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April 15, 2009 12:46 PM PDT

Debunking a law firm's open-source FUD

by Matt Asay

White & Case, a leading international law firm, has been struggling in the face of the recession, laying off 70 associates in late 2008.

Perhaps nothing makes its struggle as clear as its attempt to drum up business by scaring prospective and current clientele into retaining its services to address the very scary open-source legal threat, as a recent e-mail sent out to a friend suggests:

From: "Rieck, Christopher"
Date: April 13, 2009 8:09:09 AM PDT
To: xxxxx
Subject: Open Source Decision - New Legal Penalties on Developers?

Hi Dave,

Open-source licensing--the innovative (if controversial) tool that makes source code available to the general public on certain conditions--is a growing movement most closely associated with Linux and other major software products.

The movement may well have been given a great boost by a recent court decision that makes it easier to enforce open-source licenses. But the unintended side effect may be that many software developers who incorporate bits and pieces of open-source code in commercial programs will now face greater risks of significant legal penalties for doing so.

Last December, a decision by the U.S. Court of Appeals for the Federal Circuit in the matter of Jacobsen v. Katzer held that breach of an open-source license can support a claim for copyright infringement--with associated remedies. The Court's ruling may also require recognizing that the open-source copyright owner has standing to sue downstream licensees for copyright infringement....

"Following this decision, commercial software developers should be even more cautious of incorporating any open-source code in their offerings. Potentially far greater monetary remedies (not to mention continued availability of equitable relief) make this vehicle one train to board with caution."

This is an interesting perspective, one that explicitly cuts against the generally positive perspective on the lawsuit that Mark Radcliffe and other experts on open-source law have suggested.

Indeed, legal expert Larry Lessig calls the Jacobsen decision "huge and important," and explains the appellate court's finding in very different terms than White & Case:

In nontechnical terms, the court has held that free licenses such as the (Creative Commons) licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer.

This is the theory of the (GNU General Public License) and all (Creative Commons) licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Does that sound dire? I don't think so, either.

No, it simply means that White & Case's clients can't pilfer from the open-source community without contributing back. Since when is this something to fear?

So while it may be good business for White & Case to spread FUD (fear, uncertainty, and doubt) within its clientele to drum up business in a weak economy, the case it references is a big win for clarity around open-source licensing. This is something to celebrate, not fear.

It's also a reason to retain a different law firm, one that recognizes the opportunities in open source and isn't fixated on risks mostly of its own invention.


Follow me on Twitter @mjasay.

Matt Asay brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. Matt is vice president of business development at Alfresco, a company that develops open-source software for content management. He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure.
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Add a Comment (Log in or register) 5 comments
by Random_Walk April 15, 2009 1:42 PM PDT
Depending on which state they reside in, don't lawyers have to follow certain marketing guidelines as required by law? This scare tactic letter looks a lot like a blatant violation in at least a couple of states I can think of offhand. Again, depending on state, they could face suspension, disbarment and fines if anyone called them on this particular flavor of BS.

Personally, if they've already had to lay off folks (especially in an economy where world+dog will sue for any reason just to get paid), then I suspect that they've got bigger problems than just the amount of BS that they can pump out.
Reply to this comment
by semimu1 April 15, 2009 2:24 PM PDT
I dont agree with the tactic, but your response is also very skewed towards open source advocates. In fact, the decision does leave open the question: what is the penalty for distributing a copyrighted material without a license? Those penalities are pretty well established under current law (which is what W&C were using as FUD). That issue is unclear in both cc and GNU licenses.

If you are going to argue unbalanced coverage, please try and balance your response.
Reply to this comment
by D. C. Toedt April 15, 2009 2:26 PM PDT
In a former life I was general counsel of a publicly-traded software company. IMHO, the White & Case memo isn't the least bit FUD-ish. It's a sober assessment of a very real concern. There are a few programmers out there who can't be bothered with "legal stuff," such as doing the extra work it takes to comply with FOSS license conditions. Such people can get their companies in real trouble. For lawyers who know about such things, this is a non-trivial concern.

If I'd received the White & Case memo while I was in-house, I'd have appreciated the information. Even if I'd seen it before, it's always nice to be sure you're getting the word about important things like this.
Reply to this comment
by trevorbsmith April 15, 2009 2:35 PM PDT
First, a significant service that lawyers provide to clients is providing information to minimize risk. The White & Case email seems to be just a notification to clients that new law has been written and that clients should check with W&C if they have questions about their use of open source code. Frankly, a lawyer would be an idiot if s/he didn't "warn" his/her clients and there might even be an argument that it would be negligence to fail to "warn" in this case.

Second, without commenting on the presentation or style of the W&C email, nothing in it seems to be factually incorrect. (DISCLAIMER: I haven't read the case in question, I'm just comparing the interpretation in the email you like with the one you don't like.)

Third, business clients sometimes do things they should not. Sometimes that may include using open source code and breaching the license (maybe modifying, distributing, but NOT making source code available?). For THOSE clients, the W&C email is vital information, not FUD as you claim.

Fourth, this kind of email is STANDARD business practice, at least in law firms I'm familiar with. It likely has nothing to do with the recession or layoffs. I submit that it's irresponsible to suggest a link between the two unless you have some actual evidence of such.

FWIW, I agree that the second email you quote is written more clearly, but not every lawyer is John Grisham. Shrug.
Reply to this comment
by tzs108 April 15, 2009 3:28 PM PDT
I don't get it. The law firm's letter said the same thing Lessig said. How can you call the former FUD, and then praise the latter?
Reply to this comment
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About The Open Road

Matt Asay brings a decade of in-the-trenches open-source business and legal experience to the Open Road, with an emphasis on emerging open-source business strategies and opportunities. Matt is general manager of the Americas division and vice president of business development at Alfresco, a company that develops open-source software for content management. He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure.

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