© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. by any measure CHOATE HALL & STEWART LLP by any measure CHOATE HALL & STEWART LLP Closed Source/Open Source: An Update on Software Licensing 101 Every once in a while it is useful to go back to the beginning and re-visit how current practices developed over time. It helps to understand where we are now, and where we are headed. When viewed in this light, open source licenses and business models begin stop looking like aberrations and start to look like part of the natural progression of an industry. Karen Copenhaver December 18, 2006 © 2006 Choate, Hall & Stewart LLP

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP What is a copyright? A property right created by statute in each jurisdiction Recognized by other jurisdictions through treaties – Berne Convention is most common Arises upon the creation of a tangible embodiment of expressive content Does not protection ideas, only expression Gives the owner the right to prevent others from using the property – Copying – Creation of a derivative work – Insertion into a compilation or collective work

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Who owns a copyright? The author unless the author is an employee – The ownership of an employee’s copyrightable work product is automatically vested in the employer Why does ownership matter? – Only the author can enforce a copyright – Only the author can transfer ownership of the copyright to another ● Assignment of a copyright must be in writing – Only the author can license others ● A license can be granted orally or in writing, expressly or by implication

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP What is a license? Permission by the owner of property to take some act that the owner has the ability to control. What is the difference between a license and a license agreement? – A license agreement is a contract that includes a license grant. – A contract requires some manifestation of assent to enter into an agreement. What is a sublicense? – A license granted by a licensee (with permission of owner). – The right to grant a sublicense must be expressly stated in a license and will not be implied.

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP What is the license for a book? A book is not licensed, it is sold. The sale of a book is not the sale of the copyright, it is the sale of a copy. The rights of the owner of a copy of a copyrighted work are in the copyright statute. Buying a book does not give you the right to copy the book. Fair use gives you certain rights to copy portions of the book. The sale of used books demonstrates the difference between the sale of a copyrighted work and a license for a copyrighted work. There is no market for the sale of used software.

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Software is the sale of a license Companies wanted to have it both ways, the best of all worlds. They wanted: – All of the intellectual property benefits of a license (control over use and resale) – To avoid sales taxes based on the sale of tangible personal property (a license is an intangible) – To treat a transaction as a sale of goods for revenue recognition and tax purposes – But Uniform Commercial Code Article 2 on the Sale of Goods not to apply because software is the grant of an intangible right and not a good

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Commercial and OS Similarities Both are proprietary – Both are based on ownership of IP – Neither transfer or relinquish ownership Both grant certain rights and retain others Both are often silent on the grant of patent rights Both are governed by the same laws Both are often incompatible with each other if there is an attempt to combine software under different licenses NB – will start categorizing as open source versus closed source rather than commercial or proprietary versus open source

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Commercial and OS Differences Different goals Often written by developers not lawyers Enables modification by unidentified, 2 nd tier licensees Encourages uncontrolled combination and reuse Some OS licenses claim not to be contracts OS licenses have no acceptance procedures OS licenses disclaim all responsibility for software Some OS licenses impose sharing obligations upon redistribution

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Attorney’s Analysis Looking to 4-corners of license (GPL) – Detailed analysis by IANAL not helpful Focus on interpretation of document and © Act – Consensus often directly in conflict with words – Consensus generally conflicts with © caselaw Identification of the parties to the “contract” – Parol evidence is to indicate intent of parties – Question authority to bind the licensor Anticipate judge will be acquiror’s counsel

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Developer’s Perspective Familiar with community consensus Focus on common sense Comfortable with rolling interpretation that reflects programming and industry developments Look to direction from project committers ● Linus Torvald See absence of litigation as proof of little or no risk Frustrated with “plain English” discussions Can describe function in many different ways

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Business Benefits of Open Source For developers – Reduced R&D – Rapidly increased “go-to-market” through leveraging the viral nature of projects ● Creation of install base – “monetizing future users” – Off-load maintenance of infrastructure – Address competition For customers – Avoid vendor lock-in – Reduce costs

© 2004 Black Duck Software, Inc. All Rights Reserved. Copyright © Black Duck Software, Inc. All Rights Reserved. CHOATE HALL & STEWART LLP Conclusions OS is really the forefront of a waive of intense collaboration and interdependency OS is not Y2K and will not go away OS has different licensing, development and business models – it is an entirely different approach to building value OS will be increasingly commercial Companies are committed to compliance with OS licenses OS practices will mature Commercial licenses will adopt OS terms Automation is essential to make all of this frictionless