Notice

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.

On August 13, the Court of Appeals for the Federal Circuit (CAFC) issued its decision in the Jacobsen v. Katzer case.
http://www.cafc.uscourts.gov/opinions/08-1001.pdf
This case was the first real test of the remedies for breach of open source licenses in US courts (for more background, see http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html). Unfortunately, the District Court decision was wrong and wrong in a way that could have been a disaster for open source community. The District Court found that the requirements in the Artistic License for notice were merely a contractual covenant rather than a condition on the scope of the license (the courts sometimes use the word “restriction” on the scope of the license and “condition” at other times, but they have the same meaning). Consequently, under the District Court’s analysis, Katzer’s actions were not copyright infringement. Thus, Jacobsen was limited to the traditional remedy for breach of contract, monetary damages, rather than the copyright remedy of injunctive relief (injunctive relief means that the court will order Katzer to comply with the terms of the contract).

The CAFC reversed the District Court’s decision and its reasoning is very helpful for the open source community. The court found that the limitations in the Artistic License were “conditions” on the scope of the license and, thus, Katzer was liable for copyright infringement (as well as breach of contract). The CAFC noted that the Artistic License imposed its obligations through the use of the words “provided that” which is generally viewed as imposing a condition. Although the reasoning is limited to the Artistic License and the interpretation of each open source license will depend on the wording of its provisions, this decision is a welcome change to the District Court decision. The case has been remanded for the District Court to determine if the other criteria for injunctive relief have been met, but the CAFC’s decision strongly suggests that they have been met.

The open source community should thank the lawyers who worked hard and on a pro bono basis (i.e. free) to achieve this victory. Any such list is bound to be incomplete and I apologize in advance for anyone that I have missed, but I think that the major contributors were: Victoria Hall (Jacobsen’s counsel), Chris Ridder and Anthony Falzone (Creative Commons counsel, authors of the amici brief), Karen Copenhaver (Choate Hall, counsel for the Linux Foundation who assisted on the Creative Commons amici brief), Allison Randal and Roberta Cairney (counsel for Perl Foundation who assisted on the Creative Commons amici brief), Larry Rosen (Rosenlaw & Einschlag, who assisted on the Creative Commons amici brief), Scott Peterson (HP, member of OSI’s Legal Advisory Council who assisted on the Creative Commons amici brief), David Gross (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief) and Steve Chiari (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief).

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Linuxworld was very interesting this year. As Bob Sutor noted, we stand at a crossroads on the development of Linux and open source (see below for Bob’s predictions).

I spoke on Implementing Your Open Source Business Strategy http://linuxworldexpo.com/live/12/conference//tracks/tracksessions/Legal+and+Licensing/QMONYB00BIOE. The audience was very interesting: although we had some open source companies, most of the attendees were traditional software companies who are trying to learn about implementing open source strategies. This shift is consistent with my experience working with software companies in Silicon Valley and around the world: open source software is becoming part of the mainstream software industry. We have recently seen this trend among large companies: Adobe Systems, Inc. released Flex and Nokia releasing the Symbian operating system under an open source license. This is consistent with the conclusion of the CEOs and senior executives of the Open Source Think Tank 2008 http://thinktank.olliancegroup.com/ and the recent Open Source Alliance survey http://www.opensolutionsalliance.org/.

One of the most interesting presentations was by Bob Sutor from IBM. Bob reviewed the history of IBM’s involvement with Linux and then went on to discuss the future (you can see his slides at http://www.sutor.com/newsite/blog-open/?p=2446). His predictions are as follows:

1. The desire to be “green” will drive use of Linux with hardware optimized to reduce energy use

2. Linux will not be replaced by another open source operating system

3. Linux will expand on many hardware platforms but x86 will be less important; the use of Linux will be less visible through SAAS and cloud computing where the operating system is not clear

4. The concept of Linux desktop will shift as Web 2.0 and new technologies will change the concept of desktop

5. The path of SMB adoption is unclear: will they adopt open platforms vs. cloud computing

6. The adoption of new FOSS licenses will probably slow down and the adoption of licenses will focus on the five or six most frequently used licenses, but products will be issued under multiple licenses increasing complexity of legal issues

7. Open standards in licenses will grow and a model similar to Creative Commons will evolve

8. Proprietary applications will be developed for Linux, but some industries (such as education and health care) will continue to develop open source applications specific to that industry

I think that most of these predictions are very insightful. However, I don’t agree with his seventh predictions on licensing. As the General Counsel of the Open Source Initiative for many years and being involved in our efforts to reduce license proliferation, I think that the legacy of multiple licenses (we now have more OSI approved licenses than when I started) will be difficult to overcome. Sadly, I think that we are beyond the point where we can take the rational approach adopted by Larry Lessig in the Creative Commons. The existing licenses have such strong backing that the adoption of a new “cleaner” approach is not likely to be successful. I hope I am wrong, but habit is hard to overcome.

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