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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!

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