Page 58 - Proceedings of the 2017 ITU Kaleidoscope

2017 ITU Kaleidoscope Academic Conference

may happen in the real world. Below, Table 1 combines the SEPs are therefore still subject to FRAND licenses
applicable rules discussed in Part 2 and the tensions argued provided by patent holders.
in the following texts. Arguably, SSOs have less concerns for encouraging OSS
Table 1: Applicable rules and tensions in major scenarios implementations. Actually, open source implementations on
Implem Standardization activities standards are not rare in practice. For example, in the GSM
entation Direct use of Essential Patent built standards developed by the ETSI, there are several OSS
code copyright on code projects involved that provide GSM features, e.g. the
SSO FRAND Ownership of FRAND, FRAND on OpenBTS which develops a base transceiver station. There
3
specifications compare SEPs* are also open source projects under GPL v.2 that implement
with SPEs standards that contain FRAND committed SEPs, but many
(ETSI) of these are exempted from patent license obligations on the
Distribution: Not condition that they are not used commercially, e.g.
Software specified OpenBSC and Open IMS Core [28]. Nevertheless, this does
guidelines (ITU, (ITU,
ETSI); Not IEEE) not remove all the risks. Research from Lundell, et al.,
specified showed empirical evidence that some organizations
(IEEE) controlling patents either cannot be reached or decline to
OSS NA Contributors Contribut RF Patent respond, that the effort to obtain a patent license might
own the ors own clause (GPL deter implementations under any open source license in the
copyright the v.3, ...) first place[6].
copyright
Free Free NA (MIT…) 3.2. Usage of OSS in developing SSOs standards
distribution distributio
subject to n subject
OSLs to OSLs Perhaps the more complex situation is for SSOs to utilize
Gap Incompat Incompatible Lack of Lack of open source working practice to develop standards. It
-s -ible with clarity clarity happens in two sub-scenarios: using source code in
Strong specifications directly; and where specifications refer to the
copyleft
same function derive from open source projects.
3.1. Implementing SSOs standards in OSS
3.2.1. Direct use of running code
Whether OSS can implement on a standard with SEPs
subject to the FRAND commitment has been discussed for In a situation of a direct use of code, the first thing come
years. Some open source opponents argued that FRAND into play is the copyright issue over this specification (code
commitment discriminates against OSS included).
implementations[20]. Several previous studies have Ownership: As we have discussed in part 2, SSOs own the
addressed the compatibility of FRAND licenses with open copyright of specifications, while in the open source project,
source licenses. Mitchell QC & Mason classified the OSLs developers remain the right holder. It is uncertain whether
accredited by OSI into three categories and concluded that SSOs still can claim the copyright if code is included as
only projects using GPL family licenses would have part of the specifications. It should be noted that the definite
uncertainties when implementing on standards with SEPs copyright ownership of specifications by SSOs has aroused
under FRAND Kesan’s work reached a similar conclusion debates. A recent case James Elliott Construction Limited v.
[4]. Irish Asphalt Limited [29], has raised the question of
Based on previous work, we now explore the features of whether European Standardization Organizations can be the
OSLs that lead to such (in)compatibility. There are three right owner for EU standards. However, we also see that a
possible categories: copyleft, patent clause, and other norms. judgement of the Landgericht (Regional Court) Hamburg as
For the first category, an open source license with strong of 31 March 2015 confirmed the copyrightability of
copyleft feature is very likely to be incompatible with a standards maintained by the German Institute for
FRAND license, whether it combines with an explicit Standardization (DIN).
patent license, e.g. GPL v.3, or not, e.g. GPL v.2. On the Distribution: One may argue that at least in the case of
other hand, licenses with weak copyleft feature are ITU and ETSI, they have software guidelines, which may
compatible with FRAND, even if they contain a royalty apply to direct code utilization, if contributors of an open
free patent clause, e.g. the EPL. source project agree to these guidelines. This may solve the
Secondly, although the granting of royalty free patent ownership issue, since these guidelines give the option to
sounds different from royalty-bearing FRAND, it does not contributors to either transfer the ownership or grant a
render the license incompatible with FRAND. Because software license. Nevertheless, the problem then lies on
most of the patent clauses in OSLs, without copyleft, only distribution. The right granted by such guidelines to copy,
apply to the “work” or “contribution” from open source. modify and distribute are only limited to specific situations
listed in those guidelines. Such restrictions obviously
contradict the free distribution guaranteed by OSLs.
3 * means whether FRAND applies is not clear, but this is the only
patent rule in the current IPRs framework of these three SSOs.

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