 Good morning, welcome to stage C Before we start I would like to remind you to run by volunteers and we need more volunteers Most notably to run the to operate the camera and audio system But there are all kind of things that we still need people to take shift for so Yeah, you should really go to volunteer.emfcam.org But for now I will leave you with Caroline Graham who is going to talk to you about open source Hello, first thing I should say is I am not a technology person. I am not even a technology lawyer I'm a corporate lawyer. So I'm speaking to you about issues that derive that arise from from open source software Legally ownership and licensing talking a little bit about the the history and the development of open source and how it has Come to the kind of legal status that it's at now and looking at the future and how to put it on a more sustainable footing Because I think we have some quite major issues about how sustainable open source is in a in a the current environment where Largely it's being developed free of charge by people Which isn't really a model that can operate long term My first encounter with open source is actually relatively recently because as I being a corporate lawyer I haven't had the kind of involvement as that an IT or an IP lawyer would have in this world But I was contacted by a client and I'll talk in a bit more detail about that later just a few years ago Who they had issues with the ownership of their open source product which they had been developing for many years? In a fairly sort of benign environment where they're just been kind of developing it during the day as part of their everyday job and Changes in their employment environment meant that that was now Becoming more challenging and they wanted to protect the open source nature of the software that they had developed themselves over many years And so what we did was that I'll say I'll discuss that in a little bit more detail later on We established a more Sustainable ownership structure to operate that So just for anybody who isn't sort of familiar with the way the open source software is on a legal basis It is software which is licensed. I think it's very Commonly assumed that because something is open source. It's just out there and available, but there is a license That's axiomatic to the whole the whole structure The license is is on certain terms. It is licensed free hence the The open nature of it and it's on terms that grant certain freedoms to the licensee What those freedoms are though? What those terms are I'll talk a little bit more about some of the main licenses that are available at the People commonly use in open source, but it is important to realize that this is That when you use open source software you you're using it on the terms of a legal license a legal contract It's increasingly an important feature of the software landscape there are Nearly all companies now large groups and companies are using some open source in there The IT environment that poses challenges of its own those that there is a lot of people would argue that it's not being managed Very strategically in those organizations because it's not being paid for and not having to go through a procurement process It may be being seen as more of a free-for-all within IT departments and development departments But as mentioned there are a variety of licensing structures That are available and we'll talk about some of those in a bit more detail So it has become increasingly important in the commercial environment Number of reasons for that obviously a lot of technological change now that we have more sort of software-oriented architecture now that we've got more Cloud-based internet this And obviously the the proliferation of different platforms different hardware platforms have made The opens up software much more Relevant in the in the technological space the economic environment since 2008 has also meant that in order to achieve a sort of competitive advantage People are looking for lower cost bases for that for their development projects It's also regarded as as more You can innovate more quickly off an open source platform And there is more collaboration possible in certain areas which is seen as key in the economic environment now And the changing strategic approach of large users the flexibility and the shorter development times as seen as Critical to just getting projects off the ground. So there's been a huge change in the way it's being used Okay, so Talk about the free software foundation founded in 1985 by Richard Sturman This was the beginning reps of the philosophy of open source. He was a an academic at MIT. He was being required to Operate anything that he developed was was going out on commercial licenses and he was very unhappy with the way that was that was operating And he left MIT and set up the free software foundation to oversee the GNU project the development of the operating system Which obviously became became Linux the kernel of Linux GNU, I love that it actually stands as a recursive argument stands for GNU's not Unix and this was an attempt to undermine the Unix dominance in the market for freedoms were would if he were Those which he considered to be kind of key to what open source is the the right to run the software for any purpose commercially or otherwise Anything you want to do to access and freely adapt source code to redistribute to anyone, but that's the The interesting part of I think what Richard Sturman was trying to do you are able to redistribute the software to anyone you're able to adapt it and Derive your own product from it but when you do so and this is one of this is the Restrictive licensing model when you do so you are obliged to license whatever you've derived on the same Terms so you can't take this at the free software and essentially use it for commercial purposes I'm just going to read a little bit from the the GNU manifesto The Free Software Foundation manifesto which Richard Sturman devised because I think that this kind of reflects the philosophical underpinning of Of the whole movement It has many things are changing underneath this now, but I think this is this is useful Richard Sturman said I consider it the golden rule requires that if I like a program I must share it with other people who like it Software sellers want to divide the users and conquer them making each user agree not to share with others I refuse to break solidarity with other users in this way I cannot in good conscience sign a non-disclosure agreement or a software license agreement So that I can continue to use computers without dishonour I have decided to put together a sufficient body of free software so that I will be able to get along without any software That is not free once GNU is written everyone will be able to obtain good system software free just like air This means much more than saving everyone the price of a UNIX license It means that much wasteful duplication of system programming effort will be avoided This effort can go instead into advancing the state of the art Extracting money from users of a program by restricting their use of it is destructive Because the restrictions reduce the amount and the ways that the program can be used This reduces the amount of wealth that humanity derives from the program when there is a deliberate choice to restrict the harmful consequences our deliberate destruction So you see it's very philosophical very ideological and a bit hippie ish really a bit a bit commie And it was felt by the late 90s as the ideal that sort of ideological approach was receding it began to be felt that that was getting in the way of the wider adoption of open-source and the open-source initiative was set up in the late 90s with their own definition and this essentially On the slide of the the ten components of the definition of open-source software for these purposes I think that Perhaps the most interesting Aspect of this is that there is that the authors of derived work can retain the source code and that you have a freedom to Distribute derived works on any terms you like so in contrast to the GNU and the licenses on that model You're into you're allowed to make money off of it in essence So to come to that we now are dealing with a variety of licensing models that operate in parallel first the restrictive or copy-left approach and This is the in the model of the GNU license This is the the idea that whatever you derive from the open-source software you must License that on the same terms so that it carries on being a fully open-source product the GPL the general public license is the kind of core example of this Only a 36 percent market share now in 2010 the GPL represented 64 percent of open-source software And now it's only 36 is massively in decline as a as a model of licensing the permissive license Has is very much in the ascendant the MIT license is now Accounts for 26 percent of the code license in open-source and in 2010 that was only 4 percent Similarly the Apache license 16 percent now only 4 percent in 2010 Another of those are the BSD licenses accounts for about 6 percent my personal favorite Less than 1 percent of the market, but it's the do what the fuck you want to public license I think that's a great name, and it pretty much sums up what it's all about This is the trend we're going towards a permissive licensing structure personally because I'm attracted to the The free-for-all model. I think it's a bit of a shame that we're going that way but if it means that that the Whole concept of open-source is getting more gaining more traction than I guess a surprise worth paying But I want to talk a little bit because as I say, I'm not a technology geek, but I am a legal geek And I'm very interested in the way the GPL works. I find it a very subversive Model of licensing it takes what we normally expect intellectual property law to be doing and Turns it on its head and turns it to the advantage of the licensee We think about intellectual property law as protecting the intellectual rights of the creator Often referred to as creators rights. That's what we tend to assume. It's there to do and What the GPL does is say that the if you use what you have received under this license What you're entitled to use under this license you must license it back on the same terms it perpetuates an open Type of intellectual property ownership and intellectual property licensing when I say though that we we start from the point of view of Thinking of intellectual property law as a protecting of somebody's rights of into enabling them to benefit financially usually from their own intellectual work in Fact whilst that is true if you go back to the original reasons for the patent system Which is the first of the intellectual property Models to get developed if you go back and look at where that comes from The purpose of patent law originally was not to protect people's ownership because people were doing that through secrecy It was actually to achieve Openness it was to you got to the protection of the law only if you published The technology that you had developed the idea was that it massively speeded up the progress of technological development by making prior inventions accessible and Readable to the public to people who might develop them it moved it forward and in that sense The GPL is actually rather similar to that Approach it takes what what has been achieved and says develop it but publish it It just doesn't give people the commercial protection and I'll come on to why I think that's an issue As I say you invert what we usually think of as the purpose of the law I also as a legal geek find the GPL quite exciting because it's got no governing law clause It doesn't say it's governed by English law or New York law or Delaware law. It's just silent on the subject So you go back to first principles. You have to go. Okay. Who is making the contract with whom in what state? It's therefore it can be interpreted differently under different legal systems So that's great in in certain environments in French in the French courts. It's a real problem because French the French Legal system massively prioritizes creators rights and intellectual property rights as a personal asset The GPL is very difficult to operate in France the key terms of the GPL Perpetual and irrevocable So once you've granted the license you can't pull it back if you've granted if you've Issued your software under the GPL. There's no kind of pulling it back in and relicensing it on a different basis It's out there and you can't revoke it You have complete freedom as a licensee under the GPL to do whatever you like with the software But as soon as you distribute or convey the software to anybody else Whether that's as itself or as part of a derived product that you've created at that point You are restricted in what you can do. You are as I've said before obliged to license it on the same terms Any breach of the license so if you purport to distribute the software and don't do so under the GPL revokes your rights under the license that you Benefit it. You're benefiting from but that's really Tricky as well because what happens if you have licensed something that comprises The software that you're the beneficiary of you on license it to somebody else What happens then if your license is revoked then you have nothing to license yourself So the license is specific on that also all downstream licensing Is included in the original license so it's a completely flat structure. There's no license and sub license and sub sub license It's just everybody benefits from the original software under the original license that it's sent out in even if that now is part of a derived product The Apache license is a little different as I said, this is more. This is a permissive license that you can do what you like So once again perpetual and irrevocable But in this case it permits reproduction And the distribution of all of the original software and derivative works and you can charge for that You can do that on any terms you like you're not obliged to replicate the terms of the license under which you benefit There are conditions relating to attribution so that you can do what you like with it You're not allowed to claim that you created it And derivative works You can issue on any terms you like essentially the MIT license Has four paragraphs in it. It's all on one page and essentially it says you can do anything you like But the authors attribution rights are protected and that's broadly all it does very very short-form license so looking at Whichever model of open source you're operating the original creator of the of the software We've got to start looking I think now as I say, I'm massively attracted Philosophically to the idea that that software is out there. It's a public good, you know A force for good in the world as I say on my slide. I'm very attracted to that idea I'm very frustrated by part of Richard Storman's part that I didn't read Richard Storman's FSF manifesto where he says Surely software developers have a right to be rewarded for their work and he goes well, you don't have to be a software developer Which I just think is an absolutely ridiculous approach to these things, you know Everybody has the right to be rewarded for their work. We have somehow to Everyone has to eat everyone has to pay the bills. We somehow have to set up a structure for open source software where that is achievable I'll come on to talk about different ways that we might do that Let's say We are looking at the whole dichotomy is IP law is the very existence of licensing and copyright and intellectual property rights in general Is this a force for protectionism for me to protect the value of my intellectual work? Or is it a force for progress in the world for developing the state of the art quickly? There's an interesting question about who owns The IP in a large product that's been developed by many Developers in the nature of open source nature of most If you're employed by an organization to develop software for that organization Then anything you develop in your job becomes your employer's property typically it's in your employment contract normally on the other hand if you're developing something as part of a community of developers for a large open source project What happens who owns it where what is the nature of the intellectual property and the ownership of it? That might not seem massively important because obviously it's being licensed openly It doesn't really matter But who then enforces the license if the person who is entitled to enforce Intellectual property rights is the owner of the intellectual property rights if you've got a product That's got three hundred or three thousand different developers all who have different bits of ownership within it Enforcement's an absolute nightmare. They could be in all sorts of different countries They've said the GPL isn't jurisdiction specific so you could be trying to enforce across many countries It just is it's unsustainable. It's impossible so a lot of open source projects Include a developers agreement where the each developer in the developers community assigns the intellectual property in their work to the The broader whole so that it's all in one place in ownership terms So I want to talk specifically about the Linux foundation because this is one of the most sustainable models It was only founded in 2000. Obviously Linux has been being developed for quite some time before that and it has expanded its remit Now it doesn't just isn't just focused on the development of Linux itself It's trying to create the largest shared technology investment in history as its mission statement. It's not just developing Linux It's looking to be the main focus for any number of open source projects cloud projects internet of things projects is hosting various projects that are That have been initiated by other people. So it's really trying to broaden out its its reach But within the just looking at the development of Linux and the way that has gone There is a developers community people many of you may have even been involved in that people who are Developing code and contributing it back under the GPL to Linux they also have a Full-time, you know paid staff and they therefore have to fund that and so there are you can become a Companies typically can become financial members of the Linux foundation and there are there are various tiers of membership and To be a member then buys you benefits such as the ability to kind of define what the next step Or the next development steps should be for Linux. So the costs of it can be anything from Half a million US dollars a year down to five thousand US dollars a year Other sort of prices for the different tiers of membership, but if you think about a large organization paying for Windows licenses instead of Using Linux, you know, you're obviously talking about a massive saving that these companies these big organizations have a huge interest In making sure that Linux is up to date and carries on working The Linux foundation is set up as an Oregon State non-profit mutual benefit corporation I've looked in great detail at its various constitutional documentation. It has these various classes of membership It also has affiliates who are not financial members, but our corporates but who contribute in a non-financial way typically by seconding or deploying some of their stuff for some of their working time to Towards the Linux project I'm talking about open foam, which is a client of mine and as I said my my Initiation into the world of open source came late and came through corporate law not through intellectual property law And it came through this the sapphic open foam. They are The people who do they've developed a fluid flow modeling software Which is used a lot in the automotive sector, but in various other sectors too medically indeed And it's it was licensed on an open source model. It was under the GPL the company that developed it was Very happy for it to be open sources and they were owned by an American company The key developers in the company were doing a lot of the work of those for open source They were doing it as part of their day job. It was all very benign and then the ownership changed and the New owners were not happy for the developers to work on company time And they were not happy for that they were essentially looking for ways that they could take the software back fork the software and Make it into a commercial product rather than an open source product and the developers who had been involved in this from the start We're very unhappy with that so they came to me and asked if we could do something to get it onto a sustainable footing So we looked in a lot of detail at Linux that Geneva, Mozilla Apache various different models for Owning this sort of product Then realized as we looked around that there was absolutely nothing in the UK that I could not find I mean I did a huge amount of digging on this and looked at many many UK owned open source software products None of them were owned on anything approaching the the Linux model or anything like it Typically what we were seeing was that they were owned by a one shareholder one share company licensed under the GPL or another open source license But not owned in a way that would prevent or would to give some kind of long-term security And that might be okay If it's one person developing a small product for themselves, you know, which they've prepared to license until they decide not to anymore That that might be okay I'm not sure it is but it might be if what you've got is a huge developers community or a substantial developers community and people are donating their time and their creativity The idea that that the rug could be pulled from under them the idea that that could just be forked and turned into a commercial product by the person who owns The the underlying copyright. I think is seriously problematic in a developers community And this is where I'm at with when I'm talking about sustainable open source ownership This is the thing that I think is is really key so yeah There's nothing to problem the UK and say various issues with the One shareholder one share model uses community also If you're using a piece of software in your business the idea that that could just suddenly stop getting maintained stop getting Moved forward is obviously a huge issue. So if we're trying to get open source more fully Embedded in the corporate world then that's not that's not gonna work either So we looked at what we could do instead in the UK Looking at Linux in particular. We don't have a Structure in English company law anything like the the not-profit not-for-profit company corporation that they had in Oregon But we decided we would create something as close as we could out of the company law vehicles that we had we looked at community interest companies Which is a fairly new structure essentially designed for the ownership of village halls It didn't really it wasn't going to do it for us. So we set up a company limited by guarantee There's nothing to stop a company limited by guarantee from distributing its profits other than its own constitutional rules But it's typically used in not-for-profit type Organizations, it's also very difficult to just sell a company limited by guarantee It's the transfer of ownership is more complicated and more involved We designed the constitutional documents extremely carefully We had a set of articles which dealt with the way in which the thing would be owned in the way in which corporate governance would operate Setting out the the board technical committee We also had a set of rules which could be changed by the board which a little bit Sort of lighter touch which established the qualifications that members have to Have to have and what kind of fees are going to be paid those sorts of things can be changed we set it up with a Model of financial membership so that any Organizations that were using the software could elect to Contribute financially and as I said they have an interest in that they want to see the the software maintained and developed So it's not on the one hand procured procurement departments will look at it and say well Why are we paying for something we can have for free? But there is a an argument that can be made and it can be justified We then had contributing members who are people typically individuals who are actually developing the software and contributing in their intellectual assets And it was licensed under the under the DPL with a contribution agreement, which as I said as I mentioned before It's very typical for the contributors to to license the Assign the benefit of their intellectual property rights, and that was done And the DPL to ensure that we had the most Restrictive license so that any developed products could not be forked I'm having done this just as far as I know it's the only one still in the UK That's on this sort of basis But I do think that it represents a possibility for a new paradigm for a new way of thinking about open source So that stops being something that People who have been in the development community are essentially Contributing to as a kind of charity project it starts to actually be something that that is sustainable and potentially remunerated So solving the economic conundrum that how do we reward developers for the work that they're doing in an open source environment Where nobody is paying the membership model seems to offer perhaps the best approach for that and hopefully Creating a genuinely open structure. I don't genuinely open ownership and sustainable for open source ownership in the future Um so That's me if anyone wants to talk about this stuff We've been told that we can we can take questions in these talks if there's a little bit of time I think there's a few minutes we can I can take a few questions, but I'll be around the festival until tomorrow Yeah Wait wait for the mic Hi, thanks for the talk really interesting on the membership side But about to back with the open phone model when you mentioned members Were you talking about members in the companies act kind of thing for voting rights and stuff like that or just general associate members who pay and Don't have anything else. They were Well the thing about a guarantee company is that instead of being a share a member We typically think of members and shareholders as synonymous But a guarantee company doesn't have shares so it doesn't have shareholders a guarantee a member of a guarantee company is Agrees to guarantee the liabilities of the company up to a certain threshold what we we didn't Create that kind of membership in in the case of open firm We that they they were members in a contractual sense so that we had a membership agreement and they just they have certain rights They have certain committee attendance rights, so they can dictate or Influence the the future direction that the software takes One last question and then I'm sorry, but you are going to date need to take it out So what are the you know from the point of view of setting up a Legal structure like this in a community that may not presently have any kind of funding How do you how did the open phone? Foundation Overcome that okay. Well in the case of open firms. I say it's it's it's fluid flow modeling that the the software doesn't it does it in a variety of different Context they say medically it's used they can actually model how injecting a liquid into a brain tumor will how that liquid will flow through brain cells but equally it models how air flows around a New a particular shape of car, so it's very the large number of automotive sector customers as well as users and those Users were invited to to join and to become members and by Because their membership Entitles them to influence the direction that the software development takes And because the alternative is to buy a commercial license in for another product, which would be considerably more expensive a Number of their users were willing to participate in that way But of course you do you know Linux is is a similar model people join Corporations join in order to influence the direction and in order to know that the the product will continue to be developed and maintained and sustained But you do have to have a sufficient user base. I think to Pursuade anybody that this is something that it's worth investing in So we are out of time, but yeah, if you have more questions, please go come find the speaker after Thank you