Pamela Chestek

The Open Source Initiative is working on making improvements to its license review process and has a set of recommendations for changes it is considering making, available [link to be provided]. This session will review the proposed changes and also take feedback from the participants on what it got right, what it got wrong, and what it might have missed.

The License Review Working Group of the Open Source Initiative was created to improve the license review process. In the past, the process has been criticized as unpredictable, difficult to navigate, and applying undisclosed requirements. The Working Group developed a set of recommendations for revising the process for reviewing and approving or rejecting licenses submitted to the OSI. The recommendations include separate review standards for new and legacy licenses, a revised group of license categories, and some specific requirements for license submissions. The recommendations are available [link to be provided] and the OSI is in the feedback stage of its process, seeking input on the recommendations. The session will review the proposed changes and also take feedback from the participants on what it got right, what it got wrong, and what it might have missed.

Note that the following is out of scope for the Working Group:

A review of the Open Source Definition itself Replacement tooling for the license-review email list

In a perfect world, lawyers (and the entire legal system) should not be necessary. And in a perfect FOSS world, everyone respects each and every provision of every license. The reality is, however, very different, and enforcement may be a necessary evil. This need does not mean we have to open the gates to be flooded by "copyleft trolls", but to establish a sound enforcement policy, in order to unleash the lawyers only for the most blatant and repeated violations

Affirmative position: FOSS licenses should not be enforced.

1. First Affirmative Constructive (1AC) = 7 minutes a. Cross-examination of First Affirmative by Second Negative = 3 minutes
2. First Negative Constructive (1NC) = 7 minutes a. Cross-examination of First Negative by First Affirmative = 3 minutes
3. Second Affirmative Constructive (2AC) = 7 minutes a. Cross-examination of Second Affirmative by First Negative = 3 minutes
4. Second Negative Constructive (2NC) = 7 minutes a. Cross-examination of Second Negative by Second Affirmative = 3 minutes
5. First Negative Rebuttal (1NR) = 3 minutes
6. First Affirmative Rebuttal (1AR) = 3 minutes
7. Second Negative Rebuttal (2NR) = 3 minutes
8. Second Affirmative Rebuttal (2AR) = 3 minutes

Legal issues are at the heart of FOSS, and lawyers play an important role in the creation and adoption of free software. Around the world, legal practice is constrained and governed by different rules outlining who lawyers can represent, how they can interact with their clients, the nature of advice they can give, how they deal with conflicts of interest and what information they must keep confidential. This panel will talk about how legal ethics plays out specifically for free software.

This session will be a panel of lawyers from the US, the UK, and the EU. We will take on the evergreen question "it is a license or a contract," describing how their respective system distinguishes the two.

Each panelist will begin by surveying their legal system's general jurisprudence on the definition of license and contract and describing how their respective system distinguishes the two. The panelists will then apply these legal concepts to some exemplar free software licenses and offer predictions on how and to what extent one accused of breaching the license would be held accountable.

Bands get together, they perform, they make records, members shuffle in and out. They often don't have any kind of formal agreement or legal entity, or sometimes they were put together by a producer who made all the decisions for the band. Then things fall apart, members split off, they have a falling out with the producer, someone thinks they are more deserving because they contributed more, sometimes one or more going forward as the One True Band. Bands have been around a long time, free software not as long. The session will compare the two types of organizations for similarities and differences to see whether there is anything interesting to learn.

When Free and Open Source Software (FOSS) are becoming more broadly deployed (sometimes as part of proprietary systems) amongst organisations who have limited pre-understanding of the philosophy underlying FOSS there are a number of challenges which need to be successfully addressed. Such challenges include licensing obligations for FOSS and a number of associated legal issues, such as patents, trademarks, procurement law, and various conditions (e.g. FRAND-terms) for use of standards. Many companies and public sector organisations struggle with these challenges and there are sometimes tensions and legal disputes between different interests, which may involve organisations and individuals contributing to specific open source projects.

This panel seeks to address the following overarching question: Which are the contemporary legal and policy challenges needed to be better understood through systematic research studies, and what relevant studies should be designed and conducted in order to produce relevant research results as well as practical outcomes in order to shed light on these challenges?

The (45 minutes) panel will start with short position statements by the panellists and a dialogue between them. Significant time will be allocated to an open discussion on the issues with the audience, and those attending are invited to raise their own concerns and share their own experiences.

When Free and Open Source Software (FOSS) are becoming more broadly deployed (sometimes as part of proprietary systems) amongst organisations who have limited pre-understanding of the philosophy underlying FOSS there are a number of challenges which need to be successfully addressed. Such challenges include licensing obligations for FOSS and a number of associated legal issues, such as patents, trademarks, procurement law, and various conditions (e.g. FRAND-terms) for use of standards. Many companies and public sector organisations struggle with these challenges and there are sometimes tensions and legal disputes between different interests, which may involve organisations and individuals contributing to specific open source projects.

This panel seeks to address the following overarching question: Which are the contemporary legal and policy challenges needed to be better understood through systematic research studies, and what relevant studies should be designed and conducted in order to produce relevant research results as well as practical outcomes in order to shed light on these challenges?

The (45 minutes) panel will start with short position statements by the panellists and a dialogue between them. Significant time will be allocated to an open discussion on the issues with the audience, and those attending are invited to raise their own concerns and share their own experiences.

About the panellists:

Björn Lundell (Ph.D.) is a senior researcher at the University of Skövde, Sweden.

Associate Professor Björn Lundell (Ph.D.) is a senior researcher at the University of Skövde, Sweden. He leads the Software Systems Research Group, has conducted research related to free and open source software for a number of years and participated in a number of research projects in different leading roles. His research is reported in over 100 publications in a variety of international journals and conferences. He was the program co-chair for the 8th and 12th International Conference on Open Source Systems (OSS 2012 and OSS 2016) and is the project leader for the collaborative research project LIM-IT (www.his.se/lim-it), which address fundamental FOSS challenges in collaboration with several industrial partners.

Dr. Matthias Stürmer is head of the Research Center for Digital Sustainability at the Institute of Information Systems at University of Bern since 2013. As a post-doc he is researching, teaching, and consulting on digital sustainability, open source software, open data, open government and ICT procurement. Previously he worked as IT advisory manager at EY (Ernst & Young) and as project leader at Liip AG, a Swiss software company creating agile Internet solutions based on open source technologies. In 2009 Matthias finished his doctoral dissertation at the Chair of Strategic Management and Innovation at ETH Zürich focussing on open source communities and firm involvement. He studied business administration and computer science at University of Bern until 2005 (lic.rer.pol) and wrote his master thesis on Open Source Community Building. Currently Matthias Stürmer is president of tcbe.ch ICT Cluster Bern, member of the board of the open source association CH Open, co-founder and member of the board of Opendata.ch, and secretary of the Swiss Parliamentarian Group for Digital Sustainability. Since 2011 he is member of the city parliament of Bern having initiated the increased use of and contribution to open source software in public administration and schools.

Andrew Katz is a UK-based lawyer specialising in FOSS and open content.

Prior to becoming a lawyer, Andrew Katz was a developer and has released software under the GPL. He advises individuals, corporations, foundations and public sector organisations on FOSS law issues, and is a visiting researcher at the University of Skövde, Sweden, and visiting lecturer at Queen Mary, University of London. He is a founder editor of the Free and Open Source Software Law Review.

Pamela Chestek is the principal of Chestek Legal, which counsels creative communities on branding, marketing, and protecting and sharing content.

It is generally accepted that, even where a FOSS license is silent on patents, there is an implied patent license granted. The theory under US law is equitable estoppel, legal estoppel, or both. A license implied by equitable estoppel is one based on conduct, and a license implied by legal estoppel is based on the principle that one may not license a right, in the case of FOSS licenses the copyright, and then derogate from the right granted by asserting a different right.

The session will briefly cover the concepts of equitable estoppel and legal estoppel and argue that, while both trademarks and patents may be impliedly licensed by equitable estoppel, and patents are always licensed under a theory of legal estoppel, trademarks (qua trademark, not the pure letter string) will never be impliedly licensed under the doctrine of legal estoppel because enforcing trademark rights does not derogate from the copyright grant, i.e., the right to run, study, adapt, redistribute and improve the program.

The backstory of one of the most remarkable trademark battles in Free Software in recent times. Sri Ramkrishna, Director of the GNOME Foundation and Pamela Chestek, GNOME's trademark counsel will talk about the remarkable 24 hours in a public fundraiser that and the events leading up it.

GNOME's public fundraiser to fight for its trademark will go down as one of the most successful operations by a Free Software project and expression of the political power of the Free Software community. Join Pamela Chestek, GNOME's trademark legal counsel and Sri Ramkrishna, Director of GNOME Foundation and learn how events unfold and how a single tweet started a campaign that ended so remarkably.

Why "badgeware" or other licenses that require use of a trademark are non-free licenses under both the Four Freedoms and the Open Source Definition.

There is an understandable desire for credit for creating open source projects. This generally manifests as a requirement that attribution in code may not be removed. Occasionally this desire manifests as imposing a duty to display or retain a trademark in modifications. The OSI-approved Common Public Attribution License Version 1.0 includes a provision like this, as does the FSF-approved Yahoo! Public License Version 1.1. There are still efforts to include these types of provisions, for example, the Beanbooks Public License is another attempt.

This appears to arise because there was an over-expansive interpretation of "attribution" to include "trademark." The talk will discuss the qualitative differences between the two and argue that license that require the use of trademarks are not free licenses under either the Four Freedoms or the Open Source Definition.

Every project has a trademark, its name. Some believe that trademarks and the enforcement of trademark rights are inconsistent with FLOSS principles. But some amount of control over when and how a project name can be used is necessary for the name to remain meaningful as a an identifier of a specific software program with known attributes and qualities. That's the role of trademark law.

Balancing how we would like to be able to use FLOSS trademarks with currently existing trademark law is challenging. Trademarks are fundamentally different from copyrights, so the licensing concepts that work for copyright don't work for the name. Complicating matters further, current trademark jurisprudence generally contemplates that trademark owners are formalized legal entities in hierarchical structure, so the law is ill-suited for a world of collective decisionmaking by non-employees in a dynamic organizational structure.

But it still can come together in a way that serves the goals of free software and meets the requirements of trademark law. I will explore with the participants what the appropriate role of trademarks in FLOSS is and talk about ways that software projects can manage the use of their trademarks with some degree of freedom while still maintaining the validity of the trademark, with a view towards shaping the law so that it is better-suited for handling FLOSS concerns.