Mikko Välimäki

Dual Licensing in Open Source Software Industry

This paper analyses how several open source companies use dual licensing: both open source and proprietary licenses for one product. Three case studies based on the experiences of companies Sleepycat Software Inc., MySQL AB, and TrollTech AS illustrate the issue. Especially the legal and economic requirements of dual licensing are identified.

The impact of free and open source licensing on operating system software markets

This paper describes the impact of different open source copyright licensing arrangements on competition in microcomputer operating system markets. We compare the historical evolution of the licensing policies of Microsoft Windows, Apple OS X and GNU/Linux operating systems. We argue that open source and free software licensing has been one of the most important factors of change in the microcomputer operating system markets in the recent years. We have seen new entrants in the relatively closed markets as well as renewed business models by incumbents. However, there has been no single open source strategy; all market players have adopted open source into their operating system strategy in one form or other.

Assessing Legal Challenges on the Mobile Internet

This article describes some legal challenges related to information products and services on the mobile Internet and the World Wide Web. Using a scenario-based methodology, it describes the future mobile Internet and explains how information products and services would be used on it. A systematic method is used to build the scenarios. As the problems likely to emerge are very complex, the scenarios take into account several major factors that delineate the mobile Internet and its use--not just technological changes and economic factors, but societal issues and how individuals feel and behave. The scenarios make it possible to identify the kinds of legal challenges that are likely to emerge. Analysis of the scenarios indicates that intellectual property rights, privacy, and contracts are the legal areas most likely to involve challenges on the mobile Internet.

Digital rights management on open and semi-open networks

Gives an overview of how the openness of the future Internet affects digital rights management (DRM). There will be open and semi-open parts in the future Internet. DRM systems enable many important features of information product distribution on the Internet. At the same time, these systems have significant costs: how should content distributors maintain user friendliness and solve revenue-earning difficulties? While DRM systems enable efficient charging possibilities, it is a challenge to implement DRM in the open Internet in a way that attracts customers and really adds value to their experience. Plausibly, there will be many competing DRM solutions. They should, however, be standardized and interoperable enough to enable customers to use information products on different platforms. DRM systems must be appropriately applicable to both open and semi-open networks. It may be technically easier to implement a DRM system in a semi-open environment, but that is not a sufficient solution for a longer-term view. DRM system providers should at least have roadmaps of how to develop their products to work in an open network and on multiple platforms.

DRM Interoperability and Intellectual Property Policy in Europe

Apples dominating music downloading service iTunes Music Store has brought interoperability debate once again on the table. To be sure, Apples music downloading service is just one example of a closed Digital Rights Management system controlled by a single company or organization in a given market. For example, the so-called copy protected CDs have typically had proprietary DRM systems meaning that the discs can be played only on record label-specific software players. Interoperability is also a matter of degree. In some cases interoperability information is available but only under restrictive and somewhat expensive licensing terms. This is for example the case of DVD format, where DVD Copy Control Association controls the necessary information to produce compatible DVD players. Arguably, proprietary DRM systems are in general problematic to both consumers and competitors. This article analyses DRM interoperability in the light of EU copyright, competition and consumer laws. First, it is asked why copyright directive lacks an explicit interoperability provision and to what extent the directive, however, may allow the development and marketing of compatible devices. Then, the interoperability provisions in the 1991 software directive and their applicability to DRM systems are discussed. The situation is briefly compared to the United States and the possibility of national copyright policies is mentioned following the French example. Second, the article considers EC competition law as a means to enforce interoperability in DRM systems. Analogies are drawn from existing case law. Third, the role of consumer protection regulation in the DRM interoperability debate is discussed following the lead of Scandinavian consumer protection authorities. In the end, the article discusses whether there is a need to recognize interoperability as a general principle in the EU intellectual property policy and what measures could be used to strengthen such policy. Competition policy approach is suggested to provide a formal legal doctrine that could be in the long term implemented in intellectual property laws. In the meantime, consumer protection law can be used as a transitional tool for opening up the most far-reaching DRM systems.

A Flexible Approach to RAND Licensing

This article discusses the meaning of reasonable and non-discriminatory (RAND) licensing terms in standards from European competition law perspective. Building on the Microsoft case, the article argues that the competition law assessment of RAND must take into account the licensing environment where the standard is used. The proposed flexible case-by-case approach to RAND would be also economically justified.

Introducing Class Actions in Finland - Lawmaking Without Economic Analysis

Finnish Parliament accepted in February 2007 a new law on class actions (literally group actions), which entered into force 1 October, 2008. The legislative process was particularly slow. Finland has been preparing a law on class actions since the early 1990s and this was - depending on the criteria of counting - the fourth try. Some fifteen years ago the idea of class actions was something new in Europe. Time passes quickly however, and the new Finnish law cannot be described as radical by any meaning of the word. Many European countries have changed their existing procedural codes and enacted new laws to make class action litigation possible. The new Finnish class action law differs from the mainstream in fundamentally limiting its scope of application. Although the law is titled as being a general law on class actions, it only applies to consumer cases where the government-funded Consumer Ombudsman is acting as the lead counsel. This was not the case in the beginning. Years ago, the first law proposals had much broader scope of application but as the lobbying between potential defendants (the industry) and plaintiffs (consumer agencies etc.) became polarized, it became evident that there can be either a major compromise or no law at all. This article analyses the Finnish lawmaking process from comparative and economic policy viewpoints. First, the article discusses how did the Finnish legislative process end up with a certain outcome. It is argue that neither well-founded economic nor empirical arguments had any relevant role. Instead, partisan claims on class action cases in the United States and their potential implications to companies were used as a strong argument to restrict the laws scope of application. The official preparatory documents did not present any study on experiences from the United States. There was non-partisan empirical evidence of the use of class actions only from Sweden. Second, this article compares the claims presented in the Finnish lawmaking process to studies and legislative work made in other countries. The article concludes that the most of the claims were based on partisan opinions, not on well-founded studies. The examples of other Nordic countries however show that there is nothing uncommon in implementing class actions in a Northern European legal system. Misuse of class actions is not likely due to e.g. fundamental differences in the substance of accident law and the rules regarding the indemnification of legal costs in litigation. Third, this article argues that the main reason why the Finnish class action law failed was the dynamics of the legislative process. The idea of reaching a consensus in preparatory work before a law is submitted to the parliament means that if certain interest groups are able to form a strong opposition, the law may never enter the parliament no matter of the substantial arguments. The result is that an unknown number of cases are not litigated at all in Finland because the scope of application of the law is restricted. Regulatory authorities have no resources to provide as extensive preventive threat as would a complementary private mechanism.