ETSI Workshop on Open Source and ization: Legal Interactions September 16, 2016 Sophia Antipolis Open Source and s: A Proposal for Collaboration David Marr VP & Legal Counsel Open Source Group Qualcomm Technologies Inc. 1
s and Open Source Development Each Making the Other Better Concurrent Reference Implementation Engineering Can Improve the Specification 120 100 80 60 40 20 0 v.1.0 Begins Start RI v.1.0 RI Informs v.1.0 Complete RI Dev Continues RI v.1.0 Complete v.2.0 begins Begin RI v.2.0 RI Informs Reference Implementation (RI) 9/17/2016 2
Open Source Definition Copyright Rights The Open Source Definition is at www.opensource.org License must grant broad copyright rights for free: Copy Modify Distribute License terms must not favor or disfavor: Persons/Groups Fields of endeavor Specific products Patent license terms can always be incrementally added (and many approved licenses have them) but are not part of the definition 9/17/2016 3
70+ Approved Open Source Licenses Source: Black Duck Software 9/17/2016 4
Case Study: The Apache License, Version 2 Inherent conflict with most IPR policies as well as many popular open source licenses Apache license is not compatible with many major open source licenses such as GPLv2 and LGPLv2.1 Apache license creates added complexity when you already have an IPR policy precisely where you need high clarity Apache s patent retaliation provision is that consistent with SDO policy? Identical triggers? Runs counter to objective to quickly create a reference implementation Confused contributors Additional administrative overhead: Apache projects need a corresponding contribution agreement What is a Work? (see next page) 9/17/2016 5
Apache 2: What is a Work (it s ambiguous) Issue: under Apache 2, Contributors grant patent rights to their Contribution and combinations with the Work but the scope of Work is ambiguous. http://www.apache.org/licenses/ LICENSE-2.0 (see Section 1 for definition of Work, read in conjunction with Section 3) Project 1 Component A File Alpha Mod to File Alpha SDO Project 1 Branch X Branch X.1 File Beta SDO SDO Project 2 Relevant Question: If one modifies File Alpha (see purple box below) what is the Work? Is it code in all SDO-managed projects that are licensed under Apache 2? Probably not. Is it all code in Project 1? Does Project 1 have a clear Project 1 definition? Is it designed to work with another Component B project? What if Project 1 is designed to be compiled with Project 2? Is it based on the portion of the Project that has its own defined interface? Is separately built? Has its own directory? Is it based on the separately managed or maintained branch where contribution s features are targeted? Is it the file that was actually modified by the Contribution? Additional issue: what about other Apache projects? Claims licensed for Project 1 get licensed for Project 2 as well?
BSD 3-Clause License Clarification in Red http://opensource.org/licenses/bsd-3-clause Copyright (c) <YEAR>, <OWNER> All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: 1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 3. Neither the name of the copyright holder nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The above license is used as a license under copyright only. Please refer to the ETSI IPR Policy <link> for any applicable patent licensing terms. 7
BSD Model in ETSI Context Compatible with Open Source Projects and ETSI IPR policy Managed by ETSI Open Source Group (to be created) Management Across Multiple OS Projects Hosting Infrastructure for Multiple OS Projects Centralized Copyright Ownership/Licensing Commercial Implementers ETSI Members assign copyrights to ETSI Copyright Contribution only; no patents granted as to code Reference Implementation of an ETSI Non-ETSI Member Contributions (must be under acceptable license for the project and under DCO) BSD w/ clarification in red 3 rd Party (Non-ETSI) Open Source Projects License for project; (e.g., Apache 2, GPLv2, LGPLv2.1, GPLv3, MPLv2, EPL, etc.) (one who sells a product on the market) Refer to ETSI IPR Policy if they would like to secure additional patent rights
Closing Comments ETSI s IPR Policy should continue to encourage the best contributions Many ways for FRAND to work with Open Source if thoughtfully approached Permissive, copyright-based open source license like the BSD Plus an express reference to ETSI s existing IPR Policy in conjunction with the open source license ETSI has a proven track record of success A good standard is built by innovative contributions These contributions are the result of investments in R&D The established IPR Policy supports the ROI model that has made ETSI s standards among the most successful in the industry Let s preserve that, while also engaging in Open Source 9/17/2016 9
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