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Intellectual Property and Open Source

Van Lindberg
Published by O'Reilly Media
ISBN: 978-0-596-51796-0
390 pages
£ 21.99
Published: 29th July 2008
reviewed by Roger Whittaker
   in the September 2008 issue (pdf), (html)
bookcover  

Almost my first thought on seeing this book was that out of the five words in the title, Richard Stallman would approve only the third and shortest one: the word “and”. It is quite clear from the preface, however, that the author is fully aware of the awkward issues that surround terminology in this area: his “note about terminology” refers to the FSF's “phrases that are worth avoiding” and also addresses directly the question of “free software” versus “open source”. He explains that part of his choice of wording by saying

Where applicable, I will use the correct term to describe how they are both socially and legally different. Nevertheless, because open source software is a strict superset of free software, I will generally use the more inclusive term when discussing legal elements common to both.

Stallman's primary objection to the use of the term “Intellectual Property” is that it is often used in such a way as to blur and confuse the differences between the very different concepts of copyright, trademarks, patents and trade secrets. Van Lindberg can certainly plead not guilty to that one: the book defines its terms extremely clearly, and discusses the various concepts separately and in depth, while also describing the way they interact.

In the first chapter he defines different types of good: rivalrous and non-rivalrous goods, excludable and no-excludable goods, private goods, public goods, common-pool goods and club goods, and goes on to examine the legal concept of property. I found these short sections very interesting and enlightening, because they made me realise that I had never really analysed the underlying concepts in any depth.

The same kind of clarity is applied to all the concepts described in the book. The author is clearly a person with a close knowledge both of the law and of the world of software. He uses interesting and sometimes surprising analogies to illustrate legal concepts and practices. For example, he observes that patent applications use indentation to clarify structure in a manner similar to coding conventions. Elsewhere he uses a Simpsons story line to help explain the concept of trade secrets, draws a parallel between credit unions and open source, compares Red Hat's patent policy and India's nuclear strategy, and sees a parallel between contract law and a distributed source code management system.

Many of the most controversial and notorious cases of recent years appear as examples: for instance a discussion of the “GIF patent”. In the section on trademarks, there is a clear description of why AOL really had no choice but to pursue what was then called GAIM over infringement of the trademark it held on the name “AIM”.

The book does not attempt to cover the legal issues internationally: the descriptions of the legal situation are all concerned with US law. This means that the sections on patents and copyright both describe different laws from those which apply in the UK and Europe. However, the world of software is an international one, and the one jurisdiction that matters in that world is that of the United States (which has been assiduously attempting to force its intellectual property laws on the rest of the world for some time now). As it is in the US that many of the most important and significant battles for free and open source software are being played out, understanding those battles is largely a matter of understanding the American legal position. So this book is useful and appropriate outside the US, but readers in this country will want to compare with some other source of information about the situation here. The copyright sections were the area where I felt the need for a British parallel text most strongly.

As would be expected there is considerable discussion of the various free and open source licences, and in particular the current state of the law as it applies to the GPL. Appendices include the text of the more important licences, and there are tables showing the interactions and compatibility between them.

Despite my slight reservation about the “US-only” descriptions of the relevant laws, this is a valuable book which should be on the shelf of anyone who is interested in the issues it covers.

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