What to Protect in Open Source Software 96
eldavojohn writes "I found a brief blog by Marc Fleury on something that seems to almost be an oxymoron — what you need to legally protect in Open Source Software. The short of it is that you should trademark your name and brand it. Which might explain Xen's stance on the use of the brand 'Xen'. Another short blog notes that you should also maintain control of your distribution channels. Fleury also states this interesting tidbit on protecting intellectual property in OSS, 'Short of filing patents, there isn't much you can do in OSS. Let's face it the IP is there for everyone to see. If you are in a mode where a lot of the value is the code itself then open sourcing under GPL or equivalent reciprocal license may be a good choice for you. At least you will make sure that ISV's that re-use your license get in contact with you and many of them will pursue dual-licensing, a strategy that is known to work to monetize an OSS user base (mySQL).' Is there anything else you should take measures to protect in open source software? Is it possible to maintain control of a project under the GPL or are you constantly faced with forks?"
OSS developers really should secure patent rights (Score:3, Informative)
Maison Fleury glosses over patent protection too glibly. The Open Source Software community has been aware of the threats from software patents [mit.edu] for years, yet has done little more than argue that software should not be patentable. During this time, OSS developers have created countless innovations. Had some of these innovations been patented, software patents would not pose as much of a risk because the OSS community would have powerful leverage. Even the risk from patent trolls would be somewhat mitigated because OSS developers could withhold licenses for key innovations from potential licensors of the patent trolls' technologies, drying up all streams of revenue. OSS would also have greater political leverage because it would be easier for groups like the FSF and the OSI to point to the patents as evidence that OSS spurs innovation, not just high-quality craftsmanship.
Patent protection is known to be expensive. But, a lot of money has been invested in OSS. Some of that money could go to paying the costs of securing and maintaining patent rights for OSS innovations. Furthermore, many law firms encourage pro bono work. The OSS community could probably leverage those free legal hours as easily as it leverages developers' hours. The real obstacle to securing patent protection for OSS is political: OSS developers tend to boycott the entire patent system and hope that it will just go away. Unfortunately, ignoring the value of this form of intellectual property protection is a mistake.
Some of the rights that can be secured through software patents are much better suited to OSS goals than copyrights or trademarks. Some OSS developers try to bend copyright and trademark protection in ways that, if accepted, would be harmful to the OSS community, if not the entire software industry. For example, "[s]ome have claimed that an application program that needs a library for its operation is a derivative work of that library." [digital-law-online.info] This line of thinking would make Gimp for Windows a derivative work of the Win32 API, making Gimp a product that is ultimately owned by Microsoft. Using patent rights to exclude use of a library by non-OSS would produce the desired result of encouraging the development of OSS without distorting copyright law in such a self-destructive manner.