' Ryan Rypka | MTTLR

Open Source Software and the Many Questions it Brings

Open source software was born out of the idea that many people working together could produce better software—software that could be used by all who wanted it. For a program to be open source, the source code must be freely available to its users. With ideal open source software, anyone can use and edit the code. There are no licensing fees or use restrictions, and anyone can pass it along, edited or not. This method of development allows programmers around the world to come together and produce high-quality software. Each developer adds their knowledge, skill and experience to help the collective product. Most of the work on open source projects is done by volunteers that believe in or have an interest in the project. These programmers have produced some great work: Open source software is responsible for Ubuntu, Firefox, and WordPress (the platform used by this very website). From a legal standpoint, open source software creates a lot of questions. Who owns the collective work? Does a developer own his or her edits? Can a developer distribute the software in binary form without source code? Can open source code be modified and sold? What happens when open source code is combined with proprietary code? Are there any warranties for the code? Who is responsible for deciding what edits make the final version? The answers to these questions—if there are any—depend on the type of open source license that is used. There are many licenses, and each has its benefits and pitfalls. The two main categories of open source licenses are permissive licenses and copyleft licenses. Permissive licenses are the...

FRAND Royalties will Impact the Cost of Your Next Smart Phone

The 5th generation of cellular networks, commonly referred to as 5G, is expected to be released in 2020. 5G will use a higher frequency band that will allow peak speeds twenty times faster than today’s 4G network and that will be able to support more devices at a time. With these advances, there will be a new series of legal issues. Specifically, there will be another round of litigation surrounding standard essential patents (“SEPs”) and licenses on fair, reasonable and non-discriminatory (“FRAND”) royalty rates. Technology standards like 5G or Wi-Fi are created by organizations like the Institute of Electrical and Electronic Engineers, the International Telecommunication Union and the European Telecommunications Standard Institute, commonly referred to as standard-setting organizations (“SSOs”). Before an SSO adopts a standard, it requires the members of the organization, typically technology companies, to license any SEPs on FRAND terms. Any patent that is required for the standard to work is an SEP. Determining FRAND terms has been a major and much-litigated issue. Huawei v. InterDigital (China, 2013), Unwired Planet v. Huawei (UK, 2017), and TCL v. Ericsson (U.S., 2017) all determined FRAND rates for 2G, 3G, and 4G cellular SEPs. FRAND rates have been determined by two approaches: bottom-up and top down. In a bottom-up approach, courts try to determine the reasonable royalty of the SEP based on the value of patented technology and by looking at comparable licenses. The bottom-up approach was used by Judge Robart in deciding one of the first FRAND cases, Microsoft v. Motorola. He used modified Georgia-Pacific factors to determine a reasonable royalty bases on compatible licenses. The top-down approach requires...