Open source for lawyers

The electives term at BPP has finally brought me back to some interesting areas of law, particularly IP and technology law. I first became interested in this area during my third year at LSE while studying IT and the Law with the awesome Andrew Murray, and have been thinking about it ever since. Most of this interest has been in Open Source Software, and after trying to ask some questions about ‘open source law’ in class a week or so back, I realised that there really isn’t too much knowledge about it. As a result, I got my act together (for both IT and law, getting off of your backside isn’t exactly an appropriate phrase) and did a little research. This isn’t a brand new area of research, or particularly in depth; it’s more of a summary of what the position is, and why English lawyers should know about open source. As a slight aside, I’m going to include free software (as opposed to freeware) under open source, as the legal issues are broadly the same.

What is open source?
Most software and firmware used on a daily basis is proprietary; someone owns the code that runs it, and normally charges you to use it. You are allowed to use the outcome of the code (what you see onscreen), but you can’t see the code itself, and you’re certainly not able to modify it. The code in Open Source Software is still ‘owned’ by someone; someone has written it and has intangible property rights in it. The difference, however, is that the owner allows anyone to access the code behind the software and modify it. The standard definition of open source can be found on the Open Source Initiative (OSI) site; the core features are that you must allow access to the source code (article 2), and allow others to modify and adapt this code (article 3). The permissions for these uses come from the variety of open source licences available; to be considered an open source licence, it should comply with the Open Source Definition. The non-legal basis for open source is really the concept of collaboration on software creation and development, and the freedom of code. In principle, anyone is able to write their own programs, make or suggest alterations to the code, fix bugs and come up with their own little add-ons (as a very basic example/plug, I wrote Lullaby to be used with the Amarok music player). However, most open source users will probably stick to just using the programs that others provide.

While until recently Open Source Software was a relatively niche area, it is becoming increasingly popular. The most well-known examples are the Firefox web browser and the OpenOffice suite. These are popular as they do not require changing operating system, and are visually similar enough in their basic operation to Internet Explorer and Office for a relatively seamless change. On a larger scale, open source operating systems, such as Ubuntu, are becoming increasingly popular. Ubuntu is based on the Linux kernel, which probably forms the basis of most people’s experiences with open source. Android, the operating system on the new Google Nexus One smartphone, is also Linux-based. The use of open source is also expanding rapidly; according to one study, 25% of companies use open source software in some way, and HM Government has pledged to increase its use of open source software by 10% (Kemp, 2009).

Economic feasibility
Open source has not come onto the radar of many IP lawyers until recently simply because there was less money in it. By allowing anyone to use the code for free, the owners were refusing of a key revenue stream of selling licences to use the code. According to Gupta “firms will tend to favour maximum IP protection”; it is easier to make money from programs if you charge everyone for their use. This reluctance to adopt open source standards by larger companies has meant that the UK has no case law on open source software, and has attracted very little legal attention.

However, more and more companies are beginning to develop open source software, often on a consultancy basis (it’s all very well being able to use code for free, but if what you want isn’t already out there you need to get someone to write it), or as in-house research in a larger company. It has now reached the point where the European Commission has had to consider the impact of open source software in its competition decisions, as in Comp/M.5529 – Oracle v. Sun Microsystems. The use of open source code will greatly affect the value of a company’s intellectual property, and so must be considered in any corporate deal; if a company must publish any code it has produced, or has been using open source code instead of producing its own, its assets are significantly reduced. The owner of the copyright will produce what is essentially a contract between itself and the user of the software, dictating how the user may use the software and for what purposes.

IP Law 101
The two types of intellectual property which will normally to apply to open source software, as with any software, are copyright and patent.

Computer programs are considered literary works, and therefore automatically subject to copyright, under s3(1)(b) Copyright, Designs and Patents Act 1988 (CDPA). A work is copyrighted from the point of creation to the end of a 70 year period from the death of the author (s12(2) CDPA), which of course if far longer than necessary for a computer program, which will become outdated much earlier. Only the owner of the copyright (the author, unless the work was made in the course of employment, or sold to someone else) can copy and issue copies of copyrighted literary works under ss16(1)(a) and (b) CDPA. S16(2) prohibits anyone else from doing these acts “without licence of the copyright owner”. Licencing is where software becomes distributable, and in the case of proprietary software, commercially viable. This is most often an End User Licence Agreement, either included in the packaging of the product or as a click-though contract (the ‘I Agree’ button). Most of the price you pay for computer software is for the licence agreement. Without the licence, any use of software would be a violation of s16; to use the software you need to make a copy of it on your computer, and for this you need the permission of the owner. Without the licence, you do not have permission.

Patents are an interesting area in information law. In the US it is far easier to protect a program as a patent, and a lot of the case law seems to come from patent cases. Here, statute has tried to shoehorn programs into copyright law instead (they don’t fit easily into either the traditional idea of a copyright or patent), and has heavily restricted the instances where you can get a program patented. Patents do not arise automatically as in copyright, but must be applied for from the Intellectual Property Office; the Patents Act 1977 (PA) lays out the criteria that need to be met before the IPO will grant a patent. S1(2)(b) PA prevents a literary work from being patented; as established, programs are literary works under s3(1)(b) CDPA. For a program to be considered for a patent in the UK it must be capable of producing a ‘technical effect’. This is normally construed as necessary for the operation of machinery. The effect of this is that programs are only patentable as a vital part of making the machinery patentable. Once registered, a patent lasts for 20 years, after which the production method (in this case including the code) would have to be released to the public (s25(1) PA). S60(1)PA lists a variety of acts which are an infringement of the patent if done without the patent owner’s permission; again, in order to do anything with the software you would need a licence from the patent owner, which acts as permission.

How open source fits in
Copyright
The term ‘open source’ covers a variety of different copyright licences that are issued on programs. These fit in the same way as any proprietary licence under s16(2)CDPA, with the difference being that they’re free, and will allow you significantly greater freedoms with the program than most proprietary licences. While there may be a fee for the reproduction costs (for example, burning the CD it is transferred on, or a contribution towards hosting), there is no charge for the licence; most of the time it will be entirely free to download the software. To be considered open source by the OSI, the licence needs to meet all the criteria of the Open Source Definition; currently, the OSI has approved 66 licences as open source, while others are still pending approval.

By far the most popular licences are the GNU General Public Licence versions 2 and 3 (GPL and GPLv3). Both of these meet the essential criteria of open source in that they allow access to the source code and allow the user to modify the code freely, and also introduce what are known as ‘copyleft’ provisions (clause 2 of both licences). Under copyleft, you are free to make any modifications to the source code you like, and run them without restrictions for your own private use. You are also permitted to publish these changes, but these changes must be released under the same licence (in this case the GPL) as the original code. This principle has also been introduced into copyright law on a much broader scale by the Creative Commons organisation. Creative Commons produces a range of licences allowing any form of copyrightable work to be shared without many of the rights automatically reserved in copyright, such as free distribution. The licences are currently designed for US law, although do still function under English law; a UK-specific version is due to launch soon.

A final point needs to be made about the difference between modifications and compilations. A modification is a change in the original program, whereas a compilation will be a combination of programs. While these programs may work together, to be considered a compilation they need to have a degree of independence from one another. Under both versions of the GPL and the principles of copyleft, modifications would need to be released under the same licence as the original program. Compilations, however, could contain a variety of different licences for each separate program, as well as having a copyright in the compilation as a whole (similar in some respects to the copyright in typographical arrangements under s1(1)(c) CDPA).

Patents
As mentioned before, English law doesn’t normally permit patents for programs, so this is unlikely to be a problem. However, GPLv3 clause 11 does provide for patent claims. If code released under GPLv3 is subject to a patent claim, it is deemed to be released on a non-exclusive free licence, so that anyone may use it. Again, any changes made to the code must be released under the GPL, or the corresponding source code must be released. In the USA, patent co-operation agreements have been used so that larger companies do not enforce their patents against users of open source software.

Conclusion
Open source software, as with proprietary software, uses licences to allow users to copy and utilise programs. Open source, however, allows users to freely reproduce the software and even make publicly available adaptations to it. Open source software is only going to become a larger share of the software market. While the basic concept of open source suggests IP law will be less of an issue than it would in proprietary software, it is still going to be increasingly necessary for IP lawyers to have at least a grounding in the basic principles of open source.

Further reading

• The Open Source Definition
• Creative Commons licences
• Wikipedia entry on open source software
• International Free and Open Source Software Law Review.

Bibliography

• Copyright, Designs and Patents Act 1988
• Patents Act 1977
• General Public Licence v2
• General Public Licence v3
• Open Source Definition
• Oracle/Sun deal approved. EU Focus 2010, 269, 6-7
• Are open standards a prerequisite to open source? A perspective in light of technical and legal developments. Ankur Gupta. Communications and Technology Law Review 2009, 15(1), 3-8
• Current developments in open source software. Richard Kemp. Computer Law and Security Review 2009, 25(6), 569-582
• The nature of computer programs: tangible? goods? personal property? intellectual property? Ken Moon. European Intellectual Property Review 2009
• Packaging open source. Mark Webbink. International Free and Open Source Software Law Review 2009, 1(2), 83-98
• Passport without a visa: open source software licensing and trademarks. Tiki Dare I.F.O.S.S.L.R. 2009, 1(2), 99-110.

Comfort Cornbread

I’ve had proper cornbread a couples times; the first time was in Boston with Carrie, then at Bodean’s in Soho. During Blues Extravaganza I spent a fair amount of time talking about soul food, and someone was kind enough to give me some recipes. Truth be told this is based off a different recipe, but I have incorporated some ideas from Andrew’s recipe into it. The recipe said to use a 9inch square tin, but seeing as I don’t have one of those (who really uses square tins?) I ended up using my brownie tin and small loaf tin. Just fill whatever tins you can find about ¾ of the way up. If you hadn’t guessed, this makes a hell of a lot of cornbread; you’ll probably need to freeze a lot of it.

Cornbread is awesome. It’s not exactly cake, but it’s certainly not something you’d use for sandwiches either. It’s bright yellow, kind of grainy, and comes in sweet or savoury versions. The original version is savoury, and would work well with the traditional chilli etc.

Then I played about a bit and made the sweet blueberry version. Damn. I would say I hit a six with it, but saying I hit it out of the ballpark is probably more culturally coherent. It’s good. I ate way too much of it when I first made it, because it’s tastes *brilliant* warm. If you want the savoury version, just skip the honey and blueberries.

Adapted from the BBC Food recipe (seriously? Neneh Cherry’s a cook now?)

• 13 oz plain flour
• 8 oz cornmeal (Try the world foods aisle)
• 1 tsp salt (1/2 if you’re making the sweet version)
• 4 tsp baking powder
• 4oz caster sugar
• 4tbsp honey
• 500ml (just less than a pint) milk
• 2 eggs (I’ll be honest; I forgot the eggs when I made the sweet version. It’s denser and a little doughy, but still awesome)
• 4oz melted butter
• ~6oz blueberries (I used frozen, but you could use fresh. The exact quantity isn’t important)

1. Preheat the oven to 200C/gas 6 (I used gas 7, because my oven runs a little cool I think), and put the shelf towards the top of the oven.
2. Grease the tins you’re using well.
3. Sieve the flour, and mix all the dry ingredients (flour, cornmeal, salt, baking powder, sugar) together in a big bowl.
4. Out the milk in a jug, and mix in the eggs and honey. I tried mixing in the butter, but it solidified a bit (which I really should have thought about first).
5. Mix the milk mix into the dry ingredients and stir well. Add in the melted butter and mix well until combined.
6. Mix in the blueberries.
7. Pour the mixture into whatever tins you’re using, and place in the top of the oven.
8. Bake for 20 minutes to half an hour. Check it by putting a skewer through the middle and seeing if it comes out clean.
9. Let it cool for 5-10 minutes, then turn out.

Sadly, this mixture doesn’t taste so great straight out of the bowl

Apple loaf cake

This cake is one of the few I make where I can safely say that I had no recipe to work from. I knew the basic half-fat-to-flour rule, and went from there. It was also my introduction to stress baking, the idea that I can beat up a person or a bowl of butter and sugar. I put the basic ingredients in a bowl, added things I like and went with it. Two things I absolutely adore are apple and cinnamon (hardly an original combination, I know), and this cake was born. It’s crumbly, it’s gooey, it’s tasty! It’s also in ounces, because old-school me still thinks in ounces unless you put a recipe in front of me.

1. 8oz SR flour (or plain flour + some baking powder)
2. 4oz unsalted butter (preferably at room temperature, but if you’re stress baking you probably haven’t thought that far ahead)
3. 4oz dark soft brown sugar, plus extra for on top
4. 2 eggs
5. 1 Bramley apple (preferably a larger one)
6. Raisins/sultanas. As many as you like
7. Cinnamon. As much as you like (which is a *lot* for me), but start with about ½-1 teaspoon maybe.
8. Nutmeg. Not too much, unless you like that kind of thing.

• Preheat the oven to gas mark 5/160 centigrade-ish
• Sift the flour, cinnamon and nutmeg. Chop up the butter and rub into the flour (think just how annoyed you are with that person) until you get fine breadcrumbs.
• Stir in the sugar. Sometimes the sugar will have large hard lumps in; press as many as you can out, but if you leave a few in you just get toffee-type bits.
• Beat the eggs lightly and mix into the dry ingredients. It’ll probably be quite stiff, but don’t worry.
• Peel and chop the apple. I like large chunks (quarter, then into maybe nine pieces), but it’s up to you
• Stir the apple and raisins into the mixture. There will be a lot of apple for the mixture, but this is good
• Scoop into a small loaf tin, then sprinkle some more sugar on top.
• Bake for about an hour and a quarter, maybe a bit longer if you like you’re cake less gooey.
• Leave to cool for 15 minutes, then turn out to finish cooling.

Tastes amazing warm, with vanilla ice cream.

Peanut Butter Sandwich Cookies

These things are good. *Really* good. Sadly, they’re also really unhealthy. On the bright side, they’re also gluten-free, so more people can share in the unhealthiness. I first found the recipe in Linda Collister’s ‘Easy Baking’, then mixed in a little of Rachael Ray recipe I found, then promptly lost again. These are now my Dad’s favourite, and I’ve been ordered to bake more of them at Easter. Actually, I could do with some of them right now.

• 8oz Peanut Butter
• 4oz Caster Sugar
• 2tsps Baking Powder
• 1 Egg
• Jam

1. Preheat the oven to gas 5/6 – around 180C
2. Grease a baking tray (you may need 2)
3. Mix together the peanut butter, sugar and baking powder
4. Beat the egg separately, then mix into the peanut butter. The mixture will go a lot stiffer (which really confused me the first time I made them).
5. Split the mixture into about 24 teaspoon-sized chunks, and spread them out on the baking tray (they’re going to expand, so give them a fair amount of space). If you’re going to do these as sandwich cookies, you need to have an even number.
6. Bake for about 20 minutes. They should be a little soft in the middle still. Put them out to cool.
7. Spread the bottoms of half of them with jam, then stick these to the others.

Blues Extravaganza 2

Omnomnom blues! This weekend was absolutely awesome; my head is still buzzing a little from everything I’ve learnt, all the concepts we discussed and some amazing dances. So much went on this weekend I wanted to try and get down some notes on it as much for my own benefit as anyone else’s. If you were there and want to correct anything I’ve misremembered, go right ahead.

Classes
A Taste of Blues
This was a pretty cool introduction to the weekend; a few different basic blues dances like slow drag, ballrooming and struttin’. Struttin’ was probably the most difficult to pick up, but everyone seemed to be using it social dancing in the evenings, and it was going pretty well. Doing just slow drag made me even more concerned about the renaming of Herräng blues to Slow Drag Night, although it may be more appropriate given the type of blues they play there.

Gettin’ Janky With It
This was intended to ‘roughen up’ our blues a little – moving away from just doing smooth blues. It was a lot of fun, but with some people the partial weight changes just become hip sways (I may well have been one of those people). The Mooch and other hip moves were awesome though, and for once I seem to have remembered them

Gospel and the Blues
This was my favourite class of the weekend. Damon explained the links and shared history of blues and gospel, and got us expressing the music, shifting focus between upwards, outwards and down. We then moved on to dancing with someone to gospel, and reacting to each other’s movements. It was great to try dancing with someone without necessarily leading and following. I know the solo stuff is where I need to do the most work; I get far more self-conscious dancing solo than when I’m partnered up, although by Sunday evening this was beginning to change. This class also featured possibly my favourite dance of the weekend between two people who shall remain nameless :p

I also really enjoyed the theoretical, even philosophical, points behind it; dancing being an expression of spirit (not necessarily meaning the spiritual), and the roots of blues dancing. I think a lot of people seem to forget where blues came from, and it was fascinating to hear the early history of the dancing and how it developed.

Down Home Blues
*head explodes*
Polyrhythms. Yeah. As well as working on the Slow Drag from the morning, we tried moving different parts of our bodies in time to different parts of the music, culminating in the Shake n’ Bake. I can bake (in both the literal and dancing senses), but heaven knows I couldn’t shake for the life of me. Try as I might I can’t seem to shimmy properly, let alone shake.

Teaching the Blues
I signed up for both levels, but I think I was being overoptimistic on the level 2 classes. This class was designed on focussing on technique when teaching blues, but I was having enough problems with the technique myself. Damon basically broke the technique (or blues aesthetic) down into four aspects: posture, frame (more specifically relationship to your partner), pulse (relationship to the music), and internal tension. Internal tension is definitely going to take some work; I know what I should be doing, and I think I’m beginning to do it, but more blues parties are definitely required to perfect it :p

Riffin’ and Cuttin’
Solo blues? Challenging another person? I never stood a chance. This class was based on improvising off of the solo blues of another person; continually building on each other’s movements and seeing where you ended up. Cuttin’ basically involved trying to best each other’s solo blues. I’d love to see more of this at blues events, and want to try it myself, but I still need to work on my solo blues more. Waiting for the kettle to boil is going to get more fun :p

Solo Blues
This was based around a routine to Feelin’ Good (why the apostrophe? Because the apostrophe’s cool!). Annoyingly, my knee decided to give up halfway through the class and I had to give up. Truth be told I stepped outside for the rest of the class, as I find it really frustrating nowadays to sit and watch a class I should be participating in. I’ve heard good things about the rest of the class, and I think there may be a video somewhere.

Blues Dancing to Faster Music
A lot of the time recently I’ve found myself changing dance to the tempo (e.g. blues for slow, lindy for medium, bal for fast), rather than adapting the dance I was doing before. This really helped change that. We started off struttin’, and then added in a few moves that are also used (in a different way) in lindy. I had to drop out at the applejacks, which I already knew would be a bad idea, but tried out a lot of the other moves at Charlotte St in the evening.

Social Dancing
We were at Charlotte St Blues every evening. My word, I love that place. Friday and Saturday nights were in the basement. I spent a lot of Friday night catching up with friends, but also got to try leading some blues, which pretty much never happens. I got a few compliments, but I don’t think I’ll ever lead enough to get very good. Did enjoy the dances a lot though

By Saturday night I could really feel my dancing had changed, even after just a day’s classes. I felt more relaxed, and was moving more naturally rather than concentrating on following. Had some awesome dances, both with people I already knew and people I’d met in class. Also got to dance with Damon, which was obviously awesome, but also made me smile as I felt I really was able to do a lot of the stuff he’d taught in class that day.

Sunday night I didn’t dance so much, but probably had more fun. After chilling out and getting food (and swapping cider-based stories), Redemption Blues Band were playing. Redemption are always awesome; I seriously can’t remember ever hearing better live blues. Got talking to a non-dancer there, trying to persuade her to take blues dance classes, and spent a fair amount of time chatting to other people. Also had some dances playing about with different connections, although I’d dispute I was following when being carried across the flaw – that was just holding on for grim death :p

Cake!
Well, cornbread. As I’ve said before, two things make me happy: dancing and cake. This weekend may well have started off a soul food obsession, starting off with cornbread. Someone remind me to post the recipe once I’ve perfected it?

Musics!
Am I Wrong by Keb’Mo’. Go listen. Now.

Monkey bread

I was thinking about setting up a separate baking blog, seeing as I have so many recipes, but I realised that most people read this on Facebook anyway, so there wasn’t too much point. There’s still going to be a lot more baking on here now, but I’m keeping things simple

Here’s the deal; I hate bananas. I cannot stand the taste, texture or smell of them. As a kid they were pretty much the only fruit I would eat (I always ate my vegetables, in my defence), so there was one in my lunchbox everyday, to the point where I got sick of them.

So when I went to Herrang a couple of years ago for the first time, and everyone went on about the banana bread, naturally I stuck to the brownies (which, truth be told, is not such a tragedy when you’re talking about Café Blue Moon brownies). Then about 9 months later at London Lindy Exchange, someone turned up with cake. Good cake, amazing cake. Someone then told me it was the Herrang banana bread recipe. This confused me; it didn’t taste like bananas. It tasted, well, good.

A few months ago, a blog I read came up with a banana bread recipe. I tried it, played about with it, and came up with something I liked. Then, a few weeks ago, I was baking it at the same time as brownies. There was banana bread mix, there was chocolate – what was I supposed to do?! I called it Monkey Bread, due to the mix of bananas, nuts and chocolate (think Coco-pops). I’m not sure I should admit to knowing this (there was a perfectly logical reason, I swear, involving silicon bakeware and a lack of stability), but the half-baked dough also tastes amazing.

This stuff is really good warm, but I actually think it tastes better cold – you taste the nuts more. Not only is this almost wholesome (not healthy, but contains fruit and nuts and stuff), but Anna assures me banana bread is entirely legitimate as a breakfast food

Monkey Bread

Adapted from DOnestic SLuttery’s banana bread

• 225g self-raising flour
• 110g butter
• 75g caster sugar (golden if you’ve got it, but it doesn’t matter too much)
• 2 bananas (as ripe as possible)
• 2 eggs
• 2tbsp honey or maple syrup (or a little more if you’re a sugar fiend)
• ~ 80g dark chocolate
• ~150g chopped walnuts (pecans work too)

1. Chop the walnuts a bit more if you don’t like large lumps of nuts.
2. Cut the chocolate into large-ish chips.
3. Mash the bananas up until smooth (you may want to open the window while you do this, because, yuck, banana).
4. Preheat oven to 180 centigrade/ gas mark 4, and grease/line a small loaf tin (or bask in the wonder of bendy silicon ones).
5. Rub the flour and butter together until you get fine breadcrumbs. Stir in the sugar.
6. Beat the eggs and stir in, along with the honey. The mixture will be very thick, but don’t worry.
7. Mix in the banana mush. See? Cake consistency.
8. Stir in the chocolate and nuts.
9. Put into the loaf tin and bake for about an hour and a quarter. If you’re using a silicon loaf tin, you may want to put a baking sheet underneath (unless you like half-baked cake mix).
10. Take out when a skewer comes out clean (well, clean besides the melted chocolate goodness), and leave to cool.
11. Slice, eat, feel good about yourself