This article covers several aspects: owning the copyrights you develop outside of your employed time and the more thorny aspect of owning the copyrights in open source projects you work on for your employer. It will also take a look at the middle ground of being a contract entity doing paid work on open source. This article follows the historical sweep of my journey through this field and so some aspects may be outdated and all are within the bounds of the US legal system and it’s most certainly not complete, just a description of what I did and what I learned.

Why Should you Own your Own Source code?

In the early days of open source, everything was a hobby project and everyone owned their own contributions. Owning your own contribution was a sort of mark of franchise in the project. Of course, there were some projects, notably the FSF ones, which didn’t believe in distributed ownership and insisted you contribute ownership of your copyrights to them so they could look after the project for you. Obviously, since I’m a Linux Kernel developer and with the Linux Kernel being a huge distributed copyright project, it’s easy to see which side of the argument I fall.

The main rights you give up if you don’t own the code you create are the right to re-licence and the right to enforce. It probably hadn’t occurred to you that if you actually find a licence violation in a project you contribute to for your employer, you’ll have no standing to demand that the problem get addressed. In fact, any enforcement on the code would have to be done by the proper owner: your employer. Plus your employer can control the ultimate destination of that ownership, including selling your code to a copyright troll if they so wished … while you may trust your employer now you work for them, do you trust them to do the right thing for all time, especially since they may be bought out by EvilCorp on down the road?

The relicensing problem can also be thorny: as a strong open source contributor you’ve likely been on the receiving end of requests to relicense (“I really like the code in your project X and would like to incorporate it in my open source project Y, but there’s a licence compatibility problem, would you dual license it?”) and thought nothing about saying “yes”. However, if your employer owns the code, you were likely lying when you said “yes” because you have no relicensing rights and you must ask your employer for permission to do the relicensing.

All the above points up the dangers in the current ecosystem. Project contributors often behave like they own the code but if they don’t they can be leaving a legal minefield in their wakes. The way to fix this is to own your own code … or at least understand the limitations of your rights if you don’t.

Open Source in Your Own Time

It’s a mistake to think that just because you work on something in your own time it isn’t actually owned by your employer. Historically, at least in the US, employment agreements contain incredibly broad provisions for invention ownership which basically try to claim anything you invent at any hour of the day or night that might be even vaguely related to your employment. Not unnaturally this caused huge volumes of litigation around startups where former employees successfully develop innovations their prior employer declined to pursue (at least until it started making money). This has lead to a slew of state based legal safe harbour protections for employee inventions. Most of them, like the Illinois Statute I first used, have similar wording

A provision in an employment agreement which provides that an employee shall assign or offer to assign any of the employee’s rights in an invention to the employer does not apply to an invention for which no equipment, supplies, facilities, or trade secret information of the employer was used and which was developed entirely on the employee’s own time … is … void and unenforceable.

765 ILCS 1060/2

In fact most states now require the wording to appear in the employment contract, so you likely don’t have to look up the statute to figure out what to do. The biggest requirements are that it be on your own time and you not be using any employer equipment, so the most important thing is to make sure you have your own laptop or computer. If you follow the requirements to the letter, you should be safe enough in owning your own time open source code. However, if you really want a guarantee you need to take extra precautions.

Own Time Open Source Carve Outs in Employment agreements

When you join a company, one of the things you’ll sign is a prior invention disclosure form, usually as an appendix to the invention assignment agreement as part of your employment contract. Here’s an example one from the SEC database (ironically for a Chinese subsidiary). Look particularly at section 2(a) “Inventions Retained and Licensed”. It’s basically pure CYA for the company, and most people leave Exhibit A blank, but you shouldn’t do that. What you should do is list all your current and future (by doing sweeping guesswork) own open source projects. The most useful clause in 2(a) says “I agree that I will not incorporate any Prior Inventions into any products …” so you and your employer have now agreed that all the listed projects are outside the scope of your employment agreement.

As far as I can tell, no-one really looks at Exhibit A at all, so I’ve been really general and put things like “The Linux Kernel” and “Open Source UEFI software” “Open Source cryptography such as gnupg, openssl and gnutls” and never been challenged on it.

One legitimate question, which will probably happen if your carve outs are very broad, is what happens if your employer specifically asks you to work on a project you’ve declared in Exhibit A? Ideally you could use this as an opportunity to negotiate an addendum to your contract covering your ownership of open source. However, if you don’t want to rock the boat, you can simply do nothing and rely on the fact that the agreement has something to say about this. The sample section 2(a) above goes on to give your employer a non-exclusive licence, which you could take as agreement to your continued ownership of the copyrights in the code, even through your employer is now instructing you (and paying you) to work on it. However, the say nothing approach has never been tested in court and may be vulnerable to challenge, so a safer course is to send your manager an email pointing out the issue and proposing to follow the licence in the employment contract. If they do nothing, thinking the matter settled, as most managers do, then you have legal cover for continuing to own your own copyrights. You can make it as vague as you like, so using the above sample agreement, something like “You’ve asked me to work on Project X which was listed in Exhibit A of my employment agreement. To move forward, I’m happy to licence all future works on this project to you under the terms of section 2(a)”. It looks innocuous, but it’s actually a statement that your company doesn’t get copyright ownership because of the actual wording in section 2(a) says the company gets a non-exclusive licence if you incorporate any works listed in Exhibit A. Remember to save the email somewhere safe (and any reply which is additional proof it was seen) just in case.

Owning Open Source Produced on Company Time

The first thing to note is that if your employer pays for you to work on open source, absent any side agreement, the code that you produce will be owned by your employer. This isn’t some US specific thing, this is a general principle of employment the world over (they pay you, so they own it). So even if you work in Europe, your employer will still own your open source copyrights if they pay you to work on the project, moral rights arguments notwithstanding. The only way to change this is to get some sort of explicit or implicit (if you want to go the carve out route above) agreement about the ownership.

Although I’ve negotiated both joint and exclusive ownership of open source via employment agreements, the actual agreements are still the property of the relevant corporations and thus, unfortunately, while I can describe some of the elements, I can’t publish the text (employment agreements are the crown jewels the HR dragons guard).

How to Negotiate

Most employers (or at least their lawyers) will refuse point blank to change the wording of employment agreements. However, what you want can be a side agreement and usually doesn’t require rewording the employment agreement at all. All you need is the understanding that the side agreement will get executed. One big problem can be that most negotiations over employment agreements occur with people from HR, which is a department with the least understanding of open source, so you don’t want to be negotiating the side agreement with them, you want to talk to the person that is hiring you. You also need to present your request as reasonable, so find out if anyone inside your prospective new company has done something similar. Often they have, and they’ll likely be someone in open source you’ve at least heard of so you can approach them and ask for details. “But you gave a copyright ownership side agreement to X” is often a great way to advance your cause. Don’t be afraid to ask and argue politely but firmly … hiring talented developers is very competitive nowadays so they have (or at least the manager who wants to hire you has) a vested interest in keeping you happy.

Consider Joint Ownership

Joint ownership is a specific legal term meaning the rights in a copyright are shared by the joint owners. Effectively this sharing means that either party may enforce without consulting the other and either party may license the work without consulting the other (but here they must share any profits from the licence equally among joint owners).

Joint ownership is often a good solution because it gives you the right to relicence and the right to enforce, while also giving your employer a share in what they paid to produce. Joint ownership is often far easier to sell to corporations than one or other of you having exclusive ownership because it gives them all the rights they would have had anyway. The only slight concern you may have down the road is it does give them the right to relicence or sell on their ownership, say to an open core business or to an enforcement troll. However, the good news is that as joint owner you now have a right to a half share of any profit they (and the new owner) make out of such a rights transfer, which can potentially act as a deterrent to the transaction if you remind them of this requirement.

Open Source as a Contractor

In some ways this is the best relationship. There are no work for hire assumptions about companies you contract for owning your free time, so doing other open source projects is easy. However, a contractor is bound by whatever contract you sign, so you need someone with legal training to help you make sure it is actually equitable. You can’t get around this legal requirement: the protections that exist for employees don’t exist for contractors, so if you sign a contract saying in exchange for a certain sum company X owns the entirety of your output, you will be bound by it. So remember: read the contract and negotiate the terms.

Copyright Ownership as a Contractor

Surprisingly, in a relationship where you’re contracted to get something upstream, it’s often in the client’s best interest to have the contractor own the copyrights in Open Source. It means the contractor is responsible for all the nitty gritty of pushing patches and dealing with contribution agreements and the client simply gets the end product: the thing they wanted upstream. I’ve found this a surprisingly easy sell to most legal departments. Even if the client does want some sort of ownership of the code, you can offer joint ownership as the easy route to you taking on all the hassle and them getting the benefits of ownership.

Trade Secrets

As a contractor, you’ll likely be forced to sign an NDA never to reveal client secrets. This is pretty usual, but the pitfall in open source, particularly if you’re doing a driver for a device whose programming manual is under NDA, is that you are going to be revealing them contrary to the NDA. You need this handled in an equitable fashion in the contract to avoid unpleasant problems long after the job is done. The simplest phrase you need is something like “Client understands that open source is developed in public and authorizes that all information necessary to producing X under this contract be disclosed to the public”.

Patents

Patents can be a huge minefield with contract open source, because as a contractor who owns the copyrights and negotiates the contribution agreements, you have no authority to bind your client’s patents. You really don’t want to find yourself being used as a conduit for a patent ambush on open source (where a client contracts with you to put code into a project which reads on a patent they hold and then turns around and patent trolls the ecosystem) so you need contract language binding the client patents at least in the work you’re doing for them. Something simple like “Client grants a perpetual and irrevocable licence, consistent with the terms of the open source licence for X, to all contributions made by contractor to X that read on patents client holds now or may in future acquire”. This latter is pretty narrow, so you could start out by trying to get a patent licence for the entirety of project X and negotiate down from there.

Conclusions

Owning your own copyrights in open source is possible provided you’re careful. The strategies outlined above are based on my own experiences (all in the US) as a contract employee from 1995-2008 there after as a regular employee but are not the only ones you could pursue, so ask around to see what others have done as well. The main problem with all the strategies above is that they work well when you’re negotiating your employment. If you’re already working at some corporation they’re unlikely to be helpful to you unless you really have a simple own time open source project. Oh, and just remember that while the snippets I quoted above for the contract case may actually have been in contracts I signed, this isn’t legal advice and you should have a lawyer advise you how best to incorporate the various points raised.

https://blog.hansenpartnership.com/owning-your-own-copyrights-in-open-source/

RT @gnupg@twitter.com

We released another developer preview for 2.3.0 today (lists.gnupg.org/pipermail/gnup). One of the new features is to use a to bind your keys to a laptop; see
gnupg.org/blog/20210315-using-

For years I’ve been hoping that the Trusted Computing Group (TCG) based IBM and Intel TSS (TCG Software Stack) would simply integrate with one another into a single package. The rationale is pretty simple: the Intel TSS is already quite a large collection of libraries so adding one more (the IBM TSS has a single library) wouldn’t be too much of a burden. Both TSSs are based on TCG specifications, except that the IBM TSS is based on the TPM 2.0 Library Specification and the Intel TSS is based on the TPM Software Stack (also, not at all confusingly, abbreviated TSS). There’s actually very little overlap between these specifications so co-existence seems very reasonable. Before we get into the stories of these two stacks and what they do, I should confess my biases: while I’ve worked with the TCG over the years, I’ve always harboured the view that the complete lack of adoption of TPM 2.0’s predecessor (TPM 1.2) was because of the hugely complicated nature of the TCG mandated software stack which was implemented in Linux by trousers. It is my firm belief that the complexity of the API lead to the lack of uptake, even though I made several efforts over the years to make use of it.

My primary interest in the TPM has been as a secure laptop keystore (since I already paid for a TPM, I didn’t see the need to fork out again for one of the new security dongles; plus the TPM is infinitely scalable in the number of keys, unlike most dongles). The key to making the TPM usable in this form is integration with existing Cryptographic systems (via plugins if they do them). Since openssl has an engine plugin, I’ve already produced an openssl TPM2 engine, patches for gnupg and engine integration patches for openvpn (upstream in 2.5) and openssh as well as a PKC11 exporter (to make file based engine keys exportable as PKCS11 tokens). Note a lot of the patches aren’t strictly TPM patches, they’re actually making openssl engines work in places they previously didn’t. However, the one thing most of the patches that actually touch the TPM have in common is that they have to pick one or other of the available TSSs to operate with. Before describing the TSS agnostic solution, lets look at why these two TSSs exist and what the difference is between them and why you might choose one over the other.

Schizophrenia at the TCG

As I said in the introduction, both TSSs are based on TCG specifications. These standards aren’t ambiguous: they lay out in excruciating detail what the header files are called and what the prototypes and structures have to be. Both TSS implementations are the way they are because they wouldn’t be following the standards if they deviated even slightly. The problem is the standards don’t agree with each other in meaningful ways. For instance the TPM Library standards define every structure in terms of the fundamental unit of TPM data: the TPM2B structure, which defines a 16 bit big endian length followed by a data unit of that length. The TPM Library standards (in Part 4 section 9.10.6) lay out that every TPM2B_X structure shall be a union of a ‘b’ element which is a TPM2B and a ‘t’ element which is the actual structure. However the TPM Software Stack specification eliminates the plain TPM2B so every TPM2B_X structure in the latter specification are not unions, they are simply the ‘t’ form of the structure. This means that although TPM2B_X structures in each specification are byte for byte the same, they are definitionally different when written as C code and can’t be assigned to each other … oops. The TPM Library standard lays out additional structures for an elaborate calling convention for the TPM2_Command interfaces which are completely different from the ESYS_Command interfaces in the TPM Software Stack.

The reason it’s all done this way? well the specifications were built by completely different committees for what the committees saw as separate use cases, so they didn’t see a need to reconcile the differences. As long as the definitions were byte for byte compatible, everything would work out correctly on the wire. The problem was the TPM Library specification was released nearly a decade ahead of the TPM Software Stack specification, so the first TSS created had to follow the former because the latter didn’t exist.

Sessions, HMAC and Encryption

One of the perennial problems of a TPM is that integrity and security of the information going over the wire is the responsibility of the user. However, the encryption and integrity computations involved, particularly the key derivations, are incredibly involved (even though well documented in the TPM Library specification, so naturally everyone would like the TSS to do this. The problem the TPM Secure Stack had is that all the way up to its ESAPI specification, the security and integrity computations were still the responsibility of the user, so it didn’t begin to be useful until ESAPI was finalized a couple of years ago.

The Resource Manager Problem

TPM 2.0 was designed to be far leaner in terms of resources than TPM 1.2, which meant there was a very small limit to the number of sessions and volatile objects it could contain at any one time. This necessitated the use of a “resource manager” to control access otherwise applications would get unexpected out of resource errors. The Intel TSS has its own resource manager. However, the Linux Kernel itself incorporated a resource manager in the TPM device in 4.12 and the IBM TSS avoids the need for its own resource manager by using this, and will, therefore not work correctly on earlier kernel versions.

Inside the IBM TSS

Even though the IBM TSS is based on a solid and easily comprehensible and detailed specification, that specification itself suffers from a couple of defects. The first being it assumes you’re submitting to a physical TPM, so the specification has no functional (library based) submission API for TPM commands, so the IBM TSS had to invent API it called TSS_Execute() which is a way of sending TPM commands directly to the physical TPM over the kernel’s device interfaces. Secondly, the standard contains no routing interfaces (telling it what destination the TPM is on: should it open the /dev/tpmrm0 device or send the commands to the TPM over an IP socket), so this is controlled in the IBM TSS by several environment variables (TPM_INTERFACE_TYPE, which can be either “dev” or “socsim” for either a physical device or a network socket. The endpoints being controlled by TPM_DEVICE for “dev” type, which specifies which device to use, defaulting to /dev/tpmrm0 or TPM_SERVER_NAME and TPM_PLAFORM_PORT for “socsim”).

The invented TSS_Execute() API also does all the encryption and HMAC parts necessary for secure and integrity verified communication with the TPM, so it acts as a fully functional TSS. The main drawback of the IBM TSS is that it stores essential information about the sessions and handles in files which will, by default, be dropped into the local directory. Most users of the IBM TSS have to set TPM_DATA_DIR to be a specially created directory under /tmp to avoid leaving messy artifacts in users home directories.

Inside the Intel TSS

The TPM Software Stack consists of a large number of different specifications, including the resource manager (which is now unnecessary for kernels above 4.12) the TCTI which specifies the routing information for the TPM. It turns out that even in the Intel TSS, environment variables are the most convenient form to specify this information but, unfortunately, the name of the environment variable has been left up to each use case instead of being standardised in the library meaning you’ll have to consult the man page to figure out what it is. The next set of standards: SAPI and ESAPI define functional interfaces to the TPM with one submission API for each command and additionally a corresponding ..._Async()/..._Finish() pair for asynchronous programming. The only real difference between SAPI and ESAPI is that the latter also does the necessary session cryptography for security and integrity, so it’s pretty much the only usable interface for TPM commands. Unfortunately, the ESAPI interface, as constructed by the TCG, has several cases of premature abstraction the worst of which is a separate abstraction for the TPM handle interface which lives only as long as the lifetime of the connection object and which necessitates multiple conversions to and from internal handle objects if your session or object lives longer than the connection (which can be the case).

There is one final wrinkle is that in the handle abstraction, ESAPI has no API for retrieving the real TPM handle. I’d always wondered why the Intel TSS tpm2 tools always saved the objects they create to a context instead of simply returning the handle to them, but this is the reason: without the ability to transform an internal handle to an external one, you either save the context or let the object die when the connection terminates. This problem is one forced by the ESAPI standard, but eventually it became enough of a problem that the Intel TSS introduced its own additional API to remedy.

The other major difference between the Intel and IBM TSSs is memory handling for returned results: The IBM TSS requires pre-allocated structures whereas the Intel TSS insists on allocation on return. It looks like the Intel TSS should be able to tell if the return pointer is allocated or NULL, but right at the moment it always allocates and overwrites the pointer.

Constructing a unifying Interface for both the IBM and Intel TSSs

In essence the process for converting something that runs with the IBM TSS to being TSS Agnostic is a fairly simple three step process which I’ll illustrate by reference to the openssl tpm2 engine which has already been converted:

Hide the structural differences by inserting a set of macros: VAL() and VAL_2B() which hide most of the TCG induced structure schizophrenia.
Convert the API call structure to be functional instead of via a single TSS_Execute() call. This is quite involved so I did it by adding tpm2_Function() wrappers for each specific invocation.
Introduce the correct premature abstraction for internal and external representation of handles. This was the nastiest step for me because handles are stored in long lived engine structures, and the internal and external representations are both forms of uint32_t even in ESAPI (meaning the compiler won’t complain if you assign one to the other) so it was incredibly painful to get this conversion correct.

Once this is done, the remaining step was to introduce a header which did the impedance matching between the Intel and IBM TSSs and an autoconf macro to detect which TSS is installed and the resulting configure and compile just works. The resulting code will now build and run under either TSS. I should point out that the Intel TSS is missing several helper routines, but these are added into the intel-tss.h header file by copying the from the original IBM TSS. Finally an autoconf check is added to look for the missing internal to external handle transform, and everything is ready to go.

It does seem like it would be easier to port an existing Intel TSS application to the IBM TSS, since points 2 and 3 will already be sorted out. However, all the major TSS library using applications are IBM TSS based, so I haven’t actually been able to verify this.

Remaining Problems and Anomalies

The biggest remaining issue was the test scripts. The openssl TPM2 engine has 27 of them all told, all designed to check the engine function by invoking it via openssl when connected to a software TPM. These scripts are all highly dependent on the IBM TSS command line binaries and the Intel TSS versions seem to be very unstable in terms of argument structure making it pretty much impossible to convert, so I elected finally to have the tests run only if the IBM TSS CLI is installed. The next problem was that the Intel TSS version of the engine didn’t actually pass all the tests. However this was quickly narrowed down to a bug in the Intel TSS when using bound sessions on the NULL seed.

The sole remaining issue is a curious performance anomaly. When running time make check with the IBM TSS, the result is:

real 0m6.100s user 0m2.827s sys 0m0.822s

and the same command with the Intel TSS (running one fewer test and skipping the NULL seed) is:

real 0m10.948s user 0m6.822s sys 0m0.859s

Showing that the Intel TSS is nearly twice as slow as the IBM one with most of the time differential being user time. Since the tests use a software TPM which can perform the cryptographic operations at the speed of the main CPU, this is showing some type of issue with the command transmission system of the Intel TSS, likely having to do with the fact that most applications use synchronous TPM operations (the engine certainly does) but in the Intel TSS, the synchronous operations are implemented as the corresponding asynchronous pair. Regardless of the root cause, this is unlikely to be a problem with real world TPM crypto where the time taken for any operation will be dominated by the slowness of the physical TPM.

Conclusion

The TSS agnostic scheme adopted by the openssl TPM2 engine should be easily adaptable for all the other non-engine TPM code bases, and thus should pave the way for users not having to choose between applications which only support the Intel or IBM TSSs and can choose to install the best supported one on their distribution. The next steps are to investigate adapting this infrastructure to the existing gnupg patches (done and upstream) and also see if it can be used to solve the gnutls conundrum over supporting TPM based keys.

https://blog.hansenpartnership.com/papering-over-our-tpm-2-0-tss-divisions/

First, for all the lawyers who are eager to see the Settlement Agreement, here it is. The reason I can do this is that I’ve released software under an OSI approved licence, so I’m covered by the Releases and thus entitled to a copy of the agreement under section 10, but I’m not a party to any of the Covenants so I’m not forbidden from disclosing it.

Analysis of the attack

The Rothschild Modus Operandi is to obtain a fairly bogus patent (in this case, patent 9,936,086), form a limited liability corporation (LLC) that only holds the one patent and then sue a load of companies with vaguely related businesses for infringement. A key element of the attack is to offer a settlement licensing the patent for a sum less than it would cost even to mount an initial defence (usually around US$50k), which is how the Troll makes money: since the cost to file is fairly low, as long as there’s no court appearance, the amount gained is close to US$50k if the target accepts the settlement offer and, since most targets know how much any defence of the patent would cost, they do.

One of the problems for the target is that once the patent is issued by the USPTO, the court must presume it is valid, so any defence that impugns the validity of the patent can’t be decided at summary judgment. In the GNOME case, the sued project, shotwell, predated the filing of the patent by several years, so it should be obvious that even if shotwell did infringe the patent, it would have been prior art which should have prevented the issuing of the patent in the first place. Unfortunately such an obvious problem can’t be used to get the case tossed on summary judgement because it impugns the validity of the patent. Put simply, once the USPTO issues a patent it’s pretty much impossible to defend against accusations of infringement without an expensive trial which makes the settlement for small sums look very tempting.

If the target puts up any sort of fight, Rothschild, knowing the lack of merits to the case, will usually reduce the amount offered for settlement or, in extreme cases, simply drop the lawsuit. The last line of defence is the LLC. If the target finds some way to win damages (as ADS did in 2017) , the only thing on the hook is the LLC with the limited liability shielding Rothschild personally.

How it Played out Against GNOME

This description is somewhat brief, for a more in-depth description see the Medium article by Amanda Brock and Matt Berkowitz.

Rothschild performed the initial attack under the LLC RPI (Rothschild Patent Imaging). GNOME was fortunate enough to receive an offer of Pro Bono representation from Shearman and Sterling and immediately launched a defence fund (expecting that the cost of at least getting into court would be around US$200k, even with pro bono representation). One of its first actions, besides defending the claim was to launch a counterclaim against RPI alleging exceptional practices in bringing the claim. This serves two purposes: firstly, RPI can’t now simply decide to drop the lawsuit, because the counterclaim survives and secondly, by alleging potential misconduct it seeks to pierce the LLC liability shield. GNOME also decided to try to obtain as much as it could for the whole of open source in the settlement.

As it became clear to Rothschild that GNOME wouldn’t just pay up and they would create a potential liability problem in court, the offers of settlement came thick and fast culminating in an offer of a free licence and each side would pay their own costs. However GNOME persisted with the counter claim and insisted they could settle for nothing less than the elimination of the Rothschild patent threat from all of open source. The ultimate agreement reached, as you can read, does just that: gives a perpetual covenant not to sue any project under an OSI approved open source licence for any patent naming Leigh Rothschild as the inventor (i.e. the settlement terms go far beyond the initial patent claim and effectively free all of open source from any future litigation by Rothschild).

Analysis of the Agreement

Although the agreement achieves its aim, to rid all of Open Source of the Rothschild menace, it also contains several clauses which are suboptimal, but which had to be included to get a speedy resolution. In particular, Clause 10 forbids the GNOME foundation or its affiliates from publishing the agreement, which has caused much angst in open source circles about how watertight the agreement actually was. Secondly Clause 11 prohibits GNOME or its affiliates from pursuing any further invalidity challenges to any Rothschild patents leaving Rothschild free to pursue any non open source targets.

Fortunately the effect of clause 10 is now mitigated by me publishing the agreement and the effect of clause 11 by the fact that the Open Invention Network is now pursuing IPR invalidity actions against the Rothschild patents.

Lessons for the Future

The big lesson is that Troll based attacks are a growing threat to the Open Source movement. Even though the Rothschild source may have been neutralized, others may be tempted to follow his MO, so all open source projects have to be prepared for a troll attack.

The first lesson should necessarily be that if you’re in receipt of a Troll attack, tell everyone. As an open source organization you’re not going to be able to settle and you won’t get either pro bono representation or the funds to fight the action unless people know about it.

The second lesson is that the community will rally, especially with financial aid, if you put out a call for help (and remember, you may be looking at legal bills in the six figure range).

The third lesson is always file a counter claim to give you significant leverage over the Troll in settlement negotiations.

And the fourth lesson is always refuse to settle for nothing less than neutralization of the threat to the entirety of open source.

Conclusion

While the lessons above should work if another Rothschild like Troll comes along, it’s by no means guaranteed and the fact that Open Source project don’t have the funding to defend themselves (even if they could raise it from the community) makes them look vulnerable. One thing the entire community could do to mitigate this problem is set up a community defence fund. We did this once before 16 years ago when SCO was threatening to sue Linux users and we could do it again. Knowing there was a deep pot to draw on would certainly make any Rothschild like Troll think twice about the vulnerability of an Open Source project, and may even deter the usual NPE type troll with more resources and better crafted patents.

Finally, it should be noted that this episode demonstrates how broken the patent system still is. The key element Rothschild like trolls require is the presumption of validity of a granted patent. In theory, in the light of the Alice decision, the USPTO should never have granted the patent but it did and once that happened the troll targets have no option than either to pay up the smaller sum requested or expend a larger sum on fighting in court. Perhaps if the USPTO can’t stop the issuing of bogus patents it’s time to remove the presumption of their validity in court … or at least provide some sort of prima facia invalidity test to apply at summary judgment (like the project is older than the patent, perhaps).

#open-source #patent-troll #rothschild

https://blog.hansenpartnership.com/lessons-from-the-gnome-patent-troll-incident/

This article is the first of  a set supporting the conclusion that the GPL family of copy left licences are the best ones for maintaining a healthy development pace while providing a framework for corporations and users to influence the code base.  It is based on an expansion of the thoughts behind the presentation GPL: The Best Business Licence for Corporate Code at the Compliance Summit 2017 in Yokohama.

A Community of Developers

The standard definition of any group of people building some form of open source software is usually that they’re developers (people with the necessary technical skills to create or contribute to the project).  In pretty much every developer driven community, they’re doing it because they get something out of the project itself (this is the scratch your own itch idea in the Cathedral and the Bazaar): usually because they use the project in some form, but sometimes because they’re fascinated by the ideas it embodies (this latter is really how the Linux Kernel got started because ordinarily a kernel on its own isn’t particularly useful but, for a lot of the developers, the ideas that went into creating unix were enormously fascinating and implementations were completely inaccessible in Europe thanks to the USL vs BSDi lawsuit).

The reason for discussing developer driven communities is very simple: they’re the predominant type of community in open source (Think Linux Kernel, Gnome, KDE etc) which implies that they’re the natural type of community that forms around shared code collaboration.  In this model of interaction, community and code are interlinked: Caring for the code means you also care for the community.  The health of this type of developer community is very easily checked: ask how many contributors would still contribute to the project if they weren’t paid to do it (reduction in patch volume doesn’t matter, just the desire to continue sending patches).  If fewer than 50% of the core contributors would cease contributing if they weren’t paid then the community is unhealthy.

Developer driven communities suffer from three specific drawbacks:

They’re fractious: people who care about stuff tend to spend a lot of time arguing about it.  Usually some form of self organising leadership fixes a significant part of this, but it’s not guaranteed.
Since the code is built by developers for developers (which is why they care about it) there’s no room for users who aren’t also developers in this model.
The community is informal so there’s no organisation for corporations to have a peer relationship with, plus developers don’t tend to trust corporate motives anyway making it very difficult for corporations to join the community.

Trusting Corporations and Involving Users

Developer communities often distrust the motives of corporations because they think corporations don’t care about the code in the same way as developers do.  This is actually completely true: developers care about code for its own sake but corporations care about code only as far as it furthers their business interests.  However, this business interest motivation does provide the basis for trust within the community: as long as the developer community can see and understand the business motivation, they can trust the Corporation to do the right thing; within limits, of course, for instance code quality requirements of developers often conflict with time to release requirements for market opportunity.  This shared interest in the code base becomes the framework for limited trust.

Enter the community manager:  A community manager’s job, when executed properly, is twofold: one is to take corporate business plans and realign them so that some of the corporate goals align with those of useful open source communities and the second is to explain this goal alignment to the relevant communities.  This means that a good community manager never touts corporate “community credentials” but instead explains in terms developers can understand the business reasons why the community and the corporation should work together.  Once the goals are visible and aligned, the developer community will usually welcome the addition of paid corporate developers to work on the code.  Paying for contributions is the most effective path for Corporations to exert significant influence on the community and assurance of goal alignment is how the community understands how this influence benefits the community.

Involving users is another benefit corporations can add to the developer ecosystem.  Users who aren’t developers don’t have the technical skills necessary to make their voices and opinions heard within the developer driven community but corporations, which usually have paying users in some form consuming the packaged code, can respond to user input and could act as a proxy between the user base and the developer community.  For some corporations responding to user feedback which enhances uptake of the product is a natural business goal.  For others, it could be a goal the community manager pushes for within the corporation as a useful goal that would help business and which could be aligned with the developer community.  In either case, as long as the motives and goals are clearly understood, the corporation can exert influence in the community directly on behalf of users.

Corporate Fear around Community Code

All corporations have a significant worry about investing in something which they don’t control. However, these worries become definite fears around community code because not only might it take a significant investment to exert the needed influence, there’s also the possibility that the investment might enable a competitor to secure market advantage.

Another big potential fear is loss of intellectual property in the form of patent grants.  Specifically, permissive licences with patent grants allow any other entity to take the code on which the patent reads, incorporate it into a proprietary code base and then claim the benefit of the patent grant under the licence.  This problem, essentially, means that, unless it doesn’t care about IP leakage (or the benefit gained outweighs the problem caused), no corporation should contribute code to which they own patents under a permissive licence with a patent grant.

Both of these fears are significant drivers of “privatisation”, the behaviour whereby a corporation takes community code but does all of its enhancements and modifications in secret and never contributes them back to the community, under the assumption that bearing the forking cost of doing this as less onerous than the problems above.

GPL is the Key to Allaying these Fears

The IP leak fear is easily allayed: whether the version of GPL that includes an explicit or implicit patent licence, the IP can only leak as far as the code can go and the code cannot be included in a proprietary product because of the reciprocal code release requirements, thus the Corporation always has visibility into how far the IP rights might leak by following licence mandated code releases.

GPL cannot entirely allay the fear of being out competed with your own code but it can, at least, ensure that if a competitor is using a modification of your code, you know about it (as do your competition), so everyone has a level playing field.  Most customers tend to prefer active participants in open code bases, so to be competitive in the market places, corporations using the same code base tend to be trying to contribute actively.  The reciprocal requirements of GPL provide assurance that no-one can go to market with a secret modification of the code base that they haven’t shared with others.  Therefore, although corporations would prefer dominance and control, they’re prepared to settle for a fully level playing field, which the GPL provides.

Finally, from the community’s point of view, reciprocal licences prevent code privatisation (you can still work from a fork, but you must publish it) and thus encourage code sharing which tends to be a key community requirement.

Conclusions

In this first part, I conclude that the GPL, by ensuring fairness between mutually distrustful contributors and stemming IP leaks, can act as a guarantor of a workable code ecosystem for both developers and corporations and, by using the natural desire of corporations to appeal to customers, can use corporations to bridge the gap between user requirements and the developer community.

In the second part of this series, I’ll look at philosophy and governance and why GPL creates self regulating ecosystems which give corporations and users a useful function while not constraining the natural desire of developers to contribute and contrast this with other possible ecosystem models.

https://blog.hansenpartnership.com/gpl-as-the-best-licence-community-code-and-licensing/

In the first part I discussed the balancing mechanisms the GPL provides for enabling corporate contributions, giving users a voice and the right one for mutually competing corporations to collaborate on equal terms.  In this part I’ll look at how the legal elements of the GPL licences make it pretty much the perfect one for supporting a community of developers co-operating with corporations and users.

As far as a summary of my talk goes, this series is complete.  However, I’ve been asked to add some elaboration on the legal structure of GPL+DCO contrasted to other CLAs and also include AGPL, so I’ll likely do some other one off posts in the Legal category about this.

Free Software vs Open Source

There have been many definitions of both of these.  Rather than review them, in the spirit of Humpty Dumpty, I’ll give you mine: Free Software, to me, means espousing a set of underlying beliefs about the code (for instance the four freedoms of the FSF).  While this isn’t problematic for many developers (code freedom, of course, is what enables developer driven communities) it is an anathema to most corporations and in particular their lawyers because, generally applied, it would require the release of all software based intellectual property.  Open Source on the other hand, to me, means that you follow all the rules of the project (usually licensing and contribution requirements) but don’t necessarily sign up to the philosophy underlying the project (if there is one; most Open Source projects won’t have one).

Open Source projects are compatible with Corporations because, provided they have some commonality in goals, even a corporation seeking to exploit a market can march a long way with a developer driven community before the goals diverge.  This period of marching together can be extremely beneficial for both the project and the corporation and if corporate priorities change, the corporation can simply stop contributing.  As I have stated before, Community Managers serve an essential purpose in keeping this goal alignment by making the necessary internal business adjustments within a corporation and by explaining the alignment externally.

The irony of the above is that collaborating within the framework of the project, as Open Source encourages, could work just as well for a Free Software project, provided the philosophical differences could be overcome (or overlooked).  In fact, one could go a stage further and theorize that the four freedoms as well as being input axioms to Free Software are, in fact, the generated end points of corporate pursuit of Open Source, so if the Open Source model wins in business, there won’t actually be a discernible difference between Open Source and Free Software.

Licences and Philosophy

It has often been said that the licence embodies the philosophy of the project (I’ve said it myself on more than one occasion, for which I’d now like to apologize).  However, it is an extremely reckless statement because it’s manifestly untrue in the case of GPL.  Neither v2 nor v3 does anything to require that adopters also espouse the four freedoms, although it could be said that the Tivoization Clause of v3, to which the kernel developers objected, goes slightly further down the road of trying to embed philosophy in the licence.  The reason for avoiding this statement is that it’s very easy for an inexperienced corporation (or pretty much any corporate legal counsel with lack of Open Source familiarity) to take this statement at face value and assume adopting the code or the licence will force some sort of viral adoption of a philosophy which is incompatible with their current business model and thus reject the use of reciprocal licences altogether.  Whenever any corporation debates using or contributing to Open Source, there’s inevitably an internal debate and this licence embeds philosophy argument is a powerful weapon for the Open Source opponents.

Equity in Contribution Models

Some licensing models, like those pioneered by Apache, are thought to require a foundation to pass the rights through under the licence: developers (or their corporations) sign a Contributor Licence Agreement (CLA) which basically grants the foundation redistributable licences to both copyrights and patents in the code and then the the Foundation licenses the contribution to the Project under Apache-2.  The net result is the outbound rights (what consumers of the project gets) are Apache-2 but the inbound rights (what contributors are required to give away) are considerably more.  The danger in this model is that control of the foundation gives control of the inbound rights, so who controls the foundation and how control may be transferred forms an important part of the analysis of what happens to contributor rights.  Note that this model is also the basis of open core, with a corporation taking the place of the foundation.

Inequity in the inbound versus the outbound rights creates an imbalance of power within the project between those who possess the inbound rights and everyone else (who only possess the outbound rights) and can damage developer driven communities by creating an alternate power structure (the one which controls the IP rights).  Further, the IP rights tend to be a focus for corporations, so simply joining the controlling entity (or taking a licence from it) instead of actually contributing to the project can become an end goal, thus weakening the technical contributions to the project and breaking the link with end users.

Creating equity in the licensing framework is thus a key to preserving the developer driven nature of a community.  This equity can be preserved by using the Inbound = Outbound principle, first pioneered by Richard Fontana, the essential element being that contributors should only give away exactly the rights that downstream recipients require under the licence.  This structure means there is no need for a formal CLA and instead a model like the Developer Certificate of Origin (DCO) can be used whereby the contributor simply places a statement in the source control of the project itself attesting to giving away exactly the rights required by the licence.  In this model, there’s no requirement to store non-electronic copies of the the contribution attestation (which inevitably seem to get lost), because the source control system used by the project does this.  Additionally, the source browsing functions of the source control system can trace a single line of code back exactly to all the contributor attestations thus allowing fully transparent inspection and independent verification of all the inbound contribution grants.

The Dangers of Foundations

Foundations which have no special inbound contribution rights can still present a threat to the project by becoming an alternate power structure.  In the worst case, the alternate power structure is cemented by the Foundation having a direct control link with the project, usually via some Technical Oversight Committee (TOC).  In this case, the natural Developer Driven nature of the project is sapped by the TOC creating uncertainty over whether a contribution should be accepted or not, so now the object isn’t to enthuse fellow developers, it’s to please the TOC.  The control confusion created by this type of foundation directly atrophies the project.

Even if a Foundation specifically doesn’t create any form of control link with the project, there’s still the danger that a corporation’s marketing department sees joining the Foundation as a way of linking itself with the project without having to engage the engineering department, and thus still causing a weakening in both potential contributions and the link between the project and its end users.

There are specific reasons why projects need foundations (anything requiring financial resources like conferences or grants requires some entity to hold the cash) but they should be driven by the need of the community for a service and not by the need of corporations for an entity.

GPL+DCO as the Perfect Licence and Contribution Framework

Reciprocity is the key to this: the requirement to give back the modifications levels the playing field for corporations by ensuring that they each see what the others are doing.  Since there’s little benefit (and often considerable down side) to hiding modifications and doing a dump at release time, it actively encourages collaboration between competitors on shared features.  Reciprocity also contains patent leakage as we saw in Part 1.  Coupled with the DCO using the Inbound = Outbound principle, means that the Licence and DCO process are everything you need to form an effective and equal community.

Equality enforced by licensing coupled with reciprocity also provides a level playing field for corporate contributors as we saw in part 1, so equality before the community ensures equity among all participants.  Since this is analogous to the equity principles that underlie a lot of the world’s legal systems, it should be no real surprise that it generates the best contribution framework for the project.  Best of all, the model works simply and effectively for a group of contributors without necessity for any more formal body.

Contributions and Commits

Although GPL+DCO can ensure equity in contribution, some human agency is still required to go from contribution to commit.  The application of this agency is one of the most important aspects to the vibrancy of the project and the community.  The agency can be exercised by an individual or a group; however, the composition of the agency doesn’t much matter, what does is that the commit decisions of the agency essentially (and impartially) judge the technical merit of the contribution in relation to the project.

A bad commit agency can be even more atrophying to a community than a Foundation because it directly saps the confidence the community has in the ability of good (or interesting) code to get into the tree.  Conversely, a good agency is simply required to make sound technical decisions about the contribution, which directly preserves the confidence of the community that good code gets into the tree.   As such, the role requires leadership, impartiality and sound judgment rather than any particular structure.

Governance and Enforcement

Governance seems to have many meanings depending on context, so lets narrow it to the rules by which the project is run (this necessarily includes gathering the IP contribution rights) and how they get followed. In a GPL+DCO framework, the only additional governance component required is the commit agency.

However, having rules isn’t sufficient unless you also follow them; in other words you need some sort of enforcement mechanism.  In a non-GPL+DCO system, this usually involves having an elaborate set of sanctions and some sort of adjudication system, which, if not set up correctly, can also be a source of inequity and project atrophy.  In a GPL+DCO system, most of the adjudication system and sanctions can be replaced by copyright law (this was the design of the licence, after all), which means licence enforcement (or at least the threat of it) becomes the enforcement mechanism.  The only aspect of governance this doesn’t cover is the commit agency.  However, with no other formal mechanisms to support its authority, the commit agency depends on the trust of the community to function and could easily be replaced by that community simply forking the tree and trusting a new commit agency.

The two essential corollaries of the above is that enforcement does serve an essential governance purpose in a GPL+DCO ecosystem and lack of a formal power structure keeps the commit agency honest because the community could replace it.

The final thing worth noting is that too many formal rules can also seriously weaken a project by encouraging infighting over rule interpretations, how exactly they should be followed and who did or did not dot the i’s and cross the t’s.  This makes the very lack of formality and lack of a formalised power structure which the GPL+DCO encourages a key strength of the model.

Conclusions

In the first part I concluded that the GPL fostered the best ecosystem between developers, corporations and users by virtue of the essential ecosystem fairness it engenders.  In this part I conclude that formal control structures are actually detrimental to a developer driven community and thus the best structural mechanism is pure GPL+DCO with no additional formality.  Finally I conclude that this lack of ecosystem control is no bar to strong governance, since that can be enforced by any contributor through the copyright mechanism, and the very lack of control is what keeps the commit agency correctly serving the community.

https://blog.hansenpartnership.com/gpl-as-the-best-licence-governance-and-philosophy/

One of the recent experiences of Linux Plumbers Conference convinced me that if you want to be part of a true open source WebRTC based peer to peer audio/video interaction, you need an internet address that’s not behind a NAT. In reality, the protocol still works as long as you can contact a stun server to tell you what your external address is and possibly a turn server to proxy the packets if both endpoints are NATed but all this seeking external servers takes time as those of you who complained about the echo test found. The solution to all this is to connect over IPv6 which has an address space large enough to support every device on the planet having its own address. All modern Linux distributions support IPv6 out of the box so the chances are you’ve actually accidentally used it without ever noticing, which is one of the beauties of IPv6 autoconfiguration (it’s supposed to just work).

However, I recently moved, and so lost my fibre internet connection to cable but cable that did come with an IPv6 address, so this is my story of getting it all to work. If you don’t really care about the protocol basics, you can skip down to the how. This guide is also focussed on a “dual stack” configuration (one that has both IPv6 and IPv4 addresses). Pure IPv6 configurations are possible, but because some parts of the internet are still IPv4 only, they’re not complete unless you set up an IPv4 encapsulating bridge.

The Basics of IPv6

IPv6 has been a mature protocol for a long time now, so I erroneously assumed there’d be a load of good HOWTOs about it. However, after reading 20 different descriptions of how the IPv6 128 bit address space works and not much else, I gave up in despair and read the RFCs instead. I’ll assume you’ve read at least one of these HOWTOS, so I don’t have to go into IPv6 address prefixes, suffixes, interface IDs or subnets so I’ll begin where most of the HOWTOs end.

How does IPv6 Just Work?

In IPv4 there’s a protocol called dynamic host configuration protocol (DHCP) so as long as you can find a DHCP server you can get all the information you need to connect (local address, router, DNS server, time server, etc). However, this service has to be set up by someone and IPv6 is designed to configure a network without it.

The first assumption IPv6 StateLess Address AutoConfiguration (SLAAC) makes is that it’s on a /64 subnet (So every subnet in IPv6 contains 1010 times as many addresses as the entire IPv4 internet). This means that, since most real subnets contain

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