As a law student doing my thesis on open-source licensing (PDF), it was nearly impossible to find any substantive legal papers on the topic. In fact, the only one I can remember is Ira Heffan's excellent "Copyleft: Licensing Collaborative Works in the Digital Age" from Stanford Law Review in 1997.
It's about time.
The journal is peer-reviewed by an editorial committee made up of members of the European Legal Network which, despite its name, actually includes legal experts from all over the globe. A few of the better-known names include Andrew Katz, Amanda Brock (Canonical), Mark Webbink (former general counsel at Red Hat), and Lawrence Rosen (noted author and author of the Open Source License). The journal will be released biannually.
As companies like Qualcomm seek lawyers with deep open-source expertise, journals like the IFOSSLR are critical to elevating the depth and breadth of open-source analysis, moving it well beyond the intellectual battleground of opposing ideologues.
The first issue is now available online. As Glyn Moody notes, despite the legal nature of the journal, its contents are genuinely interesting--fascinating at times--and relevant to anyone in the business or development of open-source software.
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Microsoft and TomTom have settled their patent dispute, including claims related to the FAT file system and Linux. But the rest of the open-source world, which could be affected, isn't ready to lie down and accept Linux's possibly besmirched reputation.
Red Hat, for its part, declares that "without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid." And Pamela Jones of Groklaw, a highly influential open-source legal blog, deprecates Microsoft's claims ("What? You thought Microsoft's spin on things was always gospel?"), citing the Software Freedom Law Center's commitment to sticking up for Linux, even if TomTom quickly caved.
The settlement neither implies that Microsoft patents are valid nor that TomTom's products were or are infringing...The FAT file system patents on which Microsoft sued are now, and have always been, invalid patents, in our professional opinion.
SFLC remains committed to protecting the interests of our clients and the community. We will act forcefully to protect all users and developers of free software against further intimidation or interference from these patents.
SFLC, working with the Open Invention Network and the Linux Foundation, is pleased to participate in a coordinated, carefully graduated response on behalf of all the community's members to ongoing anticompetitive Microsoft conduct. We believe in strength through unity, and we think our community's unity in the face of these threats has helped to bring about Microsoft's quick settlement on all issues with TomTom.
This is good news because I admit I read the settlement as an implication that TomTom caved. As ZDNet's Larry Dignan suggests, however, "the settlement doesn't seem to answer a lot." For Microsoft, this may well be a good thing: FUD (fear, uncertainty, and doubt) is as good as a court judgment against Linux.
This was Microsoft's tactic in its Novell patent deal. Every press release about interoperability included verbiage about patents and Linux. I talked with Novell's press team repeatedly during this time and was always told, "Microsoft insisted on including that language. We wanted to focus on interoperability, which is what customers actually care about."
Microsoft may or may not have been trying to sully Linux's reputation with the TomTom lawsuit, and this settlement doesn't clarify things at all. Fortunately, the SFLC is on the case. It's a more than ample counterbalance to Microsoft's worst intentions.
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For years people have suggested that open-source adoption would go even faster if only open-source licenses like the GNU General Public License (GPL) were easier to understand. My personal belief is that "It's so hard to understand!" tends to be an euphemism for "I really want to pilfer this open-source software but its terms don't let me!" After all, the terms of the GPL have been explained repeatedly, including by the Free Software Foundation itself, which authored the GPL.
Regardless, the Software Freedom Law Center is now making it easy to understand the GPL and related licenses with a guide (available online) that walks through effective compliance:
Unlike highly permissive FOSS licenses (such as the ISC license), which typically only require preservation of copyright notices, the GPL places a number of important requirements upon licensees. These requirements are carefully designed to uphold certain values and standards of the software freedom community. While the GPL's requirements may appear initially counter-intuitive to those more familiar with proprietary software licenses, by comparison its terms are in fact clear and favorable to licensees. The terms of the GPL actually simplify compliance when violations occur.
GPL violations are often caused or compounded by a failure to adopt sound practices for the incorporation of GPL'd components into a company's internal development environment. In this section, we introduce some best practices for software tool selection, integration and distribution, inspired by and congruent with FOSS methodologies.
What follows, then, is a highly practical walk-through of how to use GPL software, when to release derivative works, etc. Any company that uses GPL software - which includes roughly 99.999 percent of IT departments due to the rise of Linux - should get a copy of this compliance guide and study it. Ignorance is no longer an excuse for a lack of compliance with open-source license compliance.
Van Lindberg's Intellectual Property and Open Source
(Credit: O'Reilly Media)A few months back, I helped to review and edit a book for Van Lindberg and O'Reilly Media called Intellectual Property and Open Source: A Practical Guide to Protecting Code. Over the past 10 years, I've read every open-source legal book written. Lindberg's book is by far the best.
If you've wanted a book that helps to explain complex open-source legal questions in a readable, approachable style, this is it. If you've wanted to know how to write an open-source contract, or whether patents were going to be the undoing of your project, here's your book.
Lindberg is an exceptional writer. Take this opening to his chapter on the GPL:
Almost all of the difficult questions that open source lawyers worry about revolve around the GPL.
The GPL has a lot of things going for it: it is the single most common open source software license; it has brought together a large and vibrant community of developers; it is a brilliant hack.
At the same time, there is no single license that is more mistrusted or reviled than the GPL. Many open source developers refuse to accept or release code under the GPL because it imposes restrictions at the same time as it grants freedoms. I know from personal experience that the GPL gives most lawyers fits.
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It's happening again. Another bloated, proprietary industry is giving way to an "open-source" alternative.
The industry? Legal research.
With an increasing number of legal opinions online, rather than locked behind LexisNexis or Westlaw, Fastcase was bound to arise. Fastcase is an up-and-coming competitor to these locked-down, expensive services, offering access to a large legal database at a fraction of the cost. Fastcase still needs to scan and index all the legal opinions still held in books, but this is something that an offshore team can do at a low price.
Fastcase won't unseat Lexis-Nexis or Westlaw anytime soon, just as open-source software alternatives aren't putting anyone out of business today. But the writing is on the wall, according to a June 30 Forbes article released online this week:
Bigger law firms will continue to use Westlaw and Lexis for a long time. The established vendors have the most current and comprehensive databases, and, says Thomas Fleming, lawyers know them best....[Fleming's] firm uses Fastcase for quick searches and to cross-check citations, but he says it has a "phenomenal niche" serving smaller firms that can't afford Wexis.
Niche today, market dominance tomorrow. That's the way the open-source song goes...
Argentina's congress is actively considering a bill that would require all government offices to use open-source software. It's partly a cost-saving move, and partly a way to bring the Argentine government into compliance with its software licensing:
The measure is sponsored by representative Marcelo Dragán as part of a national campaign against rampant software piracy in the South American country....
[T]he government itself is one of the worst copyright violators. The [Software Legal trade] association has pending lawsuits against several bureaucratic agencies, including the Secretariat of Tourism, the Federal Radio Committee and the Social Security Administration.
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(Credit:
Matt Asay)
Tonight Brad Smith, general counsel for Microsoft, delivered the "footnote" address at the Open Source Business Conference 2008. I asked Brad to speak because I figured it was the shortest path to getting clarity from Microsoft vis-a-vis open source and the nettlesome legal issues that have plagued Microsoft's relationship with open source.
Brad spoke for 30 minutes, and then participated in a follow-up panel with an A-list group from the open-source community, including Mark Shuttleworth (Ubuntu), James Bottomley (CTO, SteelEye and Linux kernel maintainer), Andrew Updegrove (standards lawyer extraordinaire), and Stephen O'Grady (Redmonk co-founder). The audience then had the opportunity to ask him questions for another 30 minutes. It was no doubt a grueling "opportunity" for Brad, and he represented himself and Microsoft well. (See also Charles Cooper's report.)
But it didn't result in any great "Ah ha!" moment, unfortunately. There are serious chasms between Microsoft's position(s) and the open-source community's position(s). It's very possible that both sides will have to compromise. What would compromise entail?
Brad talked around this in his opening remarks:
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(Credit:
DLA Piper)
This is why I think so highly of Mark Radcliffe. He just sent me his title/abstract for the upcoming Open Source Business Conference (OSBC) (March 25-26 in San Francisco), and it reveals an attorney who understands the force the law can play in advancing business strategy, not restraining it.
Implementing Your Open Source Business Strategy through Your Legal Strategy
Open source companies are adopting a variety of business strategies from dual licensing to hybrid proprietary/open source distributions and need to ensure that their legal strategy is aligned with their business strategy. This presentation will discuss the elements of a legal strategy and how they can be most effectively coordinated with the company's business strategy. It will also discuss mistakes that company's have made and how to avoid them.
I can't wait for the session. Far too many open-source companies misunderstand open source. They fail to tap into the disruptive power that open source can provide, which generally requires that they use licensing as a weapon rather than treat it as an afterthought.
A must attend session at the industry's top open-source conference.
Few can compete with Mark Radcliffe for the distinction of savviest, canniest open-source legal mind. He advises half the known open-source business landscape and sits at the crossroads of copyright and copyleft. Very, very smart and a great asset to anyone fortunate enough to retain him.
It's therefore highly worthwhile to read through Mark's survey of the top ten open-source legal issues in 2007. Here's one, in particular, that caught my eye:
First Patent Infringement Lawsuit by Patent Trolls against FOSS [free and open source] Vendors. IP Innovation LLC (and Technology Licensing Corporation) filed suit against Red Hat and Novell in what may be the first volley in a patent war against a FOSS vendor. Acacia is a well known patent troll which has been buying patents for some time and works through multiple subsidiaries. The FOSS industry provides a tempting target because of its rapid growth. These suits could slow the expansion of FOSS because many potential licensees express concern about potential liability for infringement of third party rights by FOSS.
Indeed. 2007 was the year in which open source clearly came into its own, as demonstrated by the fact that so many legal precedents were set vis-a-vis open source. Stroll over to Mark's blog for more.
I watched Argentinia smack Chile down tonight (2-0), and found the experience of attending the match fascinating, and a little scary. I've been to a lot of games over in England, where things can get a bit dicey, but this was the first time that I actually feared for my safety.
Why? Because the crowd didn't seem to abide by any particular laws. I watched this man get shouted out of the stadium. Why? Because he bought a ticket for himself and his wife and tried to sit in his seats. When he asked the squatters who occupied his seats to move, he was jeered and booed until he gave up his seats.
In fact, no one (including us, since when we arrived people were in our seats) seemed to sit in their assigned seats. I was scared to use the restroom because I figured doing so would be tantamount to surrendering my seats. Other fans had it worse: they were separated from the field by razor wire which was intended to keep them from attacking visiting fans. It felt a bit like the Wild West....
I think sometimes Microsoft and the proprietary world think that open-source developers think like the seat-squatters in Argentina. I suspect that this is one reason that Ballmer can make claims about patent infringement with a straight face, as if open-source developers flaunt IP laws casually. But he, and those who think like him, are wrong.
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