Expanding Open Source Enforcement Strategies

What comes to mind when you hear "open source enforcement"? Probably the names "Busybox" and "Software Freedom Law Center". These organizations are good examples of the "cease and desist" style of enforcement in the open source context. But an enforcement strategy should go beyond "cease and desist" to also include other considerations such as alignment with business strategy, product development and business model considerations, and promotion of open source education.

A. Aligning Enforcement Strategy With Business Strategy

Enforcing intellectual property rights always sounds like a good idea. Unfortunately, the typical cease and desist and litigation strategy has significant pitfalls including requiring vast resources and risking the loss of goodwill with customers, partners and the community. Aligning enforcement strategy with business strategy clarifies which enforcement activities will have maximum impact while minimizing risks. The question is, how do you align these strategies?

Looking at the size and goals of a company is one place to start. Many open source vendors today are relatively small and privately held. These companies prioritize rapid growth, building adoption and proliferating products over converting customers to cash. These companies could reasonably choose to avoid tricky enforcement issues under the theory that any customer, paying or free, in or out of compliance with a license, is one more customer that can be converted to cash sometime in the future.

By contrast, other open source companies are either publicly held, or privately held and on the verge of generating a return on investment. Accumulating customers is not the focus of these companies, but the traditional cease and desist and litigation approaches to enforcement of unauthorized copies could be seen as a quick way to make money for investors.

B. Building Enforcement Success Into Your Product

Enforcement begins with the choices you make as to features to include, the license that applies and the business model. For example, DRM (digital rights management) is a dirty word in the open source community, but it can be a valuable tool in enforcement. Companies with a subscription model can use DRM tools, such as a digital fingerprint, to track subscription periods and to confirm whether particular installations are eligible for support and services.

Licenses make a difference in enforcement too. The popularity of GPLv2 is due in large part to its viral terms, which make the mere threat of enforcement enough to drive compliance, particularly with traditional proprietary software companies. GPLv3 offers an even more intriguing range of enforcement options because it allows licensors to easily apply their own conditions for enforcement opportunities.

A company's chosen open source business model makes a difference too. As mentioned above, companies with a subscription model often worry about enforcement because they want to ensure the services and tools they provide are only available to licensed servers. By contrast, companies with an open core model might not be as concerned with unauthorized availability of the software because they make their money by enabling additional features or functionality.

C. Safety in Numbers

One of the most successful enforcement strategies adopted by proprietary software companies could be a model for open source enforcement strategies too. Many of the leading software companies are members of the Business Software Alliance (BSA), an organization that not only organizes anti-piracy and license compliance programs, but also promotes public policy initiatives including intellectual property and development policies. Possibly the greatest advantage of the BSA is that it allows licensors to pursue enforcement strategies collectively, thus allowing enforcement resources to be pooled while avoiding the risk of individual members losing goodwill. The uniformity in approach also creates predictability in license rights and when enforcement is appropriate.

Open source companies could come together to form their own Open Source Software Alliance (OSSA) and realize the same benefits. Ideally, the proposed OSSA could also partner with the Free Software Foundation to add credibility to the positions it takes and bridge the gap between the open source and free software movements. Unfortunately, the gap between open source and free software is likely too big for the FSF to endorse an organization like the OSSA.

These are just a handful of ideas that I hope will help open source companies break out of the "cease and desist" box to realize that enforcement means so much more than adversarial confrontations and litigation.

Word Play

Judge Learned Hand, among the most celebrated American jurists, once wrote, "The language of law must not be foreign to the ears of those who are to obey it." Yet, law is very complex. Lawyers are in a never ending quest to express complex thoughts in as simple a way as possible. Words are a lawyer's tools of the trade. Some of the commonly used words are descriptive, some are fanciful, some are latin, and some are beyond explanation.

Here is a short selection of legal terms I have always found interesting -- not necessarily because of their legal import, but sometimes just because I like the way they sound. Also, please take the survey on the right and tell me which of the words on my list is your favorite, and leave a comment if you have others you would like to share.

Caveat Emptor
Meaning: Buyer beware.
Interest Factor: This deserves to be on the list if for no other reason than it played in prominent role in a Brady Bunch episode, no doubt inspiring an entire generation of children to choose a career in law. Aside from the pop culture reference, it is good advice.

Clawback
Meaning: A provision in a financial arrangement that enables the recovery of prior payments. (Clawback is more appropriately categorized as a financial term, but it is directly related to legal documents.)
Interest Factor: Much of the discussion on our current financial crisis revolves around clawbacks on executive compensation, particularly for executives from failed companies or companies receiving government subsidies.

Cramdown
Meaning: A bankruptcy term describing a situation in which a court imposes an involuntary reorganization plan at the expense of some classes of creditors.
Interest Factor: This term immediately caught my attention in bankruptcy class in law school. Not only is it perfectly descriptive of what happens in bankruptcy, I also always though it would make a great name for a rock band.

Disparate Impact
Meaning: A theory of liability in employment discrimination cases that relies on a showing that a protected class of people is wrongly treated differently even though employment policies are applied equally.
Interest Factor: News reports on Judge Sonia Sotomayor, President Obama's Supreme Court nominee, frequently include references to her role in a ruling by a panel of Second Circuit Judges in Ricci v. DeStefano, a case concerning whether a test for hiring firefighters in New Haven, Connecticut had a disparate impact on minorities.

Expressio unius est exclusio alterius
Meaning: The expression of one thing is the exclusion of another.
Interest Factor: This latin phrase is one of the foundational elements of logical thought and has applications well beyond the law. When interpreting contracts, it stands for the important principle that parties agreeing to include a list of items are presumed to have intended to include only those items, and other items must not be inferred. Applying this in a broader context, the more detail one provides, the more exclusive the description. Simple, powerful and true.

Jus Cogens
Meaning: A fundamental principle of international law accepted as a norm. Genocide and slavery are common examples.
Interest Factor: I will always remember the distinctive German accent in which I first heard this term spoken ("juice kookens") . A guest German law lecturer introduced this legal concept to our international law class in law school. While this term is valuable in its recognition that certain principles are almost universally recognized as boundaries of conduct, care should be taken to ensure the term is not mistakenly applied so broadly that it interfere with legitimate discussion and dissent.

Res Ipsa Loquitur
Meaning: A thing that speaks for itself, often abbreviated as "RIL".
Interest Factor: Along with "expressio unius...," this is one of the classic latin terms used in legal writing. The term is most often seen in the context of tort law when the cause of an injury is apparent on its face, but direct evidence is difficult to find.

How does this tie into open source? It doesn't ... at least not directly. However, it is interesting to note that many of the most popular open source licenses avoid the use of traditional legal terms and virtually all avoid latin terms. This is likely due to the fact that developers rather than lawyers wrote the first comprehensive free software licenses (like GPL).

This is just a small sampling of the wonderful world of legal terminology. Please share your favorites!

[Note, the "meanings" above are drawn primarily from the Nolo Press legal glossary, the Law.com dictionary, the FindLaw legal dictionary, the free legal dictionary, and Wikipedia.]