The Open Source Alternative: Understanding Risks and Leveraging Opportunities
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More About This Title The Open Source Alternative: Understanding Risks and Leveraging Opportunities


This book is a user manual for understanding and deployment of open source software licensing in business. Written for lawyers and businesspeople alike, it explains and analyzes open source licensing issues, and gives practical suggestions on how to deal with open source licensing in a business context. Including useful forms, information, and both technical and licensing background, this book will help you avoid legal pitfalls and edcuate your organization about the risks of open source.


Heather J. Meeker is a shareholder at Greenberg Traurig, LLP, one of the largest law firms in the United States. Heather has provided open source counseling to clients ranging from technology startups using open source in product development, to public technology companies conducting open source code releases, to venture capitalists assessing new business models in the software industry. She also serves as an adjunct professor at the U.C. Berkeley School of Law, is a member of the American Law Institute, and in 2005, was selected by the Daily Journal as one of the top thirty intellectual property lawyers in California.



Part One: Leveraging Opportunities.

Chapter 1: Introduction: How UNIX Gave Birth to Linux, and a New Software Paradigm.

In the Beginning Was the Word, and the Word Was UNIX.

Along Comes Linux.

Now, What Is Open Source?

And This Is Just the Beginning.

Chapter 2: Free Software and Open Source.

Viruses and Freedoms.

Philosophy of Free Software.

Open Source Initiative.

Mozilla Foundation.

Linus Torvalds.

Defi nitions: Free Software and Open Source.

What’s in a Name? The Viral and the Nonviral.

Open Source Development Model.

Chapter 3: Common Open Source Licenses and Their Structure.

Direct Licensing.


GPL  Exception (or Special Exception).

GPL  FLOSS Exception.


Corporate Hereditary Software Licenses.

Other Hereditary Software Licenses.

Permissive Licenses.

Apache 1.0.

Apache 1.1.

Apache 2.0.

Artistic License.

Miscellaneous Licenses.

Non-Software Licenses.

Chapter 4: Due Diligence, License Proliferation, and Compatibility.

What Is the Problem with Combining Software?

What Is Due Diligence?

License Conditions and Diligence Problems.

License Compatibility.

Choices in an Incompatible World.

An Embarrassment of Riches?


Chapter 5: Audits and Compliance Initiatives.

Provenance and Objective Checking.

Applying Policy and Legal Review.

Some Nuts and Bolts.

Chapter 6: Notice Requirements.

Chapter 7: Patents and Open Source.

Patent Debate.

Patent Portfolio Management.

Chapter 8: Trademarks and Open Source.

Trademark Law and Open Source Licensing.

Trademarks in the Open Source World.

AT&T UNIX Battle.

Chapter 9: Open Source and Open Standards.

Chapter 10: Developing a Corporate Open Source Policy.

Appendix 10A: Open Source Corporate Policy.

Chapter 11: Open Source Code Releases.

Choosing a License.

Effect on Patent Portfolio.

Effect on Trademarks.

Open Source Business Models.

Dual Licensing.

“Ur-Licensor” and Open Source Decision Models.

Contribution Agreements.

Reissuing Code.

Corporate Organization.

Appendix 11A Open Source Trademark Policy.

Part Two: Understanding Risks.

Chapter 12: Technical Background: Operating System Kernels, User Space, and Elements of Programming.

What Is the difference Between an Application and an Operating System?

What Is an Operating System Kernel?

What Is an Application?

Dynamic and Static Linking, and Inline Code.

Header Files.

Monoliths and Loadable Kernel Modules.

Chapter 13: Enforcement of Open Source Licenses.

Past Enforcement.

Enforcement Obstacles.

Lack of Track Record: GPL Has Never Been Tested in Court.

Waiver/Estoppel: Occasional and Selective Enforcement of GPL Means It Is Unenforceable.

Formation: GPL Is Not Validly Accepted by Licensees.

GPL Constitutes Copyright Misuse.

Joint Work Arguments.

Standing and Joinder Arguments.

Chapter 14: The Border Dispute of GPL2.

Defining the Border Dispute.

What the GPL Says.

Rules of Contract Construction.

Applying the Four Corners Rule to GPL2.

Applying the Rules of Contract Construction of GPL2.

Trade Usage and Other Extrinsic Evidence.

Derivative Works Question.

The Facts.

Legal Rules.

Analyzing the Case of Two Works.

Is the Result One or Two Works?

Policy Arguments.

Non-U.S. Law Interpretations.

Approach of Legal Realism.

Outside the Four Corners.

Loadable Kernel Modules.

The Hardest Cases.

LGPL Compliance.

Chapter 15: License or Contract?

Contract Formation.

Arguments Supporting Formation.

Implications of Absence of Contract Formation.

Incentives for Formation Arguments.

Chapter 16: Defi ning Distribution.

Chapter 17: Open Source in Mergers and Acquisitions and Other Transactions.

Open Source in Licensing and Commercial Transactions.

Development Agreements.

Chapter 18: GPL Version 3.0.

What Is the Effect of the Release of GPL3?

Adoption of GPL3.

Politics and Context.

“Derivative Works” Problem.

“Propagation” and “Conveying”.


Digital Millennium Copyright Act Provisions.

“Java Problem”.

Disabling and Obfuscation.

ASP Problem.

License Compatibility.

Chapter 19: LGPL Version 3.0.

New Approach for LGPL.

Adoption of LGPL3.

Politics and Context.

Defi nitions.



Appendix A: Open Source Development Agreement.




"In her book, Heather Meeker does a good job describing the "border dispute" of the Copyleft provision in the GPL" (ccsblog, March 16th, 2009)

"So I would say, this is the book to read, for a good account of the legal aspects surrounding open source." (, 7/6/08)