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.)

Relationships Matter

After a couple of postings focused on the state of the open source business, I would like to pick up the theme of earlier postings concerning fundamental legal considerations for open source businesses.

Good businesses are built on good relationships ... relationships with customers, partners, and employees. Open source companies have another important relationship to consider ... the community. In the spirit of the old adage "good fences make good neighbors," contracts, instead of wood or brick, help keep good relationships from going bad. While contracts are well accepted in customer, partner and employee relationships, they are not as effective in a community relationship. Whether through contracts or other means, open source companies must address the unique demands they face in balancing their profit motives with open source ideals.

The most fundamental of all business relationships is between vendor and customer, and standardized contracts are a well-accepted means of describing the expectations of these parties. While the commercial contracts of open source companies are generally the same as for proprietary companies, certain virtues of the open source development model allow open source companies to sidestep or minimize the many traditional commercial software contract clauses. For example, the availability of free software before purchase often makes customers less worried about issues like evaluation licenses, performance and ownership warranties, broad indemnification rights, and licensor liability obligations.

Partner relationships of all sorts (marketing, distribution, inbound licensing, joint development, etc.) also are commonplace in the open source business and typically addressed through standardized contracts. Because partners, like customers, can get the value of open source software without paying for it, open source companies must present additional value (such as marketing or referral benefits) compelling enough to entice partners to enter into agreements that provide adequate protection. Specific clauses might include prohibitions on forking the code or creating an unauthorized solution, or an obligation that a partner's solution must always be available under an open source license.

Employees are the most important assets of any technology business. As a result, employment agreements, related agreements governing ownership of inventions created by employees, and confidentiality agreements are regularly used. The traditional templates for these types of agreements are, however, at odds with the open source ideals of community participation because employees of open source companies are also members of the community. As a result, open source companies must challenge themselves to rethink the traditional scope of employer ownership rights and level of oversight in employee participation in outside projects and implement appropriate legal agreements and company policies. This type of flexible approach also has the benefit of being a great tool for recruiting potential employees from the community.

A community relationship is different than the other relationships above in that an open source company can't rely on a contract to set expectations ... the community has no single point of contact that can enter into contracts, and the relationship is based on a constantly evolving application of open source principles as well as trust established over time. However, a company's contributor agreement, the one important community-oriented legal agreement, should reflect community ideals such as by granting contributors joint ownership or broad usage right in contributed code. The community also looks to a company's position on patents as an indication of open source friendliness so a carefully considered patent policy is important see my previous post on patents for more on that). In general, open source companies need to establish a clear business strategy that incorporates open source principles, and be able to clearly and tactfully articulate why the community should accept a particular business decision even when it might conflict with open source ideals. Decisions as to when and how to enforce violations of open source licenses, or when to introduce closed source code into an open source solution are among of the most difficult for the community to accept, but a strong community relationship will help.

Each of these 4 relationships are vital to the success of an open source business. While contracts can play a primary role in open source companies and their customers, partners and employees being "good neighbors," the community relationship, by its very nature, is less predictable and requires trust along with the proper balance between sincerity in honoring open source principles and conviction on business strategies that might be seen as contradicting open source values.