Just a reminder, these posts are not legal advice. This site is the personal blog of Mark Radcliffe and the opinions expressed are those of Mark Radcliffe and not those of his clients, DLA Piper or the clients of DLA Piper.

About Me:

Mark Radcliffe

I have been practicing law in Silicon Valley for over thirty years assisting startups and global companies develop and market innovative products and services. I have participated in multiple business cyles in Silicon Valley from hardware to software to internet to cloud. My projects have included developing the dual licensing business model for open source startup, developing the original domain dispute resolution policy for NSI and assisting Sun in open sourcing the Solaris operating system. Recently, I served on the US Japan Innovation and Entrepreneurship Council (one of ten members) to develop a plan to encourage the innovation in Japan and the United States. I have been working with the same attorneys since 1986 although we have merged with other law firms several times. I am now a partner at DLA Piper, a (relatively) new global law firm formed in 2005 from the merger of three law firms. The firm now has 4200 lawyers in 31 countries and 77 cities. My experience in corporate securities (particularly venture capital) and intellectual property enables me to assist companies structure the financing and intellectual property strategy for developing ane exploiting a new product or service. I and my team work with fifty startups at one time as well as Global Fortune 100. I have been fortunate enough to work with companies in software, cloud computing, semiconductor, health care IT and Web 2.0.

I am looking forward to the upcoming Open Source Think Tank 2011 which we are co hosting with Olliance Group/Black Duck. Andrew Aitken has prepared a great agenda and we are going to have a case study by AOL which they describes as follows: AOL is planning two related open source initiatives: employing open source technologies and practices to improve the innovation and efficiency of their developers and releasing elements of their software portfolio as open source to enrich their ability to deliver content and encourage community contributions. 

This year the Open Source Think Tank will be particularly interesting because of the dramatic expansion in the use and importance of Freedom and Open Source Software (”FOSS”).  We will be discussing the recent completion of many important industry initiatives to make FOSS easier to use: Project Harmony (contributor agreement), SPDX (assisting management of the supply chain by providing a common vocabulary for describing licenses), new Mozilla license and Open Web Foundation (contributor agreements).

The Open Source Think Tank is unique because of the breadth and seniority of those who attend, from CEOs such as Larry Augustin (SugarCRM) and Tim Yeaton (Black Duck) to counsel such as John Noerenberg (Chief IP Counsel, Qualcomm) and Marissa Aufox (Compliance Counsel, Go Daddy Group) to CTOs such as Shawn Douglass (EMC) and Paul Daugherty (Chief Technology Architect, Accenture).

We will also be discussing the recent government initiatives which could dramatically increase the market for FOSS.  I have mentioned these government initiatives in an earlier post.

We have a few more spaces left for the Open Source Think Tank, but if you are interested you will have to move quickly.

The Sixth Annual Spring Open Source Think Tank has now been scheduled on April 7th to 9th at the Sonoma Mission Inn in Sonoma. The Spring Think Tank is one of my favorite events because I get to spend time with the most interesting people in open source and discuss the future of the industry in one of the most beautiful areas of the world. By limiting attendees to CEOs, industry luminaries, CIO/CTOs, senior technology executives, legal experts and investors, we assure a lively and informed discussion (and a great opportunity to network with your peers). 

 We will be using our experience at the successful Fall Think Tank in Paris to add more real-world business cases to the agenda. Selected case studies will focus on the growing commercial maturity and complexity of open source and the evolution of cloud computing and SaaS.  We are working on the agenda and will make it available closer to the date of the event. Just a  reminder – this is not a traditional conference; all attendees are expected to contribute and actively participate in the brainstorming and workshop format.

This event sells out every year, if you have not already received an invitation, please go to and request an invitation.  

Moreover, Andrew’s selection of Sonoma as the venue means that we are in the heartland of Pinot Noir and it is an implicit recognition by Andrew of the superiority of Pinot Noir over Cabernet Sauvignon. I am glad to welcome him to the lovers of the true wine!

We had a great time in Paris at our Third Open Source Think Tank this year! We had over 120 attendees, primarily from Europe 

The two case studies were very different and illuminated the range of the open source market: Airbus and the Danish Government.  The Airbus discussion was particularly fascinating as they described a product development cycle of twenty years with a product life cycle of forty years.  Software has become critical to their planes, but given these time periods, proprietary software has significant disadvantages: (1) most proprietary software companies are likely to be acquired or go out of business during such a long period and (2) even if the proprietary software company still exists, the technology will be dated and the company may be reluctant to invest in maintaining it.  An open source approach overcomes many of these problems. 

The Danish Government described their efforts to encourage the use of open source in the government, including developing a forge. They faced many of the same challenges described by the State of California which we discussed at the Open Source think Tank in Napa. 

We once again had a great discussion of M&A. This panel was particularly useful for startup CEOs because merger is the exit strategy for over 90% of venture backed startups. The panelists emphasized the need to ensure that the company has clear title to the intellectual property in the product. The failure to do so can result in significant delays and possibly reductions in the purchase price.  They also noted that one problem that target companies rarely consider is the negative effect of large potential contract liabilities: the most common problem is unlimited liability for intellectual property infringement. Many acquiring companies will not accept such liability. In one case, the acquiring company structured the transaction as an “asset purchase” rather than a merger (much less favorable from a tax point of view for the acquired company) in order to leave the contract with unlimited liability behind.  We also addressed these issues in the legal panel (see our presentation at 

The cloud computing panel was supplemented by a real time poll.  The attendees were more optimistic about the effect of cloud computing on the use of open source software than the attendees in the Napa Open Source Think Tank in the Spring. A large majority stated that the advance of cloud computing has not effected the adoption of open source software.  Both groups agreed that security was the most significant barrier to the adoption of cloud computing. I am sure that this topic will continue to be important at future Open Source Think Tanks. 

After the last presentation, we joined attendees of the Open World Forum for a cocktail party in the Paris City Hall and then had a wonderful dinner on a barge on the Seine. We look forward to seeing you next year.


I have just finished attending the Fifth Annual Open Source Think Tank, hosted by Andrew Aitken and I at Meritage in Napa Valley.  Andrew and his team did a great job of organizing the event. The Think Tank is a great forum for discussing the important questions facing the industry, but equally important, we have structured the Think Tank to provide plenty of time to meet and get to know other attendees (more on that later!). Colin Bodell, VP Web Platforms for Amazon, said it best:  he always leaves with a thick sheaf of new cards and many new relationships.   I provided my annual summary of Open Source Legal Developments, including both 2009 and 2010 (you can see the powerpoint at

This year, we focused the discussions on commercial problems through the use of three formal “business cases” with detailed facts and questions:

1.  Public Sector: How should the State of California adopt and manage open source?

2.  Mobile Sector: Selecting a Mobile Platform for Application Development

3.  Cloud Computing and Open Source

Much of the discussion was focused on the cloud and how it will effect open source.  The opinions ranged across the spectrum: many participants saw the cloud as a great opportunity for open source, but a smaller (but vocal) group noted that the cloud could be a major problem for the open source model. In particular, the concern is that with cloud vendors taking responsibility for the “software stack” customers will be less concerned about open source advantages, leaving such issues to the cloud vendor.  As more companies move to the cloud, the customers of open source companies will shift from end users to cloud vendors: consequently, open source companies could have fewer and more sophisticated customers. 

Another challenge for open source vendors is the more sophisticated response of commercial software vendors:  commercial software vendors are building entire “software stacks” and providing such stacks as a comprehensive solution to end users, thus reducing the need for open source applications. The commercial software vendors are also using “cross subsidies” between the different parts of the stacks to compete with open source vendors selling a single application.

The cloud also poses new legal challenges. The interpretation of open source licenses (and commercial licenses) in this new environment is just beginning and lawyers in the industry have very different opinions on the issues. Some of the issues under discussion at Think Tank include: (1) is provisioning software in the cloud a “distribution” under open source licenses and, thus, triggering obligations under GPLv2, GPLv3, MPL, EPL and other “copyleft” licenses and (2) are software stacks in the cloud an “aggregate” as defined the GPL family of licenses and, thus, not a derivative work (a derivative work might require making source code of all of the programs available if the programs are distributed under the GPL type of licenses). 

We also had plenty of opportunity to get to know the other attendees: we had a winetasting on Thursday night in the “cave” at Meritage (including tasting Port brought directly from Portugal by one of the attendees).  After the winetasting sponsored by Scott Collison of Geeknet, we moved on to the bar at the Meritage where we shared our experience over stronger potations until well past midnight. On Friday, after the morning discussion and a wine tasting in the afternoon (or golf), we had a dinner at Artesa hosted by Microsoft.  We tasted the Artesa champagne, chardonnay and cabernet sauvignon. The site was magnificent with great views from a hilltop across the green hills of Carnaros and the wines were very good.  After dinner, we enjoyed using a telescope to scan the night sky (I saw the rings of Saturn for the first time!). 

The Think Tank was a great mix of fun and work.  Olliance Group will be summarizing the conclusions, so stay tuned!

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March is the open source month: we start with the Open Source Think Tank and end with OSBC. This year the Think Tank was particularly interesting because we decided to move away from more general questions about the future of the industry to focus on how to deal with particular business problems. Andrew’s team from the Olliance Group did an excellent job in setting up these questions  We continued to use the format from past Open Source Think Tanks, with the questions discussed by  groups of eight to ten participants. This year Olliance Group also introduced real time voting on questions (look for some interesting details in the white paper from Olliance Group).  For those of you located in Europe (or who can travel there), we will be having our Second Annual Think Tank in Paris in the fall.

However I think that the most interesting discussion was the panel with Marten Mickos and Michael Olson on their experience in selling an open source startup to a large company. They focused on the cultural challenges and how to deal with them.  I also provided an update on legal issues, with the Jacobsen case being the most important.  You can see my slides at

Despite the terrible weather, we had over 90 attendees.  As before, the most fun was spending time with those who are both knowledgeable and passionate about open source and its future. 

PS: We had a very interesting discussion about the potential need for a Commercial Open Source Trade Association, but more on that in a separate post.

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Olliance Group has recently announced the dates of the Open Source Think Tank: March 1-3, 2009.

This year represents the fourth Think Tank sponsored by Olliance Group and DLA Piper.  I go to many open source events each year and the Think Tank is my favorite because it combines a sophisticated audience, a reasonable size and interesting discussion.  Those who have attended also enjoy the format:

The Open Source Think Tank that was hosted by Olliance Group and DLA Piper was ideal, not only for the chance to share ideas and address the challenges surrounding commercial open source with my peers, but for the networking and business development opportunities. CollabNet was able move at least three partner and potential customer relationships forward at the event itself.”

Bill Portelli, CEO, CollabNet

During the 2008 Open Source Think Tank, 120 CEOs, CIO/CTOs, VCs, attorneys and industry luminaries representing the entire open source ecosystem from venture backed startups to Fortune 100 companies. The event is invitation only and it has sold out each time, so sign up early!

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We are in Napa at the Open Source Think Tank (for more information, please see and we have had two very interesting panels with CIOs telling us about their adoption and management of open source. They had a very consistent message: open source is everywhere and growing. But open source companies need to act more like traditional software companies: they need to have better support services and more professional sales. They also made clear that the future is “mixed” environment with a combination of third party proprietary software, third party open source software and internally developed software. These statements are consistant with Gartner’s recent prediction that 80% of proprietary software will include open source software by 2012. In the words of Gartner: By 2012, 80 percent of all commercial software will include elements of open-source technology. Many open-source technologies are mature, stable and well supported. They provide significant opportunities for vendors and users to lower their total cost of ownership and increase returns on investment. Open source companies need to be prepared to work in the mixed environment and to find ways for the end user to get support that they need for the entire stack.

In discussing the advantages of open source adoption, they went beyond the traditional focus on price to note that open source adoption also helps build community within the organization and saves time. They also provided some advice for selling to large enterprises: focus on the “use case”. As the representative of a major bank noted “Chaos breaks out after the third power point slide” so make sure that your use case appears on slide two. More to come.

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