensed under

• Arguably, the strictest of all licenses in preserving the

“purity” of open source

• The most complex of all licenses

• Goal is to ensure that any derivatives of open source

are themselves open source

• Raises concerns of open source “infecting” any

proprietary code with which it is integrated, and

rendering the proprietary code open source



• GPL Version 3 –

– The most commonly used GPL license – strong copyleft

protection.

– “The licenses for most software and other practical works are

designed to take away your freedom to share and change the

works. By contrast, the GNU General Public License is intended

to guarantee your freedom to share and change all versions of a

program--to make sure it remains free software for all its users.

– Ensures that modified versions of the code it covers remain free

and open source

– Attempts to preserve copyleft status by mandating the use of the

GPL v3 for distributed adaptations of GPL v3-licensed code




– “You may make, run and propagate covered works that you do

not convey, without conditions so long as your license otherwise

remains in force.”

• To “propagate” a work means to do anything with it that, without

permission, would make you directly or secondarily liable for

infringement under applicable copyright law, except executing it on

a computer or modifying a private copy. Propagation includes

copying, distribution (with or without modification), making

available to the public, and in some countries other activities as well

• To “convey” a work means any kind of propagation that enables

other parties to make or receive copies. Mere interaction with a user

through a computer network, with no transfer of a copy, is not

conveying




– Charging a fee - You may charge any price or no price for each

copy that you convey, and you may offer support or warranty

protection for a fee

– Using “contractors” - You may convey covered works to others

for the sole purpose of having them make modifications

exclusively for you, or provide you with facilities for running

those works, provided that you comply with the terms of this

License in conveying all material for which you do not control

copyright.




– When distributing modified works:

• The work must carry prominent notices stating that you modified it, and

giving a relevant date.

• You must license the entire work, as a whole, under this License to anyone

who comes into possession of a copy. This License will therefore apply to

the whole of the work, and all its parts, regardless of how they are packaged.




– Anti-circumvention - When you convey a covered work, you

waive any legal power to forbid circumvention of technological

measures . . . and you disclaim any intention to limit operation

or modification of the work as a means of enforcing, against the

work's users, your or third parties' legal rights to forbid

circumvention of technological measures.

Derivation or Mere Aggregation?

What is a Derivative Work?

17 U.S.C. § 101: A “derivative work” is a work based upon one or more pre-existing

works, such as a translation, musical arrangement, dramatization, fictionalization,

motion picture version, sound recording, art reproduction, abridgment,

condensation, or any other form in which a work may be recast, transformed, or

adapted. A work consisting of editorial revisions, annotations, elaborations, or other

modifications which, as a whole, represent an original work of authorship, is a

“derivative work”.

Have I derived, or simply aggregated? Not always an easy

question with software. But the answer matters.

Requires thinking about how software is created, and how

software communicates.


“Combinations” Under the GPL

• A compilation of a covered work with other separate

and independent works, which are not by their nature

extensions of the covered work, and which are not

combined with it such as to form a larger program, in

or on a volume of a storage or distribution medium, is

called an “aggregate” if the compilation and its

resulting copyright are not used to limit the access or

legal rights of the compilation's users beyond what the

individual works permit. Inclusion of a covered work

in an aggregate does not cause this License to apply to

the other parts of the aggregate


“Combinations” Under the GPL

• Where's the line between two separate programs, and one program with

two parts?

– This is a legal question, which ultimately judges will decide.

– We believe that a proper criterion depends both on the mechanism of

communication (exec, pipes, rpc, function calls within a shared address

space, etc.) and the semantics of the communication (what kinds of

information are interchanged).

– If the modules are included in the same executable file, they are definitely

combined in one program.

– If modules are designed to run linked together in a shared address space, that

almost surely means combining them into one program.

– Pipes, sockets and command-line arguments are communication

mechanisms normally used between two separate programs. So when they

are used for communication, the modules normally are separate programs.

But if the semantics of the communication are intimate enough, exchanging

complex internal data structures, that too could be a basis to consider the

two parts as combined into a larger

Static Linking

Static linking = traditional method to combine a core program with other object code-based functionality

routines, functions and variables are resolved at compile-time and copied into a target application

Static Linking 101

Linker

Program.o

Yellow.o

Green.o

Red.o

Let’s Link the Modules…

Linker

Into a Single Executable Program

program.exe

Dynamic Linking

Dynamic linking does not copy the various distinct bits of object code together into a single executable program.

Instead, perform linking when the program is actually run, and load object code into memory on an as-needed basis.

Dynamic Linking 101

program.exe

Yellow.dll

Green.dll

Red.dll

Dynamic Linking – Runtime Behavior

program.exe

Yellow.dll

Green.dll

Red.dll


Distribution

• Arises under both copyleft and permissive licenses

– For example, the BSD requires attribution and notices to be

included when the work is “redistributed.”

• When is a work deemed “distributed” today?

– Many SaaS applications have a robust “client side” especially

in cases of html5; javascript; and flash

– Is a SaaS program distributed if the client side includes

nontrivial code?

Distribution Trigger

Answers may vary depending on jurisdiction

Generally, providing a copy to another person = distribution

From a technical perspective sending bits to someone else

Shiny gold disk

Via App Store

Code sent to web browser cache

Not SaaS / Cloud



• LGPL (“Lesser” GPL) –

– Often used for “shared libraries”

– Considered a compromise between the GPL and permissive

licenses like the BSD.

– Allows a work to be linked with (or in the case of a library,

'used by') another program, regardless of whether it is free

software or proprietary software.

– The non-LGPLed program can be distributed under any

terms if it is not a derivative work.



• Affero GPL

– If you run the program on a server and let other users

communicate with it, your server must also allow users to

download the source code corresponding to the program that

is running

– Originally designed to protect open source developers against

a case where the next developer modifies the software but

then only offers it on an ASP-type basis (thereby keeping

their modifications out of the open source community).

– Recommended by the FSF for any software that will run over

a network.

– Given a “version 3” designation to match up with the GPL


BSD-License (“Attribution Licenses”)

• BSD-style (originally used for BSD Unix)

– Most popular alternative to the GPL

– Considered a “permissive” license”

– No limits on integration with proprietary code

– No obligation to disclose modifications

– Basically allows the user to do anything if they provide credit

• Apache License (Apache Software Foundation)

• Form of BSD License

• Preserve attribution and any IP notices

• “as is” disclaimer


Questions or comments?

Stuart Levi

[email protected]

(212) 735-2750

mailto:[email protected]

Open Source Software: Brussels A Brief Primerdownload.pli.edu/WebContent/pm/190810/pdf/11-01-16_0915...2016/11/01 · Skadden, Arps, Slate, Meagher & Flom LLP Open Source Software:

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