Björn Lundell

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.

Other people: Pamela Chestek Andrew Katz Matthias Stürmer

When is distribution not distribution?

‘Distribution’ triggers copyleft obligations, and accurate interpretation of copyleft licences is dependent on an accurate determination of 'distribution'. In the course of other research, we developed a model containing a spectrum of software use-cases illustrating what activities may result in distribution, as defined in law, and which therefore trigger the copyleft conditions in FOSS licences. This talk explains the model, and the use-cases, and explores, from a European Copyright Law perspective, when software can be considered to have been distributed, and what the consequences are for copyleft in each case, with reference to the GPL, AGPL and other FOSS licences.

In researching a wide range of contracts which Swedish schools require their students to enter into to enable the students to access school computing facilities (including the provision of FOSS), it became clear that a key issue, in the case of each contract, was whether the specific item of FOSS had been ‘distributed’ to the students in question, so as to trigger the copyleft condition of the relevant FOSS licence.

Accordingly, we hypothesised a spectrum of cases covering scenarios when distribution definitely occurs (A provides B with a copy of GIMP on a CD), to when it definitely doesn’t occur (A looks over B's shoulder while B is using GIMP and following A's instructions). In between are less clear cases such as: A lends B a phone containing FOSS code; A leases a phone containing FOSS code to B for a year; A allows B to access GIMP on a virtual machine under A’s control; A hands over administrative access to the VM to B. It is not obvious, legally, whether in each of these cases ‘distribution’ has occurred.

The EU case of Peek & Cloppenburg KG v Cassina SpA suggests that distribution can only take place in connection with the transfer of a physical object: a literal reading would suggest that downloading software and transferring it between VMs does not amount to distribution. This case was discussed in UsedSoft GmbH v Oracle International Corp, which approves Cassina, but also considers digital transfer.

It has been argued (under German law) that software is distributed when its functionality is accessed on a SaaS basis (thus making GPL not only equivalent to AGPL, but actually going somewhat further)?

This talk (25 mins) explores the spectrum of use cases, and considers which, under European copyright law, are likely to be considered as triggering copyleft provisions. It also considers whether the result is likely to differ depending on the (copyleft) licence employed, and what some of the practical implications of this analysis may be.

Other people: Andrew Katz