Overview of Constraints on FLOW

Last modified by Stefano Maffulli on 2023/02/17 01:53

Overview of Constraints on FLOW

Learning Outcomes: Participants will become familiar with the full diversity of constraints relating to rights and responsibilities that managers or coordinators of Free/Libre/Open Works may come upon in the course of their work. The focus here is to arrive at a useful shared ontology to facilitate organized discussion of issues particular to each element, which are addressed in the rest of the Syllabus. 

Many kinds of intellectual capital restrictions exist that, depending on the context and circumstances, may have FLOW enabling and FLOW obstructing roles. (Consider the Venturi Effect as the literal case of a restriction of air or water that can serve as a convenient method of enhancing flow. This usefully extends our metaphor.) Constraints may obstruct  and/or may strengthen FLOW contributors, projects, and organizations. Even litigation against FLOW projects sometimes ends up greatly strengthening the "immune system" of the entire FLOW movement, when such challenges are defeated in court.

This is a partial draft ontology, yet to be formalized in relation to the broader field. Please contact the OSI Management Education Working Group if you would like to help advance this information.

Copyright

Copyright specifies control over two-dimensional text-based, audio, or visual expression, and over the original creator's integrity, association and attribution. Copyright is relevant to FLOW projects involving computer programs because all FLOW licenses on the programs are primarily copyright licenses, however they usually include clauses related to at least some of the other types of constraints listed below. Copyright is addressed extensively in the Copyright Session of the FLOW Syllabus

Artificial Monopolies

There occurs a type of artificial monopoly created by governments to grant multi-year authority for a person or organization to enforce the payment of private taxes relating to the use of a novel, non-obvious, useful, documented idea. Such private taxation authorities were first introduced in the 1600s by European monarchs, which is why today the payments are still called "royalties".  The certificate granting this exclusive monopoly is formally called  "letters patent", a sort of published declaration by the Crown. Here in the FLOW Syllabus, we try to use functional terminology for improved understanding. The whole concept has been highly controversial from the beginning, and it remains so today. Several FLOW licenses for computer programs include some form of "non-aggression" clause to reduce litigation risk. Artificial monopolies are addressed extensively in the Artificial Monopoly Session of the FLOW Syllabus.

Trademarks

A trade-mark is comprised of text, a design, or a combination of these, that is visually unique within a market, used to distinguish an organization or its brand from others. FLOW licenses are usually explicit that their free/libre/open terms do not extend to the trade-mark(s) supplied with source code or documentation. This topic is not addressed in detail in the FLOW Syllabus. Following are some useful sources:  
— Model Trademark Guidelines (written by and for free and open source software communities) http://modeltrademarkguidelines.org/index.php?title=Home:_Model_Trademark_Guidelines
— The Python Trademark Dispute http://opensource.com/law/13/2/python-trademark-dispute

Industrial Design

Industrial design specifies control over three-dimensional expression, and over the original creator's integrity, association and attribution. FLOW licenses for "open hardware" are primarily industrial design licenses, although they usually include clauses related to at least some of the other types of constraints listed here. This topic is not yet addressed in detail in the FLOW Syllabus. Following are some useful sources:
— Industrial Designs Compared to Copyrights http://www.capatents.com/industrial7b.html
— Industrial Design: Subject matter and scope http://www.bereskinparr.com/Section/About_Intellectual_Property/Industrial_Design
— Industrial Design Act http://laws-lois.justice.gc.ca/eng/acts/I-9/FullText.html

Trade Secrets

The legal concept of "trade secret" refers to any information of value to a business that is not publicly available or otherwise generally known within the relevant industry or trade, and that is treated as secret or confidential at all times by its owner, who has taken steps to protect it. This is relevant to FLOW projects in two ways. First, commercial organizations that employ free/libre/open methods must ensure effective management of the operational boundaries between information that is shared and that which is not shared. Also, in planning, discussion or litigation, it is useful to analyze the relative effect on competitive innovation of intelligent application of trade secret practices versus artificial patents. This topic is addressed in more detail in the Trade Secrets section of the FLOW Syllabus.

Non-Compete Clauses, Agreements or Compulsion

Often employees or business partners of organizations sign non-compete agreements, which later come to be interpreted in ways that interfere with the normal exercise of FLOW freedoms and methods, during of after the period of employment or partnership. How disputes play out is typically a matter of power over fairness. This topic is not yet addressed in detail in the FLOW Syllabus. Following are some examples of its relevance to FLOW projects:

Post-Sale Restraints

Some equipment or service suppliers interfere with the normal exercise of FLOW freedoms and methods through direct prohibitions in their supply contracts, or indirectly by invalidating warranty coverage. Such constraints are rarely enforceable, but court processes are a significant cost anyways. Managers of FLOW Projects must stay alert to such restrictions, and avoid any such restrictions that could complicate their work later on. This topic is not yet addressed in detail in the FLOW Syllabus. Following are some examples to assist understanding of the concept:
— Ethyl Gasoline Corp. v. United States, 309 U.S. 436 (1940) http://supreme.justia.com/cases/federal/us/309/436/case.html
— United States v. General Electric Co., 272 U.S. 476 (1926) http://supreme.justia.com/cases/federal/us/272/476/
— Quanta Computer, Inc. v. LG Elecs., Inc. http://supreme.justia.com/cases/federal/us/553/06-937/

Indemnification

Some organizations require that suppliers of computer programs indemnify the client for a set of risks. On this basis, they may rule out obtaining FLOW solutions because these license all specify that the user assumes all risks. Some large organizations bundle the sale of an "insurance" service with a deployment service. Managers of FLOW Projects should avoid indemnification agreements, as they conflict with the relationship premise of the free/libre/open way. This topic is not yet addressed in detail in the FLOW Syllabus. Following is a short video that explains why:
— Indemnification Means Always Having to Say You're Sorry http://www.youtube.com/watch?v=WpYcB-_x9gA

Deceptive Changes to Legislation

Occasionally in various jurisdictions, attempts are made to get constraints on FLOW introduced into legislation through clever and misleading language, secrecy and undemocratic elitism. Managers of FLOW Projects must stay alert to such developments, and should proactively participate in defending free/libre/open market principles. These topics are not yet addressed in detail in the FLOW Syllabus. However following are two examples:

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