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.

Mindtouch recently named the Most Influential People in Open Source in their blog http://www.mindtouch.com/blog/2009/10/27/most-influential-people-in-open-source/. I think that it is a measure of the health of the industry that it is difficult to identify those people and it is always difficult to choose only five people. Mindtouch deserves the thanks of the industry for the survey and creating an excellent list (in the interest of full disclosure, I was named in the Honorable Mentions category, so how can I disagree?).

However, I think that they should consider splitting the list into a business and technical list since they serve very different roles in the industry. Congratulations to those honored!

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A recent article by the Register incorrectly stated that Karen Copenhaver and I thought that the GPLv2 was “legally unsound”  in a recent Black Duck webinar. (you can listen to the webinar if you want to check for yourself http://www.blackducksoftware.com/files/legal-webinar-series.html).  The article has been changed by the author (apparently some unreviewed editing caused the problem) to read: “Two prominent IP lawyers have warned that the all-pervasive General Public License version 2 (GPLv2) contains legally ambiguous wording that may be problematic for licensees.”  (thanks to Austin Modine for his prompt attention to the issue and willingness to make the clarifying change). http://www.theregister.co.uk/2009/10/15/black_duck_gpl_web_conference_copenhaver_radcliffe/print.htmlhttp://www.blackducksoftware.com/files/legal-webinar-series.htmlThis statement reflects our views. As I have noted on the Register site and other places, neither Karen nor I view the GPLv2 as “legally unsound”.  In fact, I (and I am sure Karen) have advised companies to adopt the GPLv2 in appropriate situations.  And the GPLv2 has been found to be enforceable in all of the cases in which it has been involved. 

However, the GPLv2 has provisions whose interpretation is uncertain, many of which stem from the poor fit of copyright law to software.  Any seminar that discusses the interpretation of the GPLv2 will,  by its nature, focus on these uncertainties. Nonetheless, the GPLv2 has proved a very successful choice for many FOSS projects and many FOSS communities have developed a common understanding of the meaning of the GPLv2. And such understandings can have a legal effect in the US  through the doctrine of “usages of the trade” under Section 1-303 of Article II of the Uniform Commercial Code.  Moreover, many non FOSS licenses refer to “derivative works” despite the ambiguity of it meaning in the context of software.  The GPLv2 has been instrumental in the success of the FOSS movement and needs to be recognized for that central role. 

The GPLv3 and APGLv3 have the advantage of an additional 15 years of experience about the challenges in software licensing and a three year period of drafting by hundreds of lawyers. I believe that these licenses will be more clear because of those advantages. Moreover,  the advent of cloud computing means that to meet the expectations of most FOSS communities about the availability of source code of modifications, they need to consider resetting the trigger for FOSS obligations (such as making source code available) from distribution to “making available” (the so called “network use” provision) as was done in APGLv3. The GPLv 2 remains a significant option for many FOSS projects and is always on the list of licenses that I discuss with my clients.

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