How to reduce fric-on and transac-on costs in intellectual property management for free and open source projects?

Transcription

1 How to reduce fric-on and transac-on costs in intellectual property management for free and open source projects? LinuxCon Europe 2013, October 21 st 2013

2 Background Most free and open source so:ware (and other collabora-ve) projects s-ll tailor various different agreements rela-ng to copyright and patents to structure and clarify rights in contribu-ons and products. The result is complex structure of different copyright (and patent) terms to be reviewed and nego-ated when collabora-ng on and contribu-ng to different projects.

3 Background Each -me developers (and authors) decide to collaborate and contribute to a specific project, all par-es involved be it contributors and their employers or the par-cipa-ng projects and companies - experience fric-on and transac-on costs in reviewing and nego-a-ng legal terms to define the mutual rela-onship. To address this problem, it is not only important to think standardized legal terms (I), it is also cri-cal to think the underlying infrastructure (II).

4 I. Standardized Legal Terms

5 Governance Structures Understanding Governance Structures: Different needs for different projects and different seqngs Contributor Agreements: One of many ways Standardiza-on and related risks Open legal ques-ons and challenges

6 Governance Structures Interviews to understand best prac-ces and relevant ques-ons for governance structures Lessons learned from: a) independent developers, b) developers working with established FOSS projects, c) developers working with SMEs, c) members of the board of directors for founda-ons, d) independent consultants, e) academics

7 Governance Structures Preliminary findings suggest two important types of free and open source project structures: a) organized by individual with leadership skills b) pre- arranged by management of well established projects and/or founda-ons When to use contributor agreements: a) clarifica-on and transparency of rights b) enforcement strategies c) change of licensing structures d) death/legal succession

8 Contributor Agreements Agreements between a free and open source so:ware or an open content project and contributors to the project that set out what the project can do with the respec-ve contribu-on: code, transla-on, documenta-on, artwork, etc. Purpose is to make the terms, under which such contribu-ons are made, visible and explicit.

9 StandardizaFon Growing number of contributor agreements are already available, including some standard terms that are copied between projects. Reduce fric-on and transac-on costs by providing standardized terms? How to respect different needs and different solu-ons for different projects?

10 Legal QuesFons Interna-onaliza-on - private interna-onal law - jurisdic-on Dra:ing op-ons and legal consequences - assignment - (non)exclusive license Signature formali-es Patent license - exact scope - op-onal scheme for defensive language

11 How to address legal quesfons: Transparency and Trust Legal opinions by independent counsel Public discussion of results and agreement dra: Learn from results and comments, learn from interviews and conversa-ons with individuals Recommenda-ons for the next genera-on of standardized contributor agreements

12 Proposal and Public Discussion Legal opinions published on September 4 th : SCRIPTed 2013 Volume 10 Issue 2 available at hdp://script- ed.org/wp- content/uploads/2013/08/editorial.pdf License dra: for public discussion available at hdp://development.contributoragreements.org/ Timeline and next steps a) discussion b) development of full set of standardized terms c) launch of website and agreement selector

13 Patent License and AlternaFves? Exact scope of patent license? Tendency towards defensive language? - Open Inven-on Network - Twider - Google - Defensive Patent License Lessons learned for contributor agreements: Op-onal scheme that could allow to implement non- asser-on pledge?

14 Proposed Language for Patents Apache- style broad patent license or Iden-fica-on of patents and possibility of non- asser)on patent pledge of iden-fied patents Revoca-on of patent license and pledge Cri-cal ques-on what is the difference between license and non- asser-on pledge? Legal research needed to understand ques-ons around legal structure, enforcement etc.

15 Long Term Goal More op-ons for users of contributor agreements and especially for those who are opposed to a broad patent license. Add transparency to the free and open source ecosystem by encouraging contributors to iden-fy patents. Increase legal security for all stakeholders involved in the free and open source ecosystem. Serve as a role- model and encouragement for others to contribute to policy discussion the current state of the patent system.

16 II. Infrastructure

17 Thoughts Addi-onal standardized licensing frameworks can help to reduce fric-on of reviewing and nego-a-ng contracts but are not sufficient? Think the underlying infrastructure? Is it possible to build a system to manage and move rights between different par-es and across jurisdic-ons?

18 Network of Stewards If the goal is to reduce fric-on and transac-on costs, what kind of framework can help to easily move rights between developers/authors, project owners, end- users? Network of stewards, which allows trustworthy third par-es to mediate and move rights between rightholders, projects, and end- users and across jurisdic-ons? What role for stewardship organiza-ons and what kind of added value for today s distribu-on chain?

19 Benefits What role outside copyright and patents? Risk management (including audit and insurance)? Explore the rela-onship between insurance, risk management and respec-ve legal frameworks!

20 Thank You!

21 hdp://contributoragreements.org