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We talk about open source a lot at Red Hat, but other interesting things come up. Last week I had a burrito with my colleague Jake Sullivan, who graduated not long ago from the University of North Carolina with a major in American history. Although I'd been working with Jake for more than a year, I had not got around to comparing notes with him about historians. I mentioned a couple of dark chapters of the Civil War that I thought needed deeper scholarship. Jake assured me that there was significant work already out there, and even provided me with a reading list. It's great to find someone who knows all about something you want to learn about.

As we kick off the opensource.com law channel, I'm anticipating many such serendipitous encounters with people interested in the legal issues around free and open source software. This channel is intended as a forum for discussion of licensing, patent, trademark and other legal issues. Inspired by the collaborative spirit of free software, the law channel will invite thoughtful, careful, or just playful participation.

As open source develops and expands, there is certainly no shortage of fascinating legal issues to discuss. Where exactly will the discussion take us? Just as when I talked to Jake, I won't try to predict what interesting ideas will emerge, but I'm confident there will be surprises. Welcome to the site, and please consider sharing your thoughts.

Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation.


I think this channel is an excellent idea, and long overdue. I do, however, wonder if this statement:

"As we kick off the opensource.com law channel, I'm anticipating many such serendipitous encounters with people interested in the legal issues around free and open source software. This channel is intended as a forum for discussion of licensing, patent, trademark and other legal issues."

perhaps underestimates the immense potential which the channel has to generate interesting and productive discussion on the nature of the legal system itself.

In the other channels, discussion appears to revolve largely around the development of open source models of government, business etc. I think this approach could be similarly beneficial here. There is room for discussion not just on legal issues relating to open source software, but also on the relevance of free and open source philosophies to the law itself--its study, development and application.

Of course, there are many differences between law and software, so no easy analogy can be drawn. However, I do think that the principles which guide the development of open source software and which have made FOSS so successful can be applied to the legal world in many respects. This would involve taking the experience of open source projects which have been successful in other areas and generalising the lessons learned from these experiences in order to form general principles which can be applied to various aspects of the law and the legal system.

Speaking from a common law perspective at least, it is certainly true that the development and application of the law requires a free flow of knowledge between a pool of "contributors". The more knowledge that is effectively conveyed by parliament to the courts in the passing of legislation, the better equipped courts are to uphold parliament's intention when it comes to interpreting and applying that legislation. Similarly, court systems in common law jurisdictions have mechanisms to facilitate the flow of knowledge between judicial "contributors", such as the publication of judicial opinions, even by dissenting judges. Further still, a strong and healthy academic culture, visible through (among other things) a proliferation of highly regarded peer-reviewed law journals and reviews, can aid the development of the law by expanding the pool of contributors and creating a wider range of sources from which knowledge and ideas may flow to lawmakers such as legislators or judges.

That's just one example. What about trial by "a jury of your peers"? Peer-based application of the law in its most obvious sense.

But, does the existing state of the legal system really maximise the potential of open source principles? Are there constraints or restrictions being placed on the ability of the free flow of knowledge between an expanded pool of contributors to aid in the development of the law--such as an unduly rigid doctrine of stare decisis, a lack of clarity in judicial reasoning, a failure by courts and legislators to have regard to popular or academic opinion, etc.? And does the jury system in its present state really do justice to the idea of a trial by one's peers--or is it too small, too unrepresentative, too vulnerable to abuse? Perhaps most importantly, what are the other areas where open source principles have had, or could have, a substantial and beneficial impact? These are questions which it is very much in everyone's interests to discuss and, hopefully, to answer.

And again, I have only described, briefly, the common law positions on these issues. I have no idea what the situation is in civil law jurisdictions, but I would love to find out. That goes back to Rob Tiller's observation above: "It's great to find someone who knows all about something you want to learn about."

Linus' law, as formulated by Eric Raymond, states: "Given enough eyeballs, all bugs are shallow." There is little doubt, I think, that the law has plenty of bugs. Considering the extensive way in which the law impacts on so many of us every day, there should be no shortage of eyeballs either. It is in that light that I think a discussion of how we might build a truly open source legal system would be beneficial. Now I know that the OpenLaw/about says that this channel will deal with "all forms of interaction between open source and the legal system", and I also realise that the law relating to open source software has immediate practical as well as theoretical importance to Red Hat and other proponents of FOSS. But I hope I am not the only one who hopes to see this channel used to discuss the development of a truly open-source legal system, rather than just an open-source-software-friendly legal system.

I hope that made a bit of sense at least!

Alan, many thanks for your post. I did not at all mean to discourage discussion of the kind of big questions you raise. I'd like to think that the common law system is still evolving; at any rate, there's still a lot of room for improvement. And I agree that the open source software projects could provide useful analogies for legal reform. There are aspects of the common law system that look, at least in their ideal form, like precursors to FOSS. Requiring reasoned decision making, and preserving and disseminating judicial decisions, are examples. By all means, let's keep talking about what an open legal system would look like.

What you say makes a lot of sense and I found it interesting. We have, in a sense, a serial open source development model in the law, building on prior teachings. But we have to have some predictability. A new direction might be better, but it puts the system in an uproar and has to be tested first. Perhaps the state of copyright law is a good example of where the system is currently failing, the legal system is moving too slowly to deal well with the new technology and how that has changed our understandings and expectations about what should be considered a legal wrong. Great post.

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