Wednesday, February 22, 2017

Licensing Obligations - Endorsement Restrictions

Endorsement Restrictions:  It is very common for an open source license to restrict use of the various contributor names, companies and or product names which may be associated with the creation of or enhancement to an open source project.  This restriction allows people and entities to freely participate in the community driven development process without concern that downstream consumers or re-distributors might misappropriate or cause market confusion with valuable, often trademark protected intellectual property.

I have found an obligation statement similar to the following, modeled after the 3rd clause in the BSD 3-Clause license, satisfies or exceeds the majority of license terms in this category and is easily understood by business and technology resources:

"Neither the organization nor the names of contributors to the components may be used to endorse or promote products derived from  the components without specific prior written permission."

Next up, source code availability requirements.

Monday, February 13, 2017

How to do Public Domain the Right Way

I ran across this excellent article today in the Tech Times.  It describes how the New York Metropolitan Museum of Art has as of 7 February 2017 released approximately 375,000 high resolution images of its copyrighted artwork under the Creative Commons Zero ("CC0") license.

While I certainly appreciate the Met's effort to share its collection with the world, from an open source attorney's perspective I applaud their choice of the CC0 license to do so.

It doesn't happen very often, but when I run across software intellectual property in the public domain, it can be challenging to trace the provenance back to an explicit grant upon which I feel comfortable advising a client to place their reliance.  Since to my knowledge the earliest software was created in the 1940's and 1950's, it has probably not been in existence long enough for statutory periods to run.  Therefore a grant is best.  I have found some very simply one sentence grants that have to serve on occasion and from a practical standpoint have not been successfully challenged.  But I am much more confident in something with additional substance that attempts to cover specific ground such as:

  1. List of IP rights being addressed
  2. Waiver of those rights
  3. Fallback clause to try to catch any exceptions or loopholes created by specific jurisdictions or future changes or interpretations of law
  4. Limitations of Warranty and Disclaimers to protect the grantor(s) and retain patent and or trademark rights
In my mind the CC0 is best of breed for accomplishing a grant to the public domain and is an excellent vehicle for most such efforts.

Now I just need to work some of these cool Met images into my next presentations :-)

© 2000–2017 The Metropolitan Museum of Art. All rights reserved.


Wednesday, February 8, 2017

Azure IP Advantage includes OSS

I saw this about Microsoft Azure today and was intrigued: 

Microsoft Azure customers now have access to best-in-industry protection against intellectual property (IP) risks in the cloud with Microsoft Azure IP Advantage program. One of the most comprehensive protection programs, it is designed to help customers protect their cloud-based innovations and investments against IP lawsuits and risks. We take seriously our responsibility to help ensure that the cloud is used for good. In partnership with our customers, we are working hard to help create an ecosystem where developers, entrepreneurs, enterprises, and customers can innovate with confidence.
See full information here:  Azure IP Advantage.

For those of you consulting with clients on the benefits and risks of public cloud deployments it appears to be a new development in the industry which should certainly be considered.

Of course this feature is brand new and as far as I am aware untested, but I certainly commend Microsoft for addressing the problem directly. 

I really like the "Springing License" and "Patent Pick" components and am especially impressed that the new policy expressly includes open source code in its indemnity pledge for Azure services. 

See the details in the FAQ and receive a copy of the full terms and conditions from

I wonder if and when Google and Amazon will respond?

Wednesday, February 1, 2017

Licensing Obligations - Attribution, License Text Visibility and Re-distribution

Open source licenses range from extremely simple, single sentence expressions of a copyright holder's terms to very professional, multi-paragraph documents covering everything from attribution to patent protection provisions.  However, most licenses have terms creating categories of obligation on the part of each licensee.  I have found it useful to group these obligations by type and draft clear business language interpretations in order to achieve compliance with both the letter and spirit of applicable licensing terms.  My personal preference is to err on the side of a conservative interpretation when preparing these obligation statements.  This allows a governance process to be largely automated through your choice of simple workflow tools.  With this approach, only exceptional use cases require manual scrutiny and more precise analysis to ensure protection of both licensor and licensee interests.

Attribution:  It is very common for a license to specify one or more specific conditions requiring that the content creator(s) be given explicit credit for their work.

License Visibility and Re-distribution:  Many OSS licenses require license text be retained with the covered components.  Sometimes there are explicit requirements for display at run time or acknowledgement alongside any other expression of copyright or license.  It is also very common to require inclusion of the license text in the event components are redistributed either stand-alone or as part of a derivative work.

I have found an obligation statement similar to the following satisfies or exceeds the vast majority of license terms in both categories and is easily understood by business and technology resources:

"The full text of the applicable <license name and version> license including warranty disclaimers and all copyright, patent, trademark and attribution notices from the components must be made available for end user review through an appropriate user interface at all times and or a copy of the <license name and version> license must be distributed with the components as applicable.

Next up, endorsement restrictions.