슬라이드 1

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1 변호사박종백 한국오픈소스법센터대표 법무법인 ( 유한 ) 태평양파트너

2 2 오픈소스소프트웨어의이해 오픈소스소프트웨어는무엇인가? 자유 누구의자유, 사용, 수정, 재배포의자유와한계 공짜배포 유료판매, 관련서비스의유료화허용여부 코드의공개 무엇을어느범위까지? 공유와기여 공유자와기여자는누구? 저작권 보호가능여부, 보호범위 라이선스계약 계약체결여부, 보호범위 적용법률과관할법원 어느국가의법, 어느국가의법원? 2

3 3 오픈소스소프트웨어의이해 소프트웨어발전역사 하드웨어 + 소프트웨어의번들판매 1969 미국법무부 v. IBM의반독점소송 IBM 패소 상용독점적소프트웨어분리판매 프리 / 오픈소스소프트웨어등장 : 사용자의복제, 수정, 배포, 재배포자유보장주장 비즈니스모델은? 3

4 4 오픈소스소프트웨어의이해 프리 / 오픈소스소프트웨어의철학 사용자에게소프트웨어복제, 수정, 배포, 재배포의자유보장 공유와기여의선순환구조 수학의공리에저작권주장없듯이소프트웨어의사유에반대 - Richard Stallman Be Benefactor or Symbiote, not Parasite! Bruce Perens, OSI의공동설립자 4

5 5 오픈소스소프트웨어의이해 프리 / 오픈소스소프트웨어의정의 프리소프트웨어의정의 Free Software Foundation 제정 4가지 Freedom to Run for any purpose Study and change Redistribute Distribute modified version 5

6 6 오픈소스소프트웨어의이해 프리 / 오픈소스소프트웨어의정의 오픈소스소프트웨어의정의 Open Source Initiative 제정 1. Free Redistribution 2. Source code 3. Derived Works 4. Integrity of The Author s Source Code 5. No Discrimination Against Persons or Groups 6. No Discrimination Against Fields of Endeavor 7. Distribution of License 8. License Must Not Be Specific to a Product 9. License Must Not Restrict Other Software 10.License Must Be Technology-Neutral 6

7 7 오픈소스라이선스의이해 7

8 8 오픈소스라이선스의이해 상업라이선스와오픈소스라이선스의비교 공통점 : 이용허락계약 상업 라이센서 / 라이선시대립구조 유료 협상을통한계약 진술, 보증 배상책임 No Copyleft 오픈소스 라이센서 / 라이선시순환적 feedback 구조 무료 No 협상 AS IS 계약 No 진술, 보증 No 배상책임 Strong/ Weak/ Non- Copyleft 8

9 9 오픈소스라이선스의이해 오픈소스라이선스의유형 Copyleft 의강도기준 Strong Copyleft 라이선스 GPL AGPL Weak Copyleft 라이선스 LGPL MPL Non-Copyleft 라이선스 APACHE MIT, BSD Copyleft 란무엇인가? 불특정 Downstream Future 사용자 ( 모든사람 ) 의자유 지속적보장위한 Share-alike 장치 : 소스코드의공개의무 + 원저작물과동일한라이선스적용의무 9

10 10 오픈소스라이선스의이해 오픈소스라이선스의기본구조와내용 서문 : 철학과취지 이용자보호규정 : 자유복제, 수정, 배포조항 소스코드의배포 / 배포서면청약 / 청약정보고지 저작자및기여자보호규정 : 저작권고지, No Warranty, No Indemnification, 해제조항 오픈소스자체및커뮤니티보호규정 : Copyleft 조항 특허허여 / 특허보복조항 10

11 11 오픈소스라이선스의이해 언어 : 공식버전은영어만공표 비교 ) Creative Commons은공식번역문인정 용어 : 각라이선스별공통된용어도있으나상이한용어도있음 공통 : Copy, Modify, Contributor, Program, Derivative Work 상이 : Distribute / Convey / Propagate 법적의미 : 각국가의저작권법, 계약법에따라해석 한국법에의한영문용어의해석, 저작권, 계약상권리, 라이선스위반의효과연구필요 11

12 12 대표적 3 유형의라이선스주요내용 GPL(General Public License) - Copyright Notice/ License Distribution Grants right to copy, modify and distribute Requires source code available to future licensees Generally Seen as Viral applies to works that are COMBINED or LINKED with distributed code Work Based on the Program > Derivative Disclaims Warranties and Indemnification May blow-up in face of patent assertion 12

13 13 대표적 3 유형의라이선스주요내용 LGPL Similar to GPL : Work based on the Library No Warranty, No Indemnification Viral Effect 전염성범위축소 : may distribute the combination of LGPL Library and Work that Uses the Library under other license - Source Code 의공개범위 LGPL Library 와 Linking 된프로그램은방식에따라차이 Static Dynamic 13

14 14 대표적 3 유형의라이선스주요내용 Apache freely used, reproduced, modified, distributed or sold. Products derived or modified from licensed software can be distributed under other licenses. Copyright notice, attribution notice A copy of the license must be redistributed along with any Apache software. 14

15 15 오픈소스 SW 에대한법적권리와보호체계 오픈소스라이선스계약에의한보호 Governing Law: 어느국가의법 Jurisdiction: 어느국가의법원 계약의성립 : 청약과승낙은언제? 어떻게? 밀접한관련있는국가의법에따라야 15

16 16 오픈소스 SW 에대한법적권리와보호체계 저작권법에의한보호 A. 오픈소스저작물의유형공동저작물 / 결합저작물 / 2 차적저작물 / 업무상저작물 B. 저작재산권복제권 / 공중송신권 / 배포권 / 대여권 C. 저작인격권 D. 보호기간및등록 16

17 17 오픈소스 SW 에대한법적권리와보호체계 부정경쟁방지법상영업비밀로서보호 특허권에의한보호 형사적인보호 A) 저작권침해죄의친고죄성완화 B) 양벌규정 17

18 I. GPL 2.0 조문의기본구조와특징 저작권표시 전문 복제와개작및배포에관한조건과규정 ( 제 0 조 - 제 10 조 ) 보증의결여 ( 제 11 조, 제 12 조 ) 18 18

19 II. GPL 2.0 조문의기본구조 - 전문 Preamble( 전문 ) The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. This General Public License applies to most of the Free Software Foundation's software and to any other program whose authors commit to using it. (Some other Free Software Foundation software is covered by the GNU Lesser General Public License instead.) You can apply it to your programs, too. When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things

20 II. GPL 2.0 조문의기본구조 - 전문 Preamble( 전문 ) To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it. downstream [ copyleft principle] For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights. [ 보호법체계 ] : 저작권침해와라이선스계약위반의법적효과인정 / 저작권인정범위 We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software

21 II. GPL 2.0 조문의기본구조 제 0 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [GPL 확대적용의대상 ] Copyrightable + work based on the program(modified work, derivative) + copy, distribute, modify 저작권법상저작권공동, 결합, 2차적저작물등 0. This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you". Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does

22 II. GPL 2.0 조문의기본구조 제 1 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION 1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program. 성명표시권 You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee

23 II. GPL 2.0 조문의기본구조 제 2 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION 2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions: a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change. b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License

24 II. GPL 2.0 조문의기본구조 제 2 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [GPL 적용예외 ] These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered 1 independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. In addition, 2 mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License

25 II. GPL 2.0 조문의기본구조 제 3 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [Copyleft principle : distribute source code + same GPL] - Copyright notice - No warranty - Same GPL at no charge 3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following: 25 25

26 II. GPL 2.0 조문의기본구조 제 3 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION 위반관련분쟁사례 - Versata v. Ameriprise - GPL enforcement by Patrick McHardy a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.) 26 26

27 II. GPL 2.0 조문의기본구조 제 3 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [ 소스코드의정의와범위 ] The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable

28 II. GPL 2.0 조문의기본구조 제 4 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [ 라이선스위반으로인한라이선스자동해제 ] - 위반자에한함. 그 downstream user 는무관 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance

29 II. GPL 2.0 조문의기본구조 제 5 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [ 승낙의필요 ] - 계약성립, 수정또는배포는승낙의묵시적의사표시 - 관습상승낙으로볼수있는행위는? 5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it

30 II. GPL 2.0 조문의기본구조 제 6 조, 제 7 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [ 원래의 licensor 와각사용자사이의계약성립및사용자권리에대한추가적제한금지 ] 6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. [ 법원판결등으로상충되는조건보다 GPL 라이선스준수우선의원칙 ] 7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program

31 II. GPL 2.0 조문의기본구조 제 7 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION [ 법원판결등으로상충되는조건보다 GPL 라이선스준수우선의원칙 ] It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice. 듀얼라이선스의허용 31 31

32 II. GPL 2.0 조문의기본구조 제 8 조, 제 9 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION 9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation

33 II. GPL 2.0 조문의기본구조 제 10 조, 제 11 조 TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION 10. If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software which is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally. NO WARRANTY [ 강행법규상면책제한규정우선적용 ] 약관법 11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION

34 II. GPL 2.0 조문의기본구조 제 12 조 NO WARRANTY 12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. [ 준거법, 재판관할규정의부존재 ] 34 34

35 III. APACHE 2.0 조문의기본구조와특징 저작권표시 사용, 재생산과배포를위한규정과조건 1. 정의 2. 저작권이용허락부여 3. 특허이용허락부여 4. 재배포 5. 기여물의제출 6. 상표권 7. 보증거절 8. 책임의제한 9. 보증또는추가책임의부담 35 35

36 IV APACHE 2.0 조문 - 제 1 조 1. Definitions "Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below). "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof

37 IV. APACHE 2.0 조문 - 제 2 조 2. Grant of Copyright License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form. 라이선스의대상 - 본저작물과 2 차적저작물 라이선스계약의성립에관한규정이없다. 라이선스위반의효력규정이없다

38 IV. APACHE 2.0 조문 - 제 3 조 3. Grant of Patent License. 특허라이선스의부여 Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. 특허라이선스의해제 38 38

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44 감사합니다.

YPR0-KOREAN0.0.indb

YPR0-KOREAN0.0.indb 1 2 3 6 7 8 10 11 12 13 19 20 20 22 23 23 25 26 14 15 15 16 17 17 18 28 29 29 30 30 31 32 32 33 33 34 35 36 37 37 38 39 40 41 41 41 42 42 44 45 45 45 46 48 50 52 7 n 8 초기화 ( 리셋 ) 홀 n n o a b 9 10 11 no