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Thursday, May 04, 2006

Open Source Software at iTechLaw, Part I

I'm here at iTechLaw, speaking later today on blogs+ip, sitting in now on the Open Source Software panel, and hey! There's Professor Nimmer who spoke a couple of weeks ago at the Blog Law and Blogging for Lawyers conferece. Moderating is Stephen Davidson, and rounding out the panel are Steve Mutkoski (Senior Attorney, IP & licensing, Microsoft), Chris Nadan (Director, Software Legal/Associate GC, Sun), Sherman Chu (Director, Technology Licensing, Cisco), and Todd Nelson (Vice President of Legal and General Counsel for Fortinet). I'm not going to attempt to blog this in any verbatim way but instead am posting highlights. (Some anecdotal ambient observations: good wifi; no powerstrips, have to negotiate for wall jacks; hardly any Macs, low laptop:attendee ratio overall; of the roughly 80 people in this room, maybe 5 are women. Lotsa suits; the panelists are among the most dressed down people in the room.)

The group as a whole discussed general open source licensing considerations to kick things off, mostly focusing on how many different kinds of "open" licenses are now out there. There are at least 400 varieties, and it's an instant political misstep to call something "open source" that is open in many ways but does not allow unlimited modification of the work.

Professor Nimmer spoke next about whether and when licenses become contracts. Points out that licenses are just pieces of paper (or other forms of text...). A contract doesn't form until it becomes a bilateral arrangement with accompanying obligations. Whether a license becomes a contract will have much to do with whether it will be enforceable and durable. Context becomes key in determining whether a license forms a contract. If it's not a contract, is it effective? Just putting something in a file online doesn't control absolutely, other conduct will be relevant too. [This is not something Professor Nimmer is addressing, but consider that last comment in the context of the discussion over implied licenses and RSS.] The point is just to recognize this is an issue; the question of enforceability cannot be answered in general terms, only in specific cases. Important point: a license cannot abridge your rights over other circumstances (unless it's a contract), it can only expand them. Interesting point: open source software license case law is incredibly sparse; there are some 35 reported instances of one being enforced, and then only the GPL. Professor Nimmer observes that's probably a function of the fact that most people applying the over 400 different varieties of licenses to their work are more concerned with giving away and collaboration than with enforcement.

Next up was Microsoft's Steve Mutkoski. Open source diligence is an extension of traditional IP diligence related to company acquisitions, but complicated by the unique restrictions that open source licenses routinely include: noncommercial use, share alike, etc. Microsoft has been tripped up by this enough it now has a four step approach when it's considering an acquisition: it requests disclosure (tell us what you're using), it scans the code (let our consultants go over your source code), it analyzes the results (tell us why this particular module or file is present), and , if there's an issue or a potential one, request remediation (can this potential problem file be removed or replaced?). Steve's experience is all this is still very new and unfamiliar to most people involved in the process.

There's a break now, I'll pick this up when we return.

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