Legal-Considerations-for-Open-Source-Software-Creative-Commons-Licenses_Spring-2019 (1).pptx

Editor's Notes

• #3 Today we will cover two categories of licenses one known as Open Source Software licenses that were created specifically for software only and the other known as Creative Commons licenses which can be used for all other creative works (photography, font design, music, etc). While these two categories are applied to very different groups of creations, they do share a commonality in their ideology. They both have the goal of sharing knowledge, encouraging creativity & increasing collaboration from the original work, while still maintaining control over the conditions of the public’s use and modification of creator’s work. First, Amy and Wyndham will discuss Open Source Software licenses. - OSS licenses are free licenses used for software source code and encourage computer programmers to access, view, and modify open source software. - The licenses chosen by the creator will specify what modifications can be made to source code, how those changes should be incorporated into their own projects, and the rights the users will have to keep their code private/proprietary. - Amy and Wyndham will walk through the Required, Permitted and Forbidden Activities for each of the 5 most common licenses and walk through a hypothetical client situation. After our discussion of OSS, I will discuss Creative Commons licenses. - CC licenses are free, easy-to-use copyright licenses for creative works aside from software. CC is a simple and standardized way to give the public permission to share and use your creative work – based on the conditions. - I will explain the 4 different conditions of use that be included in a license, the 6 resulting combinations of license and then walk us through a hypothetical client situation. Specifically, our presentation will help address common questions that you may face in your entrepreneurial endeavors, such as: What is Open Source Software and how can it be used for my project? What are Creative Commons licenses?  What are some common restrictions in OSS licenses and Creative Commons licenses? How can these restrictions potentially impact the commercialization of my technology?
• #4 Open source software is a licensing model and method of software development that allows for software to be freely used, modified, and shared. Although software rights are typically regulated under copyright law, open source allows licensors to use contract law to manage and distribute software rights. Licensors use open source licenses to place limitations on how licensees can use the OSS licensed code. Are any of you programmers? Have any of you included open source software in programs that you are writing? If so, this presentation will be very relevant for you, as it will help you understand how you can ensure that your use of the OSS licensed code complies with the terms of the licenses.
• #5 In order to help you guys better understand what we’re talking about, we’re defining some words that we will use throughout our presentation today. Linking – process of bringing external programs together to execute the program, it can be performed at compile time (when source code is translated into machine code) or load time (when the program is loaded into memory) or run time Static linking – a method of combining all modules used in the program in a final executable at compile time, it forms a single memory file with the executable code at the time the program is run and remains in memory for the entire time the program is in operation (all code is contained in a single executable module so there’s no compatibility issues – however if the external programs change, then it has to be recompiled and relinked) Dynamic linking – the external libraries are placed in the final executable file and the linking occurs at run time when the executable file and libraries are placed in memory (allows individual shared modules to be updated and recompiled however the libraries must be compatible)
• #6 Today we will talk about 5 open source licenses that are commonly used – the MIT license, the Apache license, the Mozilla Public License, and the GPL and AGPL licenses. Keep in mind though that there are hundreds of other open source licenses that exist, so if you have specific questions about any of the other OSS licenses, please contact our clinic.
• #7 First we will discuss is the MIT license, a permissive license that was created by MIT. The license is the most permissive, and also the most used, open source license out there. The license contains an attribution requirement, that states that licensees must include a copyright notice in “all copies or substantial portions” of the OSS licensed code. The license gives licensees permission to do the following: To use, modify, and distribute, copies of the software without limitations, To use the OSS licensed code for commercial purposes, And to incorporate the OSS licensed code into larger work subject to the terms of a different license. This makes the license compatible with copyleft licenses. The license doesn’t contain any warranties so the licensee cannot hold the licensor legally liable for any claim that arises out of the licensee’s use of the OSS licensed code. One thing to note is that unlike the other licenses we are discussing today, the MIT license does not include language that gives the licensee an express patent license. This is because OSS licenses are copyright licenses and, since software patents weren’t common when the license was first written, the MIT license does not take patents into consideration. This means that a licensor could pursue a patent infringement claim against a licensee for using the OSS licensed code. However, many people do think that a patent license is implied, given the super broad language in the license, that states that the licensee has the right ”to deal in the software without restriction”.
• #8 The next license is the Apache license, which, like the MIT license, is also a permissive license that was written by the Apache Software foundation. However, unlike the MIT license, the Apache license does include an express patent license for licensees. This protects licensees, as it gives them an express license to use any patents held by the licensor that are relevant to the OSS licensed code. The license contains an attribution requirement, which states that all downstream works must include a copy of the copyright notice, and it also requires that all downstream works must also include a copy of the license. The license gives licensees permission to modify the OSS licensed code, however the modified files must carry a prominent notice stating that changes were made. This doesn’t require licensees to disclose their modified source code, which allows them to keep their program proprietary. The license also gives licensees permission to: Distribute copies of the software, Use the OSS licensed code for commercial purposes, Incorporate the OSS licensed code into a larger work that’s subject to the terms of a different license. This makes the license compatible with copyleft licenses The license doesn’t contain any warranties so the licensee cannot hold the licensor legally liable for any claim that arises out of the licensee’s use of the OSS licensed code. The Apache license isn’t a copyleft license, as it doesn’t require the user to distribute any derivative works under the same license. However, all software that contains Apache-licensed code that’s redistributed must include a copy of the original license, provide a clear attribution notice, and include a modification notice on any files that have been modified.
• #9 The next license is a copyleft license known as the Mozilla Public License or MPL. The license contains the following requirements: An attribution requirement, which states that all downstream works must include a copyright notice A requirement that all downstream works must include a copy of the original license And, since it’s a copyleft license, it also requires that the source code for all modifications made to the OSS licensed code be disclosed when the software is distributed The license gives licensees permission to modify the OSS licensed code, however the modifications must also be licensed under the MPL. The license also gives licensees permission to: Distribute copies of the software, Use the OSS licensed code for commercial purposes, Incorporate the OSS licensed code into larger work licensed under different licenses. The reason that the MPL doesn’t attach to the larger work even though it’s a copyleft license is because the MPL is known as what’s called a “file level” copyleft license. This means that users can incorporate MPL-licensed code into their larger work that’s distributed under another license, as long as the MPL-licensed code is kept in a file that’s separate from the rest of their code. This way, the terms of the license will only apply to the file containing the MPL-licensed code, and not to the larger work as a whole. Because of this, The license is considered by most to be a middle ground between the permissive licenses, like the Apache and MIT licenses, and the GNU family of licenses. And, like the Apache license, the MPL grants licensees an express patent license The license doesn’t contain any warranties so the licensee cannot hold the licensor legally liable. MPL-licensed code can be statically linked with closed-source software and the MPL license would not attach to all of the files that make up the “larger work” (only those files with the MPL-licensed code in them)
• #10 The next license is the GNU General Public License or GPL which is a copyleft license like the MPL but also the first hereditary license we have looked at.   The license contains the following requirements: An attribution requirement, which states that all downstream works must include a copyright notice A requirement that all downstream works must include a copy of the original license The most important requirement is that the GPL license is also hereditary which means that the license attaches to not only the GPL licensed code but also to larger works that incorporate the OSS licensed code. This is different from the Mozilla license because there is no exception for code that is in a file separated from the larger work. Since the GPL is a hereditary and a copyleft license, it also requires that the source code of entire larger work be disclosed when the software is distributed.   The license gives licensees permission to modify the OSS licensed code, however the modifications must also be licensed under the GPL and you must provide notice that modifications were made.   The license also gives licensees permission to: Distribute copies of the software Use the OSS licensed code for commercial purposes, There is no restriction on the ability to sell GPL licensed code or a larger work subject to the GPL license, but commercialization may be limited due to the requirements that source code be disclosed after distribution. Nothing prevents a recipient of a larger work from requesting the source code and then distributing the larger work for free. Commercialization may still be possible though. You may choose not to distribute the software and instead keep it private for backend use or run a SAAS business. Although a SAAS business may appear to be distribution, the GPL license does not consider interaction with a program on a server to be “distribution”. Because the software is not distributed, you would not be required to release the source code and could retain a proprietary version. You may also choose to distribute the software and charge fees for installation or training as a method of commercialization. And, like the Apache and MPL licenses this grants licensees an express patent license   There are some restrictions for Licensees: Like the other licenses, the license doesn’t contain any warranties so the licensee cannot hold the licensor legally liable. Restrictions on distribution related to non-disclosure agreements. Because the GPL license is designed to make the source code available to everyone after distribution, this means that you cannot distribute beta versions of a larger work under a non-disclosure agreement because it would restrict the ability for the source code to be disclosed under the terms of the GPL license. Pros: If using the GPL license as a licensor, then it ensures that your software will remain free and available to the public. Licensors will have access to any modifications made to the software and later distributed so that they may incorporate these changes and improve their software. This “pro” for licensors may however be a “con” for those who want to make a larger work and keep it proprietary. Cons: The hereditary nature of the GPL license and the disclosure requirements limit the ability to make a proprietary version. This means you cannot limit copying, modification, or resale of your program when it is covered by the GPL license after it is distributed After distribution, you lose control over your program and anyone who receives a copy is entitled to the source code for free What if the software is only dynamically linked to the GPL licensed code instead of being statically linked? In the case of static linking, the various portions of software are linked prior to compiling. If static linking used with open source and proprietary software, then, arguably, the open source has been modified and all of the source code that was linked to the open source software would need to be disclosed upon distribution. In the case of dynamic linking, it might be argued that since modified software is really only created at the time the program is actually run and dynamically linked to others software. Thus, there may be no distribution since the modified software may only be created on an end-user’s machine. GPL says this is not an exception to disclosure of source code. “Corresponding source” definition specifically says that dynamically linked subprograms.
• #11 Follows GPL, but includes additions to the rules surrounding distribution. The AGPL added a provision which governs Remote Network Interaction and changes what is considered to be distribution. Comparing GPL vs AGPL As I just said, under GPL If you run a modified program on a server and let other users communicate with it there, but never release copies, you do not have to allow them to download the source code of the modified version running there. However under the AGPL If you run a modified program on a server and let other users communicate with it there, your server must also allow them to download the source code corresponding to the modified version running there.
• #13 Internal Use – Because the mobile app will not be distributed, the licenses will not restrict the use of the app internally and will not require the disclosure of the software. Selling the App – The student will not be restricted from selling the app to the public, but this will be considered distribution under all of the licenses and will subject the student to disclosure requirements. Because the GPL license is hereditary, the entire software program will be licensed under the GPL and this will require the student to disclose the source code to any recipient of the app. This means that someone could develop an identical app and release it for free. Running a SAAS business – The student decides that they would not like to sell an app using their software, but instead run a SAAS business based around the software they have developed. They hoped that this would mean that their software was not distributed and they could keep their software proprietary. Unfortunately, because the student incorporated code licensed under the AGPL, this would still be considered distribution. Because the SAAS business allows for users to communicate with the software over a network, this falls into the new distribution definition under the AGPL and the student would be required to disclose their source code to users of the service.
• #15 The license framework is managed by the The Creative Commons Organization, a nonprofit. These licenses were created in response to the perceived inflexibility of existing US copyright law to adapt to the use of online content. Many of us have heard of Copyrights, which is a legal right granting the creator of the work a right to exclude others. These exclusions include reproduction of the work, control over derivative works based off the original, distribution of the work, or public performance of the work. But once the internet was created, the traditional “all rights reserved” copyright model had a chilling effect, since there was so much uncertainty about whether the use of certain content from the internet amounted to copyright infringement. CC was created in response to this problem and with the ideology that that encouraging sharing and collaboration would result in innovation. They give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work The Creative Commons offer 6 free-to-use copyright licenses that are available online.
• #16  - To understand the 6 license types, we first need to understand the 4 conditions of use that are combined to form the licenses.
• #17  - (BY) and this symbol signifies the attribution condition of use - All 6 of the licenses have attribution as one of the requirements. - Licensee must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).
• #18  - (SA) and this symbol signifies the share-alike condition of use - 2 of the 6 licenses include this condition of use - Licensees may distribute derivative works only under a license identical to the license that governs the original work.  - Thus, if a person were to use parts of a BY-SA movie to create a new short film that new short film would also need to be licensed as BY-SA. The advantage of this license is that future users are not able to add new restrictions to a derivative of your work; their derivatives must be licensed the same way. Without share-alike, derivative works might be sublicensed with compatible but more restrictive license clauses. - This is in contrast to the Attribution-only license from CC where a derivative could be released under full copyright restrictions (All Rights Reserved)
• #19  - (NC) and this symbol signifies the non-commercial condition of use - Is found in 3 of the 6 licenses types - Licensees may copy, distribute, display, and perform the work and make derivative works and remixes based on it only for non-commercial purposes. This means that the work cannot be intended for or directed towards commercial advantage or monetary compensation. This doesn’t mean the work must be completely divorced from any financial benefit, it just can’t be the primary purpose. - The NC licenses only restrict what a reuser may do under the license and not what the licensor (rights holder) can do. Licensors that make their works available under an NC license are always free to monetize their works. - NonCommercial depends on the primary purpose for which the work is used, not on the category or class of reuser. - a reuser need not be in education, in government, an individual, or a recognized charity/nonprofit in the relevant jurisdiction in order to use an NC-licensed work. A reuser that is not obviously noncommercial in nature may use NC-licensed content if its use is NonCommercial in accordance with the definition
• #20  - (ND) and this symbol signifies the no derivative works condition of use - This is found in 2 of the 6 license options. - Licensees may copy, distribute, display and perform only verbatim copies of the work, not derivative works and remixes based on it
• #21 These are the 6 combinations of licenses that the 4 conditions can be combined to achieve. The reason that there aren’t 8 combinations is because the noderivatives condition can never be combined with the sharealike condition as the two are mutually exclusive. No Derivatives means that you can’t make derivatives While sharealike says that derivatives must be shared with an identical license This chart goes from the most permissive two licenses on left to the most restrictive two licenses on the lower right. Most permissive licenses: The attribution license allows people to distribute, modify, and build upon copyrighted works, even in a commercial manner, as long as the original author is credited. This license allows for the maximum dissemination and use of licensed materials. The attribution-sharealike license allows people to distribute, modify, and build upon copyrighted works, even in a commercial manner, as long as the original author is credited and the new creations are licensed under identical terms. Middle ground licenses: The attribution-noncommercial license allows for others to distribute, modify, and build upon copyrighted works as long as the original author is credited but it provides an added restriction that all new works must be non-commercial. The attribution-no derivatives license allows for redistribution of a work as long as it’s passed along unchanged and in whole with credit to the original author. Most restrictive licenses: The attribution-noncommercial-sharealike license allows for others to distribute, modify, and build upon works non-commercially as long as they credit the original author and license the new creations under identical terms. The attribution-noncommercial-no derivatives license allows others to download and share the works as long as the original author is credited, however others have no permission to change the works in any way or use them commercially. This is the most restrictive of all of the creative commons licenses.
• #22 - In order to get a better understanding of the creative commons license options, we will be discussing a hypothetical that will exhibit how the conditions of the license affect clients. - To prevent the licensees from changing his videos, the client would want to include the no derivative works condition in his creative commons license. - To prevent the licensees from profiting off of his videos, the client would want to include the non-commercial condition in his creative commons license. - To ensure that the licensees give him credit for making the videos, the client would want to include the attribution condition in his creative commons license. - Therefore, based on the three conditions, the creative commons license that our client would want to use would be the attribution, noncommercial, noderivatives license.
• #24 This concludes our presentation on OSS and creative commons. Does anyone have any general questions? If so, please feel free to ask now. Otherwise, if you would like to receive advice on how these licenses will affect your projects, please contact the BU Law Startup clinic