Speaker Kimberlee Weatherall
Time 2008-02-01 11:30
Conference LCA2008

Disclaimer: I am a laywer, but I am not your laywer.

Legal developments that affect open source software. Lots of them. Brief overview only. Extreme details in question time, if required.

Summary: Go in the name of the law. If you are doing good things, people will protect you.

DRM being talked about for 10 years.

DRM is dead, anti-circumnavigation law irrelavent?

Some major players shifting away from DRM.

  • music industry moving away, they were never that good anyway, continued selling high quality DRM free CDs
  • videos and movies are the important DRM players
  • DRM is not dead
  • not expecting major changes to DRM related laws in the future.


  • Anti-DMCA clause: any GPLv3 works cannot be protected by DRM
  • Anti-Tivoisation clause: hardware that will only work with unmodified software - false freedom according to FSF
  • Anti-Software patents: anti patents, descriminately patent licensing; Microsoft Novell deal

Market test, will it get used?

Legal test, will it survive a legal test? Maybe not.

Software patents

the fight is not over, but we are not going to kill software patents

  • number of granted patents is accumulating each year. Amount of investment in patents is enormus.
  • software patents started 1976
  • lawyers can get around limitations in the law
  • many software patents exist in Europe, despite ban on software patents.

Downloading continuing, despite legal action. Target the ISPs.

IFPI Digital Music Report 2008: Revolution, Innovation, Responsibility

  • ISPs responsibilty to enforce copyright
  • “Making ISP Responsibility a Reality in 2008”
  • Introduce law to require ISPs to cooperate if they don’t do so voluntarily.

Notice and Terminate

  • Copyright owner notifies ISPs of IP address of uploader
  • Warning notices are sent
  • Continued infringement leads to termination of internet service

Will warning be received by right person? What is somebody else is doing the illegal activities on that connection?

They say they won’t deny acccess to the Internet to children, they can switch to another ISP. What is the point?

Governments like to look like they are doing things.

Content filtering of pornography, at ISP level. Legslation in that area may be proposed in February.

If you filter for legitimate porn, people will download illegal porn, so you need to filter for copyright material too.

Software Patents

One concerning ZFS filesystem at Sun (CDDL license), Sun has filed counter suit. Might be a good sign.

Movement in US to improve patents, raise the bar for obviousness. Make it easier to argue a patent is obvious, applies to all patents, old and new.

Reducing amounts that can be awarded; have to deliberately copy or receive a notice; current situation it is better to avoid reading the patents and deny knowledge of the patent.

Might reduce incentives for patent trolls

Work arounds

  • Patent pledges, pledge to uphold open source.
  • Peer to patent
  • Public Patent Foundation, research patents that are upholding research

The issues

DRM locks content

other issues getting more confused

killing patents entirely would be good, but move is for more detailed investigations

legal system is getting more complex

more people are sueing FOSS, because FOSS is getting more important.

what should we do?

  • Nothing more depressing then reading Slashdot.
  • Code, code and code.
  • Don’t worry about
  • Rely on representives more, as law is becoming more and more complicated.
  • Don’t let these concerns do what you do well, lots of very smart people trying to address these issues.


Academic, how to publish something that might infringe on patent in the US? Mathematical algorithms in particular.

Publication by itself may not be a problem. Application may be an issue. Risk accessment. What is the likely outcome if you get sued? What are the potential damages? If seriously concerned, seek legal advice. Get a proper risk assessment.

What is the arguement for damages? Small. Perhaps: Competing or detracting from our market.

Patent ever greening, rebirth of patents that expire. Some cases where it is said to happen in medical patents.

Trying to take debate away from the public eye, eg. filters. Legal issues complicated. What can we do? Write about it, awareness raising. Acting through representative bodies, eg. Linux Australia, Consumer Association, etc. Governments will listen to these representative bodies. Don’t obsese about it.

Australian organisations? No organisations, but USA have funded foundations to fight patents.

If a patent is challanged successfully in one country, is it transferable. No. It has to be challenged in every country. Might be less expensive process, if the patent owner looses interest.

If open source developer is using patent, is developer liable or user? The person exploiting the patent. This could be multiple people. Who will be sued? Single university students probably won’t be. Universities and companies have more money, and are more obvious targets. Patent lawsuits are expensive.

Copyright law reform won’t happen any time soon.

Submissions open for by interested parties in the private copying of movies and images. People saying we would like to backup movies, my toddler keeps destroying them.

Australian copyright law aligned with USA law due to the USA free trade agreement, is the same true for patent? The free trade agreement is less detailed on patent. Patent office hasn’t seen much incentive to merge with USA patent law, patent law moves more slowly. Bigger concern is the patent office is issuing patents left right and centre. Example, patent for the wheel was granted.

USA constitution justifies copyright and patents. Australian constitution says patents must promote commerce. Monopolies are bad for commerce, why isn’t this challenged?

Is there anything we can do about misinformation concerning filtering, eg. arguments that we need to protect the children by filtering out copyright material.

Inform community what filters actual stop, what the costs actually are.