Open Source Software: Top 10 Myths that Every In-House, Government, & Private Practice Lawyer Should Know 2017 NAPABA Convention Washington, D.C. Saturday, November 4, 2017 10:45 am – 12:00 pm ET

Agenda Introductions Overview of Open Source Software Top 10 Myths of Open Source Software Conclusion

Introductions Victor Huang Senior Counsel, Products and IP Nutanix, Inc. Manages patent & open source programs Responsible for all use of open source

Introductions Joseph Lee Assistant General Counsel Microsoft Corp. Leads the legal team supporting the Azure cloud computing business Expert in cloud computing

Introductions John Tsai Lead Counsel, Open Source & IP Facebook, Inc. Responsible for open source and IP licensing

Introductions Sue Xia Assistant General Counsel Walmart eCommerce Leads the patent program and open source program

Overview of Open Source Software Open source software is computer software with its source code made available with a license in which the copyright holder provides the rights to study, change, and distribute the software to anyone and for any purpose. Open source software may be developed in a collaborative public manner. Wikipedia, https://en.wikipedia.org/wiki/Open-source_software, 9/1/17. Differences between source code and object code

Top 10 Myths of Open Source Software Open source software is widely used in consumer electronics, home appliances, the cloud, proprietary software, social media apps, and back-office support systems. True or False?

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 1 [insert graph here]

Top 10 Myths of Open Source Software Open source software is widely used in consumer electronics, home appliances, the cloud, proprietary software, social media apps, and back-office support systems. True

Top 10 Myths of Open Source Software Examples of where open source software is used: Consumer electronics Home appliances The cloud Proprietary software Social media apps Back-office support systems

Top 10 Myths of Open Source Software Large companies do not use open source software. True or False?

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 2 [insert graph here]

Top 10 Myths of Open Source Software Large companies do not use open source software. False

Top 10 Myths of Open Source Software How do large companies use open source software? In what situations might large companies avoid using open source software?

Top 10 Myths of Open Source Software Open source software is about saving money. True or False?

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 3 [insert graph here]

Top 10 Myths of Open Source Software Open source software is about saving money. False

Top 10 Myths of Open Source Software How is open source software supported? MySQL RedHat Apache Hadoop Ubuntu

Top 10 Myths of Open Source Software Open source software is better than proprietary software. True or False?

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 4 [insert graph here]

Top 10 Myths of Open Source Software Open source software is better than proprietary software. Maybe

Top 10 Myths of Open Source Software Open source software can be created by an entire community, instead of a single company. Open source software is computer software with its source code made available with a license in which the copyright holder provides the rights to study, change, and distribute the software to anyone and for any purpose. Open source software may be developed in a collaborative public manner. Wikipedia, https://en.wikipedia.org/wiki/Open-source_software, 9/1/17.

Top 10 Myths of Open Source Software Open source software is software “without strings attached.” True or False?

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 5 [insert graph here]

Top 10 Myths of Open Source Software Open source software is software “without strings attached.” False

Top 10 Myths of Open Source Software Open source software licensing terms & conditions. Open source software is computer software with its source code made available with a license in which the copyright holder provides the rights to study, change, and distribute the software to anyone and for any purpose. Open source software may be developed in a collaborative public manner. Wikipedia, https://en.wikipedia.org/wiki/Open-source_software, 9/1/17. GNU GPL (version 3) open source software license Section 2: All rights granted under this License are granted for the term of copyright on the Program.

Top 10 Myths of Open Source Software Artifex Software, Inc. v. Hancom, Inc., No. 16-cv-06982- JSC, 2017 U.S. Dist. 2017 WL 1477373 (N.D. Cal. Apr. 25, 2017) Courts are open to enforcing terms of open source software licenses Open source software licensors might have broader scope of remedies under breach of contract theories, such as indirect and consequential damages Specific performance remedies are “extremely dubious”

Top 10 Myths of Open Source Software Open source software is hostile towards intellectual property because of copyleft views and viral licensing. True or False?

Top 10 Myths of Open Source Software Copyleft type licenses are a novel use of existing copyright law to ensure a work remains freely available. Wikipedia, https://en.wikipedia.org/wiki/Copyleft, 9/1/17. [A] [v]iral license is a pejorative name for copyleft licenses … that allows [changes to the source code] only when permissions are preserved in modified versions of the work. Wikipedia, https://en.wikipedia.org/wiki/Viral_license, 9/1/17.

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 6 [insert graph here]

Top 10 Myths of Open Source Software Open source software is hostile towards intellectual property because of copyleft views and viral licensing. False

Top 10 Myths of Open Source Software It is dangerous to use open source software licensed under the GNU GPL license. True or False?

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 7 [insert graph here]

Top 10 Myths of Open Source Software It is dangerous to use open source software licensed under the GNU GPL license. Maybe

Top 10 Myths of Open Source Software Free Software Foundation (www.fsf.org) Outbound software vs. internal/backend software Legal risk vs. public relations risk

Top 10 Myths of Open Source Software Open source software has no patent or copyright restrictions. True or False?

Top 10 Myths of Open Source Software [A] [p]atent is a set of exclusive rights granted by a government to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention.  Wikipedia, https://en.wikipedia.org/wiki/Patent, 9/1/17. [A] [c]opyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution. This is usually only for a limited time. Wikipedia, https://en.wikipedia.org/wiki/Copyright, 9/1/17.

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 9 [insert graph here]

Top 10 Myths of Open Source Software Open source software has no patent or copyright restrictions. False

Top 10 Myths of Open Source Software GNU GPL (version 3) open source software license Section 10: Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License. … You may not impose a license fee, royalty, or other charge for exercise of rights granted under this License, and you may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it.

Top 10 Myths of Open Source Software Apache 2.0 open source software license Section 2: … each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form. Section 3: … each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work ….

Top 10 Myths of Open Source Software The MIT License is an open source software license with an implied patent license. True or False?

Top 10 Myths of Open Source Software Sample MIT License (Expat version) Copyright (c) <year> <copyright holders> Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

Top 10 Myths of Open Source Software THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 9 [insert graph here]

Top 10 Myths of Open Source Software The MIT License is an OSS license with an implied patent license. True

Top 10 Myths of Open Source Software Sample MIT License (Expat version) Copyright (c) <year> <copyright holders> Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

Top 10 Myths of Open Source Software THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

Top 10 Myths of Open Source Software Open source software is not secure. True or False?

Top 10 Myths of Open Source Software Results of Real-Time Audience Polling for Myth # 10 [insert graph here]

Top 10 Myths of Open Source Software Open source software is not secure. Unlikely

Top 10 Myths of Open Source Software Current events Home security camera hacking Baby monitor hacking A community to verify security vs. a community to create security holes

Conclusions Victor Huang Nutanix, Inc. Joseph Lee Microsoft Corp. John Tsai Facebook, Inc. Sue Xia Walmart eCommerce George Chen Bryan Cave LLP

Questions?

Thank you!