A community of FOSS lawyers? | Opensource.com

A community of FOSS lawyers?

Posted 29 Mar 2010 by 

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There is a fairly common perception among FOSS hackers that there is no community of FOSS lawyers. Scratch the surface, though, and it turns out that- despite our handicaps- the FOSS legal community is there and growing. Since this question recently came up in the context of Mozilla's decision to revise the MPL, I thought it might be a good time to talk about this community here at opensource.com.

A big part of why so many people have assumed that there is no legal community of practice is because lawyers have a lot of structural and cultural barriers to forming real communities of practice. The common practice of billing by the hour encourages us to be very skeptical of any work which doesn't give an immediate payoff. Our occasional arrogance about the complexity of what we do makes it very, very hard to break down the insider/outsider boundary. And our habitual allergy to cluetrain-style plain English, which is so essential to a functional community that it isn't even mentioned in The Open Source Way, is obviously also a problem. On top of all these other problems, the structures of privilege, evidence, and ethics law combine to make lawyers very nervous about discussing anything in public.  We're explicitly taught that doing things in public has very few upsides and vast numbers of potential downsides. This means that even when we succeed in dealing with all the other issues, we tend to keep the communities that do exist private and out of the limelight. 

Despite all that, the FOSS law community is still growing- which is a testament to the power of the collaborative model. To me, the heart of the test for 'are people a community' is 'can I call on a known group of people for help in a pinch, and would they feel comfortable doing the same of me.' In this informal, unstructured way, there is definitely a growing FOSS legal community of shared interests and relationships. When Mozilla started the MPL process I could list at least a half-dozen people who I knew would want to be involved and would give of their time. A few months in to the process, and the list is now much longer. This informal community- a diverse group including partners at high-profile law firms, counsels at FOSS-using companies, individual practitioners, and others like SFLC- was very helpful in laying the early groundwork for the MPL process, and has continued to be helpful as we've gotten further into it.

This quiet, informal community is also slowly acquiring the infrastructure that marks a more mature internet community. For example, there are now several mailing lists where FOSS lawyers discuss topics of interest. Most of them are private, but one such group- the FSF-E's Freedom Task Force- is publicly visible (though private membership/mailing list) and has already provided some useful MPL feedback. Several more formal organizations, like SFLC, OIN, OSI, and the Linux Foundation, have also started hosting mini-conferences, like OSI's recent event and SFLC's series of events in support of GPL v3. As anyone who has been to a GUADEC or FUDCon knows, this face time is invaluable. Thanks to the efforts of several people, we now even have our own journal- which may not mean much to hackers, but to other lawyers it signals that we're a real intellectual community. Think of it as our (very verbose) community blog- and more importantly, just one more step to feeling connected with each other and eventually providing better services to FOSS hackers.

The shift in hacking from a cloistered, do-everything-in-house mentality to one focused on collaboration and sharing didn't happen overnight. The shift will be even slower for lawyers, but we're working on it, and the end results should be great for the rest of the FOSS community.

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19 Comments

fontana
Open Source Evangelist

Ever since I began to be involved in FOSS legal matters I noticed that there is a degree of collaboration and cooperation among the lawyers who work in this area that I never really saw in the several other areas of legal practice in which I worked in the past. I have wondered whether in some sense these lawyers have more or less unconsciously been influenced by the broader social values of the developers whose work forms the basis of their legal work.

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Luis
Open Minded

I'm guessing there is some selection bias at work here; the lawyers who are completely incapable of grokking sharing (most of them, sadly) stay away from the area because they can't understand their potential clients. The ones who can understand the clients are almost necessarily also ones who are at least empathetic to sharers, even if they aren't very good at it themselves.

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Bradley M. Kuhn

Unfortunately, I've found that many lawyers simply dismiss anyone who doesn't have a law degree. To many lawyers, if you don't want to go into massive amounts of debt just to get YA degree, it means you must not be qualified to comment on anything that intersects with any legal issue. I've worked on FLOSS licensing issues and policy for more than a decade, yet at least half the lawyers I meet think that because I can't financially afford to go to law school, I "must not know what I'm talking about". In the invitation-only situations such as FTF-E, this means "not welcome here". In other places, it means your opinions are just ignored.
It's true that there are hacker-licensing trolls who don't really understand licensing issues but insist on opining anyway, but there are well-known lawyer-trolls too.
Just as hackers should stop rejecting people from communities simply they "don't code", so should lawyers stop rejecting people from their communities simply because they can't afford the high cost of law school.

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rtiller
Open Source Evangelist

Bradley, you raise a great point: the community concerned with these legal issues shouldn't be thought of as limited to lawyers. You've established your credibility on FOSS licensing the old-fashioned way, and it's disturbing to think some lawyers fail to recognize that. In the commercial world, law school is used as a kind of certification (like Grade A meat), but lawyers of any intelligence recognize that the system is far from perfect in conveying information about what's certified. The lack of the certification, to my mind, doesn't say anything definite. The basic question for me, in evaluating legal views, is whether they have a sound basis in law.

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fontana
Open Source Evangelist

My grand legal theory, which I've discussed in some past talks, is that FLOSS licensing law is largely created by the actions of hackers. Therefore I think lawyers who are dismissive of hackers in the way you describe cannot fully understand FLOSS, while hackers who are immersed in FLOSS culture may be more qualified to explain licensing issues than traditional commercial software lawyers. I have encountered the dismissiveness, but I hope it is not as extensive as you suggest.

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Christian Einfeldt

hi,

I use Linux in my law practice. I am wondering how many FOSS lawyers are using Linux?

Christian Einfeldt
415-351-1300
einfeldt@gmail.com

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Kristian Foss

Trying to practice what I teach, we have installed a Linux server here in our firm. To get it to synchronize with Macs, PCs and Linux, we have had to spend some time, but have now decided on iFolder. Looks great.

On the desktop I have used the OpenOffice.org suite quite a bit. It has worked ok, but being an advanced text user, I have found it not quite good enough, but I am sure that will come.

Our main obstacle is however, our management systems, for hours, templates, email, financials and so on. It requires IE and is integrated with MS Office. (I know there are ways around, but it takes time...)

At home I love the speed of Linux and Chrome, on the web. My old desktop running it (for my daughter) is much quicker than my new PC running Gatesware.

My medium term plan, is however, to take the final leap.

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Colonel Panik

Please keep fighting for my right to use FOSS.

But how many of you use Linux (or other FOSS) software in your
practice?

Peace, Bob

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Luis
Open Minded

I'd guess the answer is 'frankly, not many'; I definitely know some people use Open Office (and it is considered poor form by many to send .doc to other people 'in the community') but most of us must have Microsoft Office installed in order to talk to other lawyers.

And as I've repeatedly discussed in my own blog, OpenOffice is, frankly, very bad software, with very little vision for how to improve itself into being good software. So it isn't surprising that lawyers aren't using it much- our word processor is our primary tool, and we must be satisfied with it in order to be productive.

I'd kill, frankly, for a simple, basic, user-focused Free word processor which used html+css as the document format and robust version control for collaboration. But I'm not seeing anyone working on that. :/

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Colonel Panik

I have sent this article to the two lawyers I know that use
Open Office.org full time in their practices.

Peace, Bob

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Luis
Open Minded

Sure, they exist (see some discussion on my blog) but there are also law offices that still use typewriters. ;)

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Andrew Tridgell

Hi Luis,

If you start with the attitude that only MS Word will do, and work
from there, then you're really doing yourself a great disservice.

I deal with a surprising number of legal documents. I often find
that I am able to do things with these documents that the lawyers
I work with can't do, because I run a FOSS desktop that has
a huge range of powerful tools.

A good example is reviewing contracts. It is common to receive copies
of contracts as PDF files. What happens when you get the next version
of the contract and you want to compare to the previous one? If you
are on Windows then you are probably stuck. Because I have tools like
pdftotext (especially with the -layout option) I can produce really
useful diffs between versions of contracts, and immediately know
exactly what has been changed, and that nothing has been snuck
in. This has been invaluable in my dealings with both Microsoft and
the EU.

When I was in court in Europe, we often heard some phrase from an
opposing lawyer, and we thought "hang on, I remember reading something
about that previously". The lawyers in the room were stuck - unless
they actually remembered the reference they couldn't find it in the
thousands of pages of PDFs and scanned documents they had from MS and
from the EU commission. Because I ran a FOSS desktop I'd pre-converted
the entire doc tree to text files using a OCR program, so I just ran
"grep -ir" over the tree and immediately found the reference we
needed.

Yes, it's different from how things are done in the Windows world. But
in my experience you can find ways of using a FOSS desktop that put
you streets ahead of your Windows using colleagues when it comes to
document manipulation. Particularly _fast_ document manipulation,
which is what counts when a judge is asking a question and you are
reaching for the right answer.

Cheers, Tridge

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Luis
Open Minded

Tridge: let me start with a meta-statement about tools, which is that I didn't use Word from 1997 to 2008, and didn't use a proprietary desktop from 1997-2010, so I'm well aware of the alternatives; I'm not coming straight out of the proprietary world.

The problem with your EU lawyers is not that they were using Windows, it is that they didn't know what was available to them on Windows. OCR-based pdf->doc conversion tools are pretty commonly available; most lawyers have them available somewhere in their firm. They are neither free nor libre, but they are there. And since they are outputting .doc, the output can be used with a sophisticated array of tools for diffs, history, commenting, etc.- much like the tools we have for text, but easier to use for mere mortals and aware of document structure as a bonus.

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Carlo Piana

As a lawyer deep into Foss things, I feel an urgency to only use Free Software. And indeed I have expelled almost entirely proprietary software from my practice, and it works (From a GNU/Linux desktop to an Apache Server + Drupal on Debian for the Web and email).
The remainings are one proprietary device driver for 3D acceleration for my ATI card and a Skype client that I use less and less (switching to SIP phones).
The problem is always with the external world, as it is common practice to work on MSWord redline documents (with few lucky exceptions, like Red Hat), and people finds it natural to send around proprietary documents without caring much of what the others would want to use. Luckily Openoffice.org has a decent handling of .doc, but it's a workaround, not a solution.
People don't think in terms of standards, it's a deep cultural problem first, then a technical one. Lawyers are just worse at it (they are worse at anything but their legal profession).

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Luis
Open Minded

(they are worse at anything but their legal profession).

hehehe... so true.

I bet a bunch of us sitting down around a table could easily specify a simple word processor that would be web-based (hence easy to share with clients), use HTML for the document (hence simple, standards-based), and use some sort of revision control on the backend (so that we can have good revision tracking- critical for us) without most of the other heavyweight bits.

Probably we'd end up with something a lot like Etherpad, or co-ment with better editing, but still... maybe thinking through the exercise would be good for us.

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bunburya
Newbie

Some very interesting comments here about interaction with open source within the legal profession. As a law student I don't really have much to contribute to that because, to be honest, we're not really taught about the practical aspects of working in the legal profession. In my experience, legal education tends to focus on the more theoretical aspects of law; the development of judicial attitudes in a given area of the law, etc. We don't hear much about the more practical aspects of, say, IP law, such as drafting licence agreements to suit the needs of your clients, and so it's hard for a law student to grasp exactly how--and how much--an open source approach to the legal profession could benefit lawyers.

Nor, for that matter, do we learn about open source licences themselves. Students in third level education at least tend to learn about intellectual property law as a mechanism for protecting innovation and the creative process by restricting access to, and freedom over, a product. We don't learn about the other side of the coin; about how innovation and production can also be fostered by maximising user access and freedom, and how open source licenses can be used to do this legally.

By contrast, my brother is in his first year studying computer science in college. He already has a strong grasp of the basics of computer programming, because for years he has had access to a community which rewards curiosity by providing the tools to learn and develop one's skills. Conversely, I also hear that his college has strong support for open source languages and software, and of course computer science students will generally have a better knowledge of open source software anyway. I think there is a reciprocal relationship between community and education--a strong open source community can increase the skills and knowledge acquired by budding students, but this may not be possible if people do not learn, from an early stage in their careers, about the credentials of open source development and what it can do for them in their area of interest. I think this relationship is lacking in the legal profession. Forming a large and strong FOSS law community is difficult because, among other things, students are not really exposed to the benefits which such a community could have for them and others.

That's just my two cent (not cents as I deal in euros not dollars). As a disclaimer, I should say that I am a law student at a third level institution in Dublin, Ireland, and of course some of the things I have said may not apply to law schools in other countries. Many of you who read this will have the practical experience I lack and some of you may think that what I have discussed here can't, or shouldn't, be taught in college. However, I can't help but think that, as bright as the FOSS law community's future is, it could be even brighter if more attempts were made to introduce prospective lawyers to this community at an early stage.

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Colonel Panik

Luis Villa said: "I bet a bunch of us sitting down around a table could easily specify a simple word processor..."

Well?

Or the group could make a hefty donation to OO.o and
let them cobble up the needed templates?

Peace, Bob

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jamesd

Opportunity to Learn

Just as I can point to lack on joy and motivation, I can point to adult learners that preferred to be guided. I can also point to situations where the instruction did not meet the initial needs articulated by the learners because the instruction itself changed the learner's and their stated needs………….

legal education

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nataliefsjm
Community Member

I really love your site! Keep up the good work. Great article btw! Neprinol

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I am the Deputy General Counsel at the Wikimedia Foundation, and a board member of the Open Source Initiative. Previously, I was a lawyer at Greenberg Traurig, working for a variety of clients on technology transactions and licensing issues, and at Mozilla, where I led the revision of the Mozilla Public License. I went to law school at Columbia, where I was the Editor-in-Chief of the Science and Technology Law Review. Before law, I had a varied career in software, starting in college with

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