Distance Learning - All I Want is a Law Degree

Few industries are as slow to adopt new methods and technologies as the legal profession. Certainly, the stability provided by relying on tried and true technology is valuable in an industry that is largely risk averse, but this bias against new technologies sometimes seems arbitrary. This is why current activity in favor of law degrees through distance learning is encouraging.

Until recently, the American Bar Association's Standards for Approval of Law Schools prohibited accredited law schools from granting credit for correspondence courses except in very narrow circumstances. As an example, see the ABA's old position on distance learning, which included a statement that "a law school shall not grant credit for study by correspondence." The limitation was so severe that law students who needed to take a significant portion of their course work by correspondence were effectively barred from practicing law in the vast majority of states. The new rules permit accredited law schools to count substantial amounts of distance learning credits towards the minimum coursework requirement subject to meaningful oversight by the school, and further subject to additional qualifications described in the Standards. The rule change means that instead of a bias against distance learning, the ABA now recognizes distance learning as a legitimate means of obtaining a law degree when the shortcomings of education without in person interactions are addressed.

Only a handful of states permit graduates of all-correspondence law schools to take the bar exam, which is why I was surprised by the news of a recent court case in Massachusetts (among the states with the strictest bar admission rules). (Note that California is one of the states that permits graduates of non-accredited law schools to take the bar exam, subject to other requirements that do not apply to graduates of accredited law schools. Also, several states already have alternative review processes on an as-requested case-by-case basis even though they don't permit graduates of non-accredited schools to automatically take the bar exam.) The circumstances surrounding the case were covered in a recent edition of the California Bar Journal. A recent graduate of Los Angeles based Concord Law School, the first all-online law school, wanted to practice law in Massachusetts even though he knew the state did not permit graduates of distance learning schools from taking the bar exam. In spite of the rule, the student petitioned the state bar and initiated a court case seeking the right to take the exam. The law school graduate was such an effective advocate in representing himself through the briefs he filed and his oral arguments in the court case that the Massachusetts Supreme Court ruled he could take the exam.

The case indicates a shift in the legal profession's bias against distance learning to an acceptance that, under the right circumstances, distance learning can produce strong candidates for attorneys. In practical effect, while the case does not mean that distance learning will automatically be accepted as a substitute for traditional law school attendance, it does mean that more states will likely add alternative review criteria for distance learning candidates when determining whether they should be permitted to take the bar exam.

The trend towards distance learning in legal education is part of a larger trend in support of distance learning for virtually all professions. Among the primary objections to distance learning is the lack of personal interaction and the environment of school and students is seen as critical to making good lawyers. This type of criticism is not typically cited as a weakness of distance learning in other professions. It's true that many attorneys will go into areas of the profession that require excellent client interaction skills, but these types of skills are not necessarily learned in the classroom environment. In fact, one could argue that the distance learning model more closely matches the way most attorneys perform their jobs on a day-to-day basis. Consider my experience as in-house counsel at MySQL, where over 90% of the company's employees worked outside the Silicon Valley office where I worked. The bulk of my client interactions were more often through e-mail, telephone and occasional travel rather than direct personal interaction.

Distance learning also serves another important purpose. It allows those with valuable real-life experience in non-legal professions and endeavors to pursue a legal career. Take the case of a lieutenant colonol in the US Army who is taking law school courses while deployed in Afghanistan, which was described in a recent edition of the California Bar Journal. These types of students typically have day jobs and families and would not be able to pursue a law degree were it not for distance learning, yet the breadth and depth of their experiences is exactly what will allow them to make immediate valuable contributions to the legal profession ... certainly more quickly than I could have as a law graduate who attended law school immediately after graduating from college.

No doubt, the ability to have quality personal interaction skills is critical to success in virtually all professions, but these skills can be learned outside the classroom environment and they are exercised in different ways by each individual. As a result, it does not seem fair that distance learning law students should be at a significant disadvantage. This is one case where it appears that the legal profession is taking the right steps to move into the 21st century.

No Preliminary Injunction in Jacobsen Case

Those who follow the Jacobsen v. Katzer case know that it likely will have a significant on how US courts view open source licenses and what legal remedies are available when they are violated. The latest twist in the case, as reported on the Madisonian blog, is the decision of the US District Court for the Northern District of California to deny Jacobsen's request for a preliminary injunction. On its face, this decision might seem like a setback in the ability of open source licensors to ensure the terms and principles of the open source licenses are enforcable. However, my view is that the facts of the Jacobsen case are unique enough that this ruling will not significantly interfere with the efforts of other open source licensors to obtain injunctions.

For an excellent summary of the history of the Jacobsen case, including all the legal developments up to and including the Federal Circuit's ruling in August, please see Larry Rosen's excellent article "Bad Facts Make Good Law: The Jacobsen Case and Open Source". The particular fact of importance here is that Jacobsen requested a preliminary injunction based on Katzer's failure to comply with the terms of the Artistic License requiring the licensee to "duplicate all of the original copyright notices and associated disclaimers". Compare this to the Free Software Foundation's claims against Cisco, which include allegations that Cisco failed to comply with the GPL and LGPL obligations to distribute source code to modifications made by a licensee.

This distinction important because the types of harm likely to result from failure to distrbute source code are easier to identify and articulate than the types of harm from failure to reproduce copyright notices. Under the 2008 US Supreme Court opinion in Winter v. Natural Resources Defense Council, the Court elaborated on the well-accepted requirements for granting a preliminary injunction with a particular emphasis on the point that plaintiffs must show more than a mere possibility of harm, but must actually back up the claims of harm with meaningful evidence. Here is criteria cited by the Court for all US courts to use in deciding whether a preliminary injunction request should be granted:

"A plaintiff seeking a preliminary injunction must establish (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest." (I added the parenthetical numbers for easier identification in this blog post. The Court cites multiple cases on this point going back to 1982 including another 2008 opinion.)

Elements (2) and (4) are the most important for our purposes. With respect to element (2), meaningful harm from a failure to maintain proper copyright notices in publicly available software seems difficult to prove, and proving that the harm is irreparable is even more difficult. At worst, a recipient of the licensed software would receive the proper copyright notice after the software is distributed, but this would not result in any change in use or non-use of the software. By contrast, a failure to distribute source code could change the way a recipient uses the software, which is central to the purpose of the open source license.

Element (4) is particularly interesting as applied to open source software which, by its very nature, is intended to benefit the public. The public does not necessarily benefit from knowing whether a particular copyright notice is accurate, but the public cannot take full advantage of the software made available under an open source license unless it receives the actual source code.

Setting aside variations in application of the law across jurisdictions, a plaintiff is a more likely to be able to present evidence adequate to support a preliminary injunction when a case revolves around availability of source code under an open source license as compared to a claim of failure to adequately comply with copyright notice requirements. In my opinion, cases like the FSF's claims against Cisco are the types of cases we are most likely to see in enforcement of open source license terms. As a result, plaintiffs should not let the Jacobsen case discourage them from requesting preliminary injuctions, particularly when the plaintiff's claims are based on failure to distribute source code.

FSF Motives in the Cisco Case

One of the comments I received to a recent post questions the motives of the Free Software Foundation ("FSF") in its complaint against Cisco, and whether the FSF is overreaching in the remedies it proposes. Specifically, the comments reference The Software Lawyer blog posting entitled Free Software Foundation Sues Cisco: Some Criticism. To summarize, the blog post questions whether the FSF would accept GPL compliance as a solution to the disagreement with Cisco and goes further to say that "[the FSF] wants to push Cisco around and it wants money."

I think these views are overly cynical of the FSF's motives. I also disagree that endorsing the FSF's actions results in granting a licensor power to choose substitute license terms. Below, I discuss my reasoning for these conclusions in more detail in hopes of illuminating the issues in the broader discussion around the meaning of license compliance and the role of license enforcement in the open source world. Please also note that I am not concluding that the FSF will be successful in its litigation either through a judgement on the merits of the case or a favorable settlement. Instead, my intent is to illustrate that the FSF's actions appear reasonable.

[Note: I have no knowledge of the FSF's or Cisco's thoughts, reasoning or internal discussions on these matters - all of my comments are based on the complaint and public statements by these entities and commentators.)]

FSF Motives

The views presented in the comments and blog post suggest that the FSF motives are pointed more towards self interest than support of the goals of the free software movement. To the contrary, the FSF's actions indicate that it is legitimately trying to enforce the principles of free software by ensuring that Cisco honors the freedom of its users to have access to source code. No doubt the FSF would like to make an example out of Cisco and would like to see onerous penalties (including monetary damages) imposed for failure to comply as a means of discouraging other potential infringers, but this is consistent with enforcing the principles of software freedom.

The commentary also cites the FSF's requirement that Cisco appoint an open source officer as a potential remedy outside the scope of the complaint. While this might seem unusual, it is consistent with a common litigation strategy in which plaintiffs ask for more than they might be entitled to from a court. This tactic helps push settlement discussions and alternatives to litigation remedies. In fact, FSF is not the first to use this approach. Similar terms have been agreed upon in the string of Busybox cases, which were also litigated by the Software Freedom Law Center. These actions indicate a good litigation strategy rather than impure motives or overreaching.

Motives of a Large Company as an Alleged Infringer

The commentary also assumes that large companies in Cisco's position, would necessarily do their best to comply with license terms as fast as possible, and that such a company would not continue shipping an allegedly infringing product unless absolutely certain of ability to comply. In turn, the commentary suggests that this indicates the FSF has unreasonably deemed Cisco's proposed compliance activities as inadequate. This conclusion is not supported in my view.

It is fair to assume that a company in Cisco's position would perform a risk analysis based on the FSF's stated concerns and could reasonably decide to respond by engaging FSF directly. This strategy would permit the company to work through compliance options over an extended time period. From a purely utilitarian standpoint, this approach seems more favorable than immediately pulling a product suspected of GPL infringement without first consulting the FSF, which would result in further difficulties. No doubt in the multiple years of discussion between Cisco and the FSF, both parties understood that some sort of compliance actions were appropriate, but they had differing interpretations on the types of remedies and time frames for resolution. As a result, it appears that the FSF likely has a reasonable basis for its conclusion that Cisco was not acting fast enough and the use of litigation was a way to stress the importance of compliance is justified.

Remaking the Rules

The claims that FSF's proposed remedies are "remaking the rules" and that it "gets to choose the terms of reinstatement" also are not warranted. The GPL and LGPL licenses immediately terminate once a licensee violates their conditions. Once termination occurs, a licensor can choose to enforce an infringement claim and use the threat of damages awarded by a court as leverage to negotiate a settlement that includes more than monetary damages. This is the approach the FSF is taking with Cisco and it seems consistent with good litigation strategy.

In fact, the FSF has also chosen to work with Cisco for several years to obtain compliance without litigation, which further indicates the reasonableness of its actions. The FSF's proposed remedies are separate and distinct from the rights available to Cisco and all other potential licensee under the GPL. The FSF could not remake the rules of litigation remedies even it wanted and it doesn't seem fair to conclude that the FSF is trying to remake the rules or make up substitute license terms.

In short, whether the FSF will be successful in reaching a favorable judgment on the matters in the complaint or obtaining a favorable settlement with Cisco remains to be seen. Even so, the FSF's motives and actions seem reasonable in the context of the allegations in the complaint.