Rights: Author Zhan Yi, China · Shanghai lawyers, adjunct professor of East China University of Political Science, micro-channel ZhanyiAttorney, mailbox [email protected].
Disclaimer: The spread of this article, first presented in the text above the right information.
Definition 1 next couple say
Information technology industry, more and more to the wonderful [1]. Attendant, so and so is technology, "the definition of the future," saying:
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Internet of things : the future has to [2].
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Block chain defining the future [3]; Rise and Decline of large data block chain economy [4].
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Big Data and Intelligent revolution redefining the future [5].
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AI era: Human and Machine under wealth, work and thinking big in the future [6].
So many "future" ...... confused for? confused? We think about it carefully, you will find: big data or, artificial intelligence, or whatever, to rely on the Internet, algorithm. The specific implementation to achieve, is to run the code that makes up the software.
No software to perform data collection, denoising, mining, analysis, forecasts, massive data processing or data is empty structured data. Ali Baba's big data product: "business consultant" is big data software retail electricity supplier.
The software for the Lynx businesses to provide "industry live" "Search word analysis," "buyers crowd portrait" "portrait of people searching" and other major statistical analysis services [7]. This large data products, can help businesses to more accurately determine consumer behavior, make more effective marketing strategies.
Of course, big data applications, across almost all sectors, including social networking, manufacturing, finance, health, transportation, implemented by software that area. But large data or big data software is only an order of magnitude technology products, can not be defined in the future.
AI is also highly dependent on software. Natural language processing, image recognition or, neural network or, require design of appropriate algorithms performed by specific software. Such as chat robot, mainly siri, etc. can chat app, chat window, or voice wakeup app to communicate, to solve customer problems of computer software [8].
The moment well-known household products artificial intelligence, there are Google Home, Amazon Alexa. But whether home or industrial uses, as artificial intelligence and big data, also belong to the order of specific technologies, it is impossible to define the future.
The Internet of Things, block chain, belong to the overall solution of one or several scenarios, including business methods, management science, sensing, biological, passwords and other prior art, this is the foundation of which IT applications, the software is still core.
But block chain is not resolved before the transaction efficiency, operation costs and other issues, commercial application remains to be seen. As a product or solution in several areas, apparently unable to assume defining the future mission.
In short, the "Software is eating the world." [9], no one to write the source code (Source Code), regardless of things, big data, or artificial intelligence, not only can not really realize, but these techniques can not exist in isolation, only through software to organically generate performance.
So, software-defined future? In the industrial, office, entertainment and other information all in, by the software today that the future of software-defined, equal to said data analysis software, travel query software, robotics software, office software, decide the future of online gaming software, or you can operating system software, said the decision, which is to decide the future of all software, which is equal to said nothing.
Although the various areas of the future need to run the software (of course, language, programming, operation mode software is also evolving), but the ability to define the future, will not be for some specific software technology, or the scene of application solutions, and only reached the magnitude of the job system. This problem is converted into future software implementation, defined by what kind of system?
The answer is open source method, that is defining the future of open-source method.
2 Why is open source law
And not a law called "open source Law", the open-source method is the ability to define the future of a system (of this magnitude should be enough). The law-based system running. Because no matter the future of technology, and in the future, order or rule of life will continue to be civilized existence of high-quality conditions.
Why is open source method to define the future?
WinTel or PC software from the era of talking about this. Win that is famous operating system, Microsoft Windows, since the software is out of the hardware, and started issuing independent human social influence of iconic products.
Windows developed within Microsoft, closed source, a copy of the sale of allotments object code to users, collect royalties (copyright licensing fees), the world's mainstream PC user's operating system in the 1990s, represents the At that time the software ecosystem (also can be said to begin MS-DOS after 80 years, to this conclusion by a computer software historian), the market value of the world's first to earn money and impact so far.
Under this ecological, Windows software popular models become mainstream, the source code of a software implementation as copyrighted property of (China's "Copyright Law" Article 57 stipulates that this Law, copyright, ie copyright comparing national copyright laws copyright and copyright works, although there are differences in terms of scope, moral rights, but the basic agreement on the scope of property rights), as each software company's trade secrets, is not open.
But this is not all eco-programmers agree. As early as the 1980s, when the great God of programming Richard Stallman, Bruce Perens and other objection: how can the source code closed up to make money? This computer will hinder the progress of science! what? Copyright Act (Copyright Law) allowed? Then we do a Copyleft Law, to tell you the opposite of Copyright.
Thus, "free software" (Free Software) was born, to mention advocate "Copyleft Law" (Law passed before the open-source) spirit, advocated the source code is open and free to use, study, dissemination, modification - free software licenses (different types and there is a difference version of the license).
Not opposed to the use of free software training, technical support and other services fees, the famous free software companies - Little Red Riding Hood (Red Hat) offers free Linux operating system, but to guide subscriptions, technical support and guarantee is a lot a lot of dollars in fees [10].
But Free Software is "free" is not only the meaning of "freedom", and "free" means, easily misleading, free software is completely white with white take someone else's source code.
Moreover, free software has stipulated that the use of the software code free software, no matter how much, the software must be clearly followed the open source and commercial community base, which let by selling the code to make a living of the majority of commercial software companies in the WinTel ecology prohibitive, it is not conducive to mobilize the masses, people's war.
Thus, free software version 2.0 - "open source software" (Open Source Software) was born, to promote the spirit of "open source Law" (the open-source method was born, opened the base has reached 20 years of start-ups, arduous journey long march, may just arrived in northern Shaanxi), advocated the source code is to be open, but whether closed source code is changed to change after take, whether the sales code is casual [11] - open source software licenses (license types and versions of the differences , the nature of free software is open source software, free software licenses are allowed to be bought or closed source codes) [12].
After the "open source" was born, long-term obscurity or is one of the mainstream WinTel foil, chipping away. But in recent years, the extent of social networking trend of rapid deepening of the early scenes of the information society have been presented to mankind.
Information is human contact, the nature of the content needs to communicate with performance [13]. Information age information more transparent, closed source code, so that users always in the dark and cold of space, there is no sense of security, not to improve the source code. Google's open-source Android smartphone operating system successfully, it is proved that information transparent to the upper hand, winning business in the Internet age.
Information age also requires large dimensions of collaboration and network services. Closed operation of the company, received an allotment copyright royalties, no longer meet the network environment and derived SaaS PaaS, IaaS situation.
"Open source" concept is clearly born for the information age. Standing in the doorway of the 2020s, we find that "open source" software has been the rise of various software, business software giant also have to catch up with the trend:
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June 2018, Microsoft announced $ 7.5 billion acquisition of GitHub.
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October 2018, IBM with $ 3.4 billion acquisition of Red Hat.
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Facebook is known as the world's largest open source company.
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Google open source projects of more than 2000.
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Now popular big data, cloud computing is the primary development environment for most open source software, such as Hadoop, MongoDB, Openstack, Spark.
The support of open source software, open source hardware (I have been thinking, open-source Linux and open source hardware chip - based on open source RISC-V instruction set, perhaps become a weapon China in the 2020s, to achieve the core beyond), the open source industry, the rise of open-source culture is a system consisting of open-source philosophy, license, platform agreements, contracts and other community: open source method. This system to maintain the open source world order, is "open source" continuous evolution and innovation, to define the future to provide protection.
So why not develop an "open source law" mean?
3 middleware: the moment open source model law
Since it is the definition of the future, then certainly of the future. For now, the open-source method is still in the initial state, but just the test version of the line, there is a way in the moment can only be middleware. To develop a "open source Law", ushered in the era of open-source information society, it will take time.
WinTel legal basis for the system, copyright law is based intellectual property law, this is the era of post-industrial society of the early legal information, giving people the information it created - movies, software and other works, inventions and other technical solutions, products design - monopoly property rights.
Why Microsoft can sell an allotment Windows operating system? Because Windows has the right to "Copyright Law" given.
According to the Microsoft legal rights, the right to request a copy of the user is required to obtain permission for each use, rather than that user fees paid to obtain a copy of the copyright ownership of Windows. The user is concerned, Microsoft's just get a license.
The operating system to collect licensing fees, in addition to thanking Microsoft "United States copyright law", the opponents have to thank the PC era of Apple. 1983 Apple sued Franklin's case [14], Franklin companies in their products without permission in using the operating system copy APPLE Ⅱ computers.
APPLE Ⅱ computer in 1981 and the best-selling sensation, as much as 21 late 00's iPhone smartphone and iPad tablet, Franklin company to do so to let computer products compatible with APPLE Ⅱ.
Franklin has admitted copying Apple's overall system program, but considered part of the operating system processes or methods of copyright law, for controlling a computer machine running, belongs to the copyright law "thinking" category, while copyright law protects only "thought" "expression". Therefore, this copy does not violate copyright laws.
United States Court of Appeals for the Third Circuit believes that copyright law does not protect functional approach, but Apple did not seek monopoly protection for this function approach, but requires the expression of the code protection methods. "The United States Copyright Law" Article 101 supports such protection request.
In the case of software, legal history, is a famous landmark case. In that case, the court made clear in the operating system program can become the object of protection of copyright law, whether in source or object code.
Other types of software also has been under the protection of copyright law, many of the software and technological achievements also need to protect intellectual property law, property transactions this form of software, the business model also plays a role.
It should be said, now is not the time to repeal copyright law, but not fully abolish the system of intellectual property law, including copyright law, patent law, including the time.
While intellectual property law and "open source" philosophy is in conflict, but intellectual property law can be used as the underlying operating system, open source law as middleware, open source software, open source community and separates the bottom area, so that all open source activities built on the rule of law open source.
Middleware main components, is well-known variety of open source licenses. These software copyright license admitted under the law, but by way of a license, the copyright of the source code open out, allowing free use of the terms by default, reproduce, modify, distribute open source software. Thus, all open source activities can be effectively executed on the middleware, the underlying legal basis and that the current legal system of intellectual property rights.
Even now, just as middleware, open source law is still a rich and constantly enrich the system. Not only more and more open source licenses (such as China's first version of the open source license Mulan PSL v1 has been introduced), to meet the various sectors of the large number of new open source business needs.
And a variety of open source community rules, data warehouse contract, code hosting agreement has also been involved, so that a complete open source law system, to provide support for open source software in more areas of expansion.
But we should also note that the open-source method just as the sun rising, is still far from maturity shine on the earth. Oracle's acquisition of SUN companies, including SUN's already open source Solaris operating system, but decided not to support open-source Solaris, the new version of the commercial operation again.
Google's GFS, MapReduce, Bigtable, Microsoft's Azure, as well as VMware, AWS, these Internet age will remain a long commercial software, and play a major function in the application market.
: 4 open, commercial principles of open source law
A system, such as a law, if not in principle, will lose its soul. Legal principles of open source law should include the following two items: the principle of openness and commercial principles.
Open , both open source intention, but also the principles of open source law. Open source system of law, rules, licenses, platform agreement should be based on the core values open goal.
The degree and extent of the network open is highly positively correlated. High degree of openness who's, who will be able to have a place in the information society.
In the 1990s, Microsoft's Windows in the fight against Apple, rely on open and compatible strategies (article Note: Not open source). Windows compatible platform for manufacturers, the majority of application developers open, creating a large ecological Windows technology, business, and thus become the mainstream operating system products.
Apple's Mac, then create the software and hardware is a closed system, openness far less than Windows, although technically dominant, but lost the opportunity to strive to become dominant operating system. But this is part of the PC era of open, not open in the sense of belonging to the principles of open source law.
In the Internet age a new stage of all things Internet, it is necessary that the principle of openness of open source law. This principle, transparency of information in the pursuit of higher dimensions, to overcome the disadvantages of closed source code, bringing together tens of thousands of technical personnel, so as to achieve great collaboration on a global scale, stacked style continued to promote more and greater innovation. The principle of openness, but also for the hundreds of millions of users around the world - to bring freedom and sharing of information to enhance the quality of information consumption - individuals or institutions. In these "Software swallowed world" information society, it is extremely important.
As a major component of the open-source method - all open source licenses, it reflects the principle of openness. OSI interpretation of the "open" rich meaning in law, pointed out that "open source" is not just open source, also include allowing free redistribution (Free Redistribution), shall not discriminate against any individual or organization (No Discrimination Against Persons or Groups) , and should be open to all licensed products (license Must Not be Specific to a product) [15] and so on.
Commercial , open source law is another important principle. Open or open source is inseparable from the business, which comes from a simple truth, people have to eat, or that people need to get interest (within reason) to the survival and development, "it is human to seek individually or in groups in society get or a desire to meet the requirements, so when people adjust the relationship between people and the arrangement of human behavior, must take into account this desire or request "[16].
If there are who say open source is to do charity, contribute to, not otherworldly, it can only recommend to do it immortal. Business Principles are an important part of the open-source method - open source software jurisprudence - on has been fully implemented.
In the year 2008 Jacobsen v Katzer case [17], the US federal appeals court on commercial principles of open source law were classic statement: Traditionally, copyright owners is through direct sale of its underlying copyright (article Note: For example WinTel era sales copy software business model pieces) for dollars. But can not because of the open source license does not involve payment of money, we recognized non-commercial.
The Court noted that, under an open source license to create items and protection of copyright law works published, although not directly collect license fees, but with enormous benefits beyond licensing fees, including commercial interests. For example, the program can create, to get the software market share by offering certain free components.
Similarly, a programmer or software company can hatch an open source project, to get goodwill on domestic or international (article Note: The intellectual property law, goodwill is itself a legal interest protected).
Court confirmed that, although open source license does not seek to direct economic benefits, but the commercial or economic benefit remains its essence.
Like freedom, order, recognize, encourage and protect a subject (person or organization) to rightfully virtues pursuit of material interests, but also the information society. The principle of law, rule, to achieve this virtue, is the mission of open source law. Therefore, one of the main commercial principles is an essential principle of the open-source method.
Open source in the Internet age, especially in the field of cloud computing to achieve the rise, and find SaaS business models are inseparable. This model effectively challenging the allotment of the times and will replace a PC software business model to sell object code. Example mentioned above Hadoop, MongoDB, Openstack, Spark.
Community efforts to 5: Summary
Mr. Liu Tiandong authoritative open source experts say: This is one of the subject "Community over code (the community is more important than the code) [18]." The famous ASF.
The open source community, open source method to make a reality of the law.
Around different open source licenses (Open Source Law "law department" or "sub"), the open source community to develop a wide variety of model, type and size.
For example, more well-known domestic OSCHINA, Gitee, China and other open-source community and Linux open source community.
Also, more well-known international GitHub, OSI and a variety of open-source-related foundations.
Open source method can operate and community relations projects in the community, provide a legal basis for the. Includes a home and finds itself trading community, the community accounts, projects, and other data as virtual property [19].
Open source law defining the future depends on the efforts of the community.
Explanatory Note
1, what I said, we should all agree. Information technology has profoundly changed our way of thinking, travel, work and lifestyle. Lawyers have also collected more than in the past by big data analysis Referee case, the increased use of e-justice platform to send and receive case information, to more exchanges through the terminal or in the cloud, contact inspection. Allegedly, artificial intelligence will replace the work of a lawyer, will replace at least a majority of the lawyer. As a young lawyer, I am a little anxious Kazakhstan.
2, "Internet of things: the future has come," the think tank of things, Machinery Industry Press in December 2015.
3, "Redefining the Future: block chain definition of financial, business, culture and our way of life! "Huang Zhen forward, Beijing Joint Publishing Company in July 2018.
4, "the Google era: the rise and decline of large data block chain economy," [the United States] George Gilder (George Gilder) the modern publishing house in September 2018.
5, "intelligent era: big data and intelligent revolution to redefine the future", [the United States] with Wu, CITIC Publishing Group in August 2016.
6, "the era of artificial intelligence: human-computer symbiosis under wealth, big future work and thinking," [the United States] Jerry Kaplan (Jerry Kaplan) the Zhejiang People's Publishing House in April 2016.
7, (2017) 8601 Early Republic of China Zhejiang No. 4034 civil judgment.
8, "natural language processing research report" https://gitbook.cn/gitchat/geekbook/5b988b4eca9910654c0823f5/topic/5b993b7cca9910654c08484f,2019年 November 30 last visit.
9, a phrase from Mark Anderson (Marc Andreessen).
10, not advertising Ha! https://www.redhat.com/en/store,2019年 November 30 last visit.
11. What is "open source software"? What is "open source license"? I can refer to my article wrote, "China's first license Zhang Kaiyuan" Mulan "Law Review", the open source community, open source on China and other well-known open source media have published.
12, where the difference between different "open source license" in? I can refer to my article wrote, "China's first license Zhang Kaiyuan" Mulan "Law Review", the open source community, open source on China and other well-known open source media have published.
13, can refer to my book I wrote in 2008, "Information Law Lecture" Introduction to the first chapter, East China University of Political Science textbooks.
14, https: //openjurist.org/714/f2d/1240/apple-computer-inc-v-franklin-Computer-corporation,2019年 November 30 last visit.
15, https://opensource.org/osd,2019年 December 2 last visit.
16, "social control by the law - the law of the mission," [the United States] Pound the Commercial Press in April 1984 first edition.
17, http: //www.cafc.uscourts.gov/sites/default/files/opinions-orders/08-1001.pdf 2019 Nian 12 Yue 2 and Japan recently visit.
18, Mr. Liu Tiandong open source community is co-founder and chairman of one of the world's more than 700 full members of ASF.
19, Article 127 China, "General Principles of Civil Law" provides that "the law on data protection of network virtual property provisions, in accordance with its provisions." This is likely to open source property legislation, provide a sufficient legal basis.