For All the Law Students Interested In Open Source

I recently met several law students who are interested in intellectual property law and the open source business. I was impressed with their awareness of the impact of open source on the technology industry, and happy to see how interested they were in learning more. In response to their questions on how to develop the skills needed to focus on open source, I have advised students that no pre-defined path of classes or experience leads to expertise, but there are several activities to emphasize as they progress in their journey towards finding their niche in the legal community.

A. First and foremost, all students interested in open source must have a solid foundation in intellectual property law. Open source business models arose as novel ways to utilize traditional proprietary rights. For example, the GNU General Public License ("GPL"), the most well known and widely used open source license, relies on a liberal grant of the rights held exclusively by a copyright owner to ensure that software users have a maximum amount of freedom to use open source software. A thorough understanding of copyright law is critical to understanding the impact of "copyleft" licensing.

B. Of equal importance to students is understanding contract law and having strong contract drafting and interpretation skills. Using the GPL as an example again, the copyleft effect only works because the license is drafted in such a way that passing along the rights granted under the license to subsequent licensees is a condition of the license grant. (See Mark Radcliffe's commentary on the Jacobsen v. Katzer case, which hinged on the "conditional license" issue.) In other words, the contract is written to enforce the viral nature of copyleft licensing. The conditional nature of most open source licenses means that contract interpretation skills are critical. A legal interpretation of a particular open source license must take into account the contractual conditions and obligations along with the broader context in which the licensed components are used.

C. As in any endeavor requiring legal analysis, a lawyer must always look beyond the relatively narrow context of "the law" to recognize and understand the bigger picture and real world consequences of legal conclusions. This is particularly true with open source businesses because the goal of businesses to generate revenue contradicts the act of giving something away for free does and open source technology must be used to generate revenue in other ways. In addition, open source businesses are heavily tied into their corresponding development communities and open source solution partner networks. The choice of an open source license, or a division of features between open and closed source versions of a product, and other such decisions open source companies must make have significant impacts on the viability of an open source business.

D. A more practical point for law students is to look for internships and clerkship opportunities with companies and law firms known for open source expertise. My employer, Sun Microsystems, for example, is a leader in the open source community and typically offers internships to several law students each year. These students get to see the details behind the hard decisions that business units make in guiding their open source activities. They also get to research details of the law as applied to open source issues, which gives them a level of expertise in a particular subject matter that can follow them the rest of their career.

E. Attend conferences and talks about open source law, as well as trade shows featuring open source businesses. The open source business has become big enough that a multitude of conferences and trade shows are presented virtually every week across the country and around the world. Events like OSCON and the OSBC are fixtures in the open source world, as are conferences like the MySQL User Conference and SugarCon for SugarCRM, to name just a few. Look at the upcoming Continuing Legal Education calendars to see how many seminars are devoted to open source or spend at least an hour on open source. (Shameless plug: I will be presenting a talk on open source business models with Joyce Chow from Apple Inc. at a December 10 PLI conference in San Francisco.) These are all great opportunities to learn how open source works in the real world, and students sometimes get free or reduced fee admission.

F. As a final note of encouragement, do not get discouraged by a lack of technical background (such as engineering or computer science) because this does not need to be a barrier to understanding open source technology and businesses. My college degree was in government and economics with no formal training on how software is written or even the difference between source and object code. While it is true that many law students start with a technical background, it is common for a lawyer in the tech industry to not have a deep technical background. (See the blog of one of my colleagues at Sun who did a survey of college majors of those within the Sun legal group... the results are very interesting.)

Innovation in Open Source Licensing

The constant drive for innovation is one of the distinguishing factors of the technology industry. Even the most significant technological inventions can become virtually obsolete in the span of only a few years. Until recently, the longevity of the most familiar open source licenses stood in stark contrast to the the rapid pace of change in the technologies licensed under their terms. But is the pace of change growing for open source licensing too?

Evidence of the longevity of open source licenses is easy to find. The Mozilla Public License 1.1 was created in the late 1990s. It has not only survived in the same form to the present day, but it remains one of the most popular and well respected licenses. The Apache license, originally released in 2000, has been consistently used in the same form since it was updated to version 2 in 2004. Until the recent release of version 3 of the GNU General Public License, version 2 survived as the most popular and longest lasting open source license of all time, remaining unchanged for more than 15 years. The stability of these licenses over time spans of more than 10 years is impressive when one considers that most proprietary software vendors revise their end user license agreements every one or two years with each new release.

On the other hand, recent developments might be an indication of innovation in open source licensing. The release of version 3 of the GPL in 2007 indicates that the open source marketplace needed a license that performed essentially the same functions as version 2, but refined the application of those functions to the new realities of the software industry, such as the rise in importance of patents, and the awareness that use of GPL-licensed code is prevalent in embedded hardware components. The Affero version of GPL (treating network access to an application as a form of distribution that triggers application of the GPL's source code distribution obligations), a seldom used option for GPL users, was originally released in 2002, but it too has been revised in connection with the release of GPLv3. (Note: The 2006 release of the Honest Public License by Funambol CEO Fabrizio Capobianco directly equated "network communication" with "distribution", whereas the Affero GPL v1 itself used different terms but probably had the same effect.)

Other, more significant types of license innovations are occurring. Consider the Cilk Arts Public License, a newly created license made pubic in November 2008 by a company named Cilk Arts, which provides multiprocessor application platform performance optimization. This license is intended to address the "loophole" in the GPL concerning the fact that users of GPL-licensed software can modify and use the software internally without any obligation to release modifications to the public. This concept truly is an innovation when you consider that the right to use software internally without obligation is one of the inherent freedoms the Free Software Foundation tries to protect. Whether it will be adopted to any significant degree by the open source community remains to be seen.

It is also important to point out that not all of the recently released licenses are necessarily innovative. Consider approval of the Microsoft Public License (Ms-PL) and Microsoft Reciprocal License (Ms-RL) in 2007 by the Open Source Initiative as meeting the OSI's definition of open source (though the licenses have been in use since 2005). These licenses are not innovative in that they operate much like the new BSD, Apache 2.0, and MPL. In fact, these licenses turned out to be quite controversial, not because they contradicted the norms of open source licensing, but because people feared Microsoft was attempting to gain an unfair advantage by having its own version of open source licenses while many other comparable, popular licenses already existed.

In recent years we have seen new open source licenses released to, among other things, address changes in the software industry (GPLv3), address perceived deficiencies in existing open source licenses (Cilk Arts Public License), and to spin existing open source license templates to address a particular company's business needs (Ms-PL and Ms-RL). In my view, of the licenses discussed above, only the Cilk Arts Public License represents true innovation in the field of licensing. The others are simply incremental improvements applying the same license features to new situations. Maybe there are other "out of the box" attempts at creating a new license out there and I would love to hear about them (please send your comments). At the same time, however, we should all consider whether we truly need license innovation and at what point a company-specific twist on open source licensing transforms from addressing a legitimate business need, to being nothing more than a vanity license.