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,ip_roadmap.18464 Page ii Thursday, July 3, 2008 10:38 AM

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Intellectual Property

and Open Source

Van Lindberg

Tomcat ™

The Definitive Guide

Jason Brittain and Ian F. Darwin

Beijing Cambridge Farnham Köln Sebastopol Taipei Tokyo

main.title Page iii Monday, May 19, 2008 11:21 AM

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Intellectual Property and Open Source

by Van Lindberg

Copyright © 2008 Van Lindberg. All rights reserved.

Printed in the United States of America.

Published by O’Reilly Media, Inc., 1005 Gravenstein Highway North, Sebastopol, CA 95472.

O’Reilly books may be purchased for educational, business, or sales promotional use. Online editions are also

available for most titles (http://safari.oreilly.com). For more information, contact our corporate/institutional

sales department: (800) 998-9938 or [email protected].

Editor: Andy Oram

Production Editor: Sumita Mukherji

Copyeditor: Amy Thomson

Proofreader: Nancy Reinhardt

Indexer: Ellen Troutman Zaig

Cover Designer: Karen Montgomery

Interior Designer: David Futato

Illustrator: Robert Romano

Printing History:

July 2008: First Edition.

Nutshell Handbook, the Nutshell Handbook logo, and the O’Reilly logo are registered trademarks of O’Reilly

Media, Inc. Intellectual Property and Open Source and related trade dress are trademarks of O’Reilly Media,

Inc.

Many of the designations used by manufacturers and sellers to distinguish their products are claimed as

trademarks. Where those designations appear in this book, and O’Reilly Media, Inc. was aware of a trademark

claim, the designations have been printed in caps or initial caps.

While every precaution has been taken in the preparation of this book, the publisher and authors assume no

responsibility for errors or omissions, or for damages resulting from the use of the information contained

herein.

ISBN: 978-0-596-51796-0

[M]

1215097554

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CONTENTS

PREFACE ix

1 THE ECONOMIC AND LEGAL FOUNDATIONS OF INTELLECTUAL PROPERTY 1

Law and Code 3

The Types of Intellectual Property 4

Intellectual Property and Market Failure 6

Evaluating the System 18

2 THE PATENT DOCUMENT 21

The Construction of a Patent 22

The Face of the Patent 23

Conception of the Invention 27

The Body of the Patent 37

The Claims 44

Other Resources 47

3 THE PATENT SYSTEM 49

The Patent System As a Knowledge Cache 50

Requirements for Getting a Patent 51

Getting a Patent 60

Patent Proliferation 65

4 COPYRIGHT 71

Copyright in Context 71

The Terms of Copyright 83

The Copyright Term 92

Owning a Copyright 93

The Rights Granted by Copyright 96

5 TRADEMARKS 103

Trademarks Defined 103

The Economic Function of Trademarks 107

Modern Trademark Law in the United States 110

6 TRADE SECRETS 119

Trade Secrets Defined 120

The Flaming Moe: The Life and Death of a Trade Secret 120

Trade Secrets and Software Development 129

Trade Secrets, Businesses, and Consultants 131

7 CONTRACTS AND LICENSES 133

Licenses and Firewalls 133

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Why Contracts and Licenses Matter 134

Contract Law Principles 138

Intellectual Property Contracts 146

Applying a License to Intellectual Property 150

8 THE ECONOMIC AND LEGAL FOUNDATIONS OF OPEN SOURCE SOFTWARE 153

A Brief Digression into Terminology 154

Understanding Open Source 155

Credit Unions and Open Source: An Analogy 155

The Role of Open Source Licenses 168

The Open Source Definition 172

Different Types of Open Source Licenses 177

9 SO I HAVE AN IDEA... 179

Cautionary Tales 179

Employees and Inventions 182

Look At What You Sign 182

The Employer-Employee Relationship 187

Tell the Company 193

What Do You Do? 195

10 CHOOSING A LICENSE 197

Why Do I Need a License? 197

No License Required 198

Proprietary Commercial Licensing 200

Open Source Licensing 201

Why You Should Not Write Your Own License 204

Choosing an Open Source License 207

11 ACCEPTING PATCHES AND CONTRIBUTIONS 215

Back to (Copyright) Basics 215

Three Solutions 217

Administrative Issues 221

12 WORKING WITH THE GPL 223

Daily Life with the GPL 224

Understanding the Terms of the Debate 226

Linking and Licensing 228

Copyright Confusion 229

Thinking About Derivative Works 232

Questions and Answers 235

13 REVERSE ENGINEERING 239

Storming the Castle 239

A Sample Reverse Engineering Procedure 245

The Digital Millennium Copyright Act 251

14 INCORPORATING AS A NON-PROFIT 253

Why Incorporate Your Project? 253

Creating a Non-Profit Entity 257

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Operating a Non-Profit Organization 263

Umbrella Organizations As an Alternative 268

A SAMPLE PROPRIETARY INFORMATION AGREEMENT (PIA) 271

B OPEN SOURCE LICENSE LIST 281

C FREE SOFTWARE LICENSE LIST 285

D FEDORA LICENSE LIST AND GPL COMPATIBILITY 289

E PUBLIC DOMAIN DECLARATION 299

F THE SIMPLIFIED BSD LICENSE 301

G THE APACHE LICENSE, VERSION 2.0 303

H THE MOZILLA PUBLIC LICENSE, VERSION 1.1 309

I THE GNU LESSER GENERAL PUBLIC LICENSE, VERSION 2.1 319

J THE GNU LESSER GENERAL PUBLIC LICENSE, VERSION 3 329

K THE GNU GENERAL PUBLIC LICENSE, VERSION 2, JUNE 1991 333

L THE GNU GENERAL PUBLIC LICENSE, VERSION 3, JUNE 2007 341

M THE OPEN SOFTWARE LICENSE, VERSION 3.0 355

INDEX 359

C O N T E N T S vii

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PREFACE

I have a workbench in my garage where I keep some of my woodworking tools. While I am

not a great carpenter—actually, I’m a pretty terrible carpenter—I still enjoy building things and

working with the wood.

Although I have had my workbench set up for several years, I am always a little bit tentative

when I first use a new power tool. I have learned to respect the fact that tools can be useful,

but they can also be difficult or dangerous if not used correctly. To adopt a phrase used with

some other tools, it can be too easy to shoot yourself in the foot.

This book is about a tool that we use called intellectual property—IP for short. We use IP to

allocate value and create incentives in society. Just like many other powerful tools, IP can be

very useful, but it can also be difficult to work with. You can (easily!) shoot yourself in the foot

with intellectual property if you don’t understand how and why this tool works.

Unfortunately, there are few topics quite as misunderstood as intellectual property. Take a

detour through the comments section of almost any recent Slashdot discussion. Many

contributors begin their comments with, “IANAL, but...” (“I am not a lawyer, but...”) and then

attempt to describe a legal principle, often incorrectly.

Part of my job each day is to work as a translator—translating from “lawyer” to “engineer” and

back. For lawyers, I describe the interactions between computers, networks, and code. For

engineers, I describe how to work with the legal system. My goal for this book is to raise the

level of understanding and discussion about intellectual property and software. If we

understand the function and rationales behind IP law, we can work with IP more easily, discuss

it more fluently, and work together to improve it where necessary.

What This Book Is...and Is Not

This book is meant to be a developer’s documentation for the legal system. As with any other

tool, the workings and results of the legal system can seem inscrutable until the assumptions

and processes underlying the code are laid bare. This book will unravel the United States’

intellectual property system by showing how it is composed of a number of interlocking,

interoperating parts—patents, copyrights, trademarks, trade secrets, and some contracts, all of

which act according to their own internal logic and demands. As much as possible, the minutiae

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of case names, Latin terms, and general legalese will be laid aside as implementation details;

instead, the focus will be on the concepts and rules driving the overall system.

This book is designed to help anyone who interacts with other people through creative

expression, particularly code. For example, those in commercial contexts will find it useful to

learn how their day-to-day jobs brush up against IP law. Entrepreneurs will be particularly

interested in who “owns” the code and the concepts behind their companies. Open source

developers will find it a useful handbook to one of the more esoteric but important parts of

their software project.

This book is not meant to be legal advice about what you should do in any specific situation.

One difficulty with writing about intellectual property (or any legal topic) is that it is essentially

impossible to be absolutely comprehensive. Legal disputes are generally fact-intensive, and

superficially similar cases can lead to very different outcomes. Moving up to a higher level of

abstraction allows individually distinguishable cases to coalesce into recognizable and useful

principles. Generally following these principles should help to guide your understanding and

keep you out of trouble. If specific legal issues do arise, however, it is best to consult a lawyer

about your own situation.

How to Read This Book

This book can be approached as a story or as a reference manual, depending on how you want

to use it. I would suggest reading it as a story first; later sections will build upon earlier

explanations. After you have read this book in its entirety, individual chapters will be much

more useful as you look for guidance on particular IP issues.

This Book As a Story

Different parts of the IP laws developed as responses to particular societal and economic

problems; understanding those problems will help you understand the methods that IP law

uses to accomplish its ends. IP laws have also been developed in response to (or in order to

enable) certain business models. Understanding the business models will also help explain the

use and expansion of IP law in society.

Thus, I will start by showing how economics, politics, psychology, and other disciplines all

made their mark on IP law. I will show how each branch of IP law was designed to deal with

different issues in slightly different ways.

After looking at each type of IP in isolation, I will then examine how they work together in

real life. To do this I will bring in the concepts of contracts and licensing, and we will take a

detour into open source/free software licensing as an embodiment of IP principles.

I will then present a series of situations showing the interaction of IP law with an idea as the

idea moves from conception to realization and is communicated to others. These situations will

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be presented roughly in the chronological order in which they would occur in the development

of the idea.

This Book As a Reference

This book is also designed to work as a desk reference for those generally interested in

intellectual property issues. The individual chapters on patents, copyrights, trademarks, and

trade secrets should be useful to those who come into close contact with those constructs for

the first time or after an extended absence. While I don’t pretend to tell you all you would

need to know as a lawyer, I hope that those sections will also be of use when you need to work

with lawyers to develop or manage IP issues.

The sections on open source (http://opensource.org) licensing are also intended to be of use

to those becoming familiar with open source licenses or needing to pick a license. I will also

spend some time dealing with the particular difficulties that can arise when using the GNU GPL.

Each chapter in the latter half of this book is written to work as a standalone response to a

particular typical situation, even though those chapters will assume the base level of knowledge

about IP law given in the first half of the book. Chapters in the latter half of the book will also

have, as appropriate, sample forms, procedures, or language that can be used to address the

legal situation presented. Once again, however, you cannot assume that any particular form,

procedure, or language will be applicable and effective for your particular situation. If you have

any questions at all, it is best to consult a licensed lawyer in your local jurisdiction.

A Note About Terminology

There are many developers who bristle at the very use of the term “intellectual property.” The

Free Software Foundation (FSF) places it among “Phrases that are Worth Avoiding” (http://

www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty) and Richard M.

Stallman writes frequently against its use on the grounds that it covers many concepts

(copyrights, patents, trademarks, and so on) that have very distinct legal policies and histories

(see http://www.gnu.org/philosophy/not-ipr.html).

Whether or not developers agree with the current legal system, however, those who build

software are on the front lines of creating and using intellectual property. We are already in

the workshop, using the legal tools provided by our society. We need to understand how they

work, if only to avoid having our rights cut off.

As discussed further in Chapter 8, I am aware of the important philosophical differences

implied in the use of the term “free software” as opposed to “open source.” Where applicable,

I will use the correct term to describe how they are both socially and legally different.

Nevertheless, because open source software is a strict superset of free software, I will generally

use the more inclusive term when discussing legal elements common to both.

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The Rest of This Book

This book is divided into two parts. The first part, comprising Chapter 1–Chapter 8, is an

introduction to intellectual property law. The second part, comprising Chapter 9–Chapter 14,

is more of an intellectual property handbook for developers, particularly those working in the

open source space. It is also applicable to those working commercially, but more often than

not your experience with intellectual property will be constrained by your employer’s IP

policies. The quick outline is as follows:

An Introduction to IP Law

• Chapter 1 introduces the four basic types of intellectual property—patents, copyrights,

trademarks, and trade secrets, as well as the philosophical and economic foundations of

intellectual property in general.

• Chapter 2 and Chapter 3 dive into the law by examining the world of patents. The nuts

and bolts of patent documents are explained in Chapter 2, and the process of writing and

prosecuting (obtaining) a patent is examined in Chapter 3. This chapter also examines

patent-specific issues such as priority, prior art, obviousness, and the difficulties inherent

in software patents.

• Chapter 4 transitions to the subject of copyrights. After laying out the history, protections,

and limitations of copyright, this chapter will show how those protections both restrict

and enable code sharing and licensing. Particular attention will be given to the definition

and problem of fair use and the separation of functional and creative works.

• Chapter 5 looks at trademarks and their role in society. The essential requirements for a

trademark are discussed, as well as the process for obtaining, registering, and defending a

mark. This chapter also discusses the permissible uses of a mark and the evolving area of

trademark dilution.

• Chapter 6 analyzes trade secrets as a mechanism for protecting knowledge and describes

the ways in which trade secrets are relevant to today’s enterprises. This chapter also takes

some time to talk about what can and cannot be considered a trade secret in a software

company, particularly in an open source software company.

• Chapter 7 brings together the different types of IP and shows how they can all interact

within a single software project or product. I also examine the role of contracts and licenses

in IP—what the IP law taketh away, a license giveth (at least sometimes). Contracts are

discussed as the mechanism by which private agreements are given the force of law.

• Chapter 8 turns to open source and places it in context. This chapter reexamines some of

the social and economic issues associated with intellectual property, and then looks at how

the mechanism of open source licensing provides a different way of addressing those

concerns.

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An Intellectual Property Handbook for Developers

• Chapter 9 starts with your idea. Who owns it? The answer to that question might be you

or it might be your employer. This chapter discusses IP assignment agreements, covenants

to not compete, and some of the other papers that you signed but didn’t read when you

started working at your job. You will also learn about works for hire and how to determine

who owns what.

• Chapter 10 assumes that you will be releasing code under a source available, open source,

or free software license. How do you apply a license to your code? The different kinds of

licenses will be compared, and the specter of license compatibility will be raised. This

chapter will also discusses dual (or multiple) licensing and the business models associated

with different types of licenses.

• Chapter 11 discusses what happens when you get your first patch. Who owns the patch?

Do you have the right to use it? This chapter examines your right to accept and use patches

and proposes several different alternatives depending on the level of formality in your

project structure.

• Chapter 12 is a dive into the specifics of working with GPL’d code. Building on the licensing

discussions in Chapter 10, this chapter will talk about the special issues raised by the GPL.

This chapter provides answers to some of the most common questions about the GPL,

particularly with regard to linking.

• Chapter 13 is an applied guide to reverse engineering. This chapter takes a look at some

case studies in reverse engineering, and then provides a procedure for pursuing reverse

engineering projects (mostly) safely. Along the way we will discuss the process of test￾driven development as an effective method for managing reverse engineering.

• Chapter 14 concludes with the process of formalizing your project by establishing a non￾profit foundation to guide it. As you will see through the book, the “growing up” of a

project is in part about the process of adopting legal formalities. As your project starts to

acquire contributors and users, you and your users will want to establish the formalities

that will keep your project viable for the long term. This chapter discusses the when, why,

and how of incorporating a non-profit entity to hold and manage the intellectual property

for your project.

Appendixes

A few appendixes are included with this book:

• Appendix A contains a sample proprietary information agreement, the use of which is

covered in Chapter 9.

• Appendix B–Appendix D contain lists of licenses certified by the Open Source Initiative

(OSI), Free Software Foundation, and the Fedora Project.

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