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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 have just returned from the Open Source Think Tank in Sonoma http://thinktank.olliancegroup.com/agenda_public.php. We had a great time and the discussion was vigorous! The last year has continued the expansion of open source use, confirmed recently by Laurie Wurster’s March 2011 article in the Harvard Business Review http://lawandlifesiliconvalley.com/blog/?p=619.  In particular, Android has been spectacularly successful and was a significant factor in Nokia’s recent failures in the handset market.  The new Nokia CEO, Stephen Elop, described Nokia as being on a “burning platform”  and identified Android as one of the major sources of their problems.

I provided my traditional Legal Update on Thursday (which you can see at http://www.docstoc.com/docs/76174077/Open-Source-Think-Tank-2011-Legal-Update).  The success of open source has had consequences: it has focused attention of rights holders on the industry and made some open source companies targets for legal action.  For example, Android’s success has been undercut by a tidal wave of litigation (with more than thirty eight lawsuits filed to date).  I believe that these challenges (and its modest existing patent portfolio) are the motive for Google’s decision to bid $900,000,000 to purchase Nortel’s patent portfolio. 

The ubiquity of the use of free and open source software has also resulted in many companies are demanding that their suppliers provide information on their use of free and open source software and how they comply with their licenses.  Yet as recently noted by Laurie Wurster in her Harvard Business Review article, many companies have yet to adopt a formal approach to managing their use of free and open source software http://lawandlifesiliconvalley.com/blog/?p=619.  At the request of our attendees, we addressed this management issue in a separate workshop.

The most interesting discussions were about the effect of cloud computing on open source.  It was the subject of two panels and a brainstorming session.  Nine out of ten groups in the brainstorming session believed that cloud computing was good for open source. However, attendees generally agreed that cloud computing undercuts two of the traditional advantages of open source: (1) low cost and (2) ease of use.  Yet the flexibility of open source development techniques continue to provide significant advantages. 

The attendees also agreed that open source companies (like all software companies) need to review their business models as customers in the cloud begin to expect “pay as you go” pricing. The tools in the cloud also permit very granular information on the use and interest in various features of a software program and the contributors who have provided those features: this capability may permit open source projects and companies to reward contributors directly for the success of their contributions.

The workshop led by AOL provided a great opportunity to work together to apply our cumulative experience in open source to real world problems. The conference works under Chatham House rules so you will need to see the results of those discussion.

As in the past, we included plenty of time to socialize with the other attendees. First Republic Bank put on a great cocktail party on Thursday, including tasting Araujo cabernet in their tasting (one of the cult cabs).  The shift in venue from Napa to Sonoma enabled us to experience a new region of the wine country:  Friday afternoon included tours at Chateau St Jean and Ledson (although Andrew somehow found wineries in Sonoma, the heart of Pinot Noir country, which focused on cabernet sauvignon).  A hardier group went for a bike ride, but they split into the “wine group” who tasted and rode 12 miles;  the hard core cyclists led by Peter Vescuso of Black Duck rode 30 miles.  I think that the combination of topics and attendees made this Think Tank the best one to date.

We are already planning for next year, so please provide us with your suggetsions. As in the past, Andrew is working on a white paper which will provide more detail about our discussions.  I look forward to the white paper to continue the dialog!

Recently Laurie Wurster of Gartner wrote an article in the Harvard Business Review which confirms that the free and open source software (“FOSS”) has reached a “tipping point” in adoption by companies which confirms a trend she noted in her 2008 report (Accenture and IDG have reached similar conclusions). http://blogs.hbr.org/cs/2011/03/open_source_software_hits_a_st.html

Yet she notes that this increase in adoption has not been matched by implementing processes to manage such use. She raised the same issue in her 2008 report. http://lawandlifesiliconvalley.com/blog/?p=107. In the Harvard Business Review in March 2011, she states: 

Even as our survey painted a rosy picture of the future of enterprise use of open source software, it also surfaced a concern. Most organizations, it revealed, have not established a policy framework to guide decision-making on the use of open source software. A proper framework would outline types of licenses acceptable to the organization, guidelines pertaining to intellectual property, regulations governing contributions to external projects, and an approved vendor/project list. Just a third of respondents claimed their organizations have anything like this kind of policy structure; the rest rely on ad hoc or informal processes

In fact, this problem is sufficiently important that we are having a specific breakout session on FOSS management at the Open Source Think Tank this week. http://lawandlifesiliconvalley.com/blog/?p=600.

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. http://lawandlifesiliconvalley.com/blog/?p=607.

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

This year has seen an increasing focus on the use by free and open source software (“FOSS”) by governments with recent announcements by the UK, the Australian Federal Government and NASA.  FOSS projects and companies need to be aware of these efforts because of the scope of the opportunity to transform government and provide less expensive software infrastructure to government. Governments are also a very large market for software. Yet governments continue to be hampered by their habits of using proprietary software as demonstrated by the recent decision by an administrative court in Lille, France. http://lawandlifesiliconvalley.com/blog/?p=584 .

The UK Government recently provided a very broad endorsement of FOSS and open standards in UK government procurement. The UK government described its new policy for the next 24 months recently:  http://www.cabinetoffice.gov.uk/resource-library/uk-government-ict-strategy-resources.  The approach to FOSS is described below:

To assist with the deployment of agile solutions using open source technology, the Government will establish an Open Source Implementation Group, a System Integrator Forum and an Open Source Advisory Panel. These will aim to educate, promote and facilitate the technical and cultural change needed to increase the use of open source across government.

This encouragement is similar to the approach of the Department of Defense in the United States several years ago. http://lawandlifesiliconvalley.com/blog/?p=314.  The UK government describes its goals in broader terms as follows:

The Government is taking a different approach to deliver this strategy, characterised by a strong centre and continued commitment to greater transparency through regular and open reporting. The approach includes:

mandatory open standards;

spending controls to ensure that new ICT solutions comply with strategy objectives;

transparency to ensure the continued comparison of common ICT services so that government gets the best price;

increased standardisation and modularisation of business processes and supporting technologies to create a platform from which government can deliver new models of open and innovative public services;

a new, strengthened governance structure; and

greater engagement with departments and suppliers to remove cultural as well as technical barriers.

The FSF Europe provides additional information on the approach in the UK.  http://fsfe.org/uk/mapping-uk.en.html

This UK policy announcement follows a similar one by the Australian Government earlier this year which requires “covered procurements”, those procurements for over $80,000 AUS must comply with the Open Source Policy in procurement.  http://www.finance.gov.au/e-government/infrastructure/open-source-software.html.  The principles are summarized below:

Principle 1:  Australian Government ICT procurement processes must actively and fairly consider all types of available software.

Australian Government agencies must actively and fairly consider all types of available software (including but not limited to open source software and proprietary software) through their ICT procurement processes.  It is recognised there may be areas where open source software is not yet available for consideration.  Procurement decisions must be made based on ‘value for money’.  Procurement decisions should take into account whole-of-life costs, capability, security, scalability, transferability, support and manageability requirements. 

For a covered procurement (over $80K), agencies are required to include in their procurement plan that open source software will be considered equally alongside proprietary software. Agencies will be required to insert a statement into any Request for Tender that they will consider open source software equally alongside proprietary software.  Tender responses will be evaluated under the normal requirements of the Commonwealth Procurement Guidelines (CPGs).  For a non-covered procurement (below $80K), agencies are required to document all key decisions, as required by the CPGs.  This includes how they considered open source software suppliers when selecting suppliers to respond to the Select Tender or Request for Quotation.

Principle 2: Suppliers must consider all types of available software when dealing with Australian Government agencies.

Australian Government agencies will require suppliers to consider all types of available software (including but not limited to open source software and proprietary software) when responding to agencies’ procurement requests. 

Agencies are required to insert this requirement into their tender documentation.  Suppliers will need to provide justification outlining their consideration and/or exclusion of open source software in their response to the tender.  Agencies will determine compliance with this requirement when assessing tender responses.

Principle 3:  Australian Government agencies will actively participate in open source software communities and contribute back where appropriate.

The Australian Government, through AGIMO, will actively seek to keep up-to-date with international best practice in the open source software arena, through engaging with other countries and organisations. Australian Government agencies should also actively participate in open source software communities and contribute back where appropriate.

In the United States, NASA recently held an Open Source Summit where it described how it is using open source and how it intends to use it in the future. http://www.nasa.gov/open/source/live.html. Although I was not able to attend, the presentation by David Wheeler from the Institute of Defense Analysis of the Department of Defense was very interesting, both for his criticism for NASA’s approach to using FOSS as well as his discussion of how FOSS fits into the regime of government contracting. http://www.slideshare.net/ckleclerc/2011-nasa-open-source-summit-david-wheeler. The Federal Government has an elaborate set of procurement regulations (which differ between different agencies and which are very different from traditional “commercial arrangements” and set up a “unique” infrastructure for software licenses.  Wheeler’s presentation describes how FOSS can be used in this system. I don’t agree with Wheeler’s complaints about the use of “intellectual property” but his summary can be very useful for persons trying to understand the fit between government regulations and FOSS.

Governments offer an enormous potential market for FOSS and the community needs to moniter government decisions on procurement, both at the policy level and on decisions about individual procurements.