The case for educating judges on open source licensing

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Opensource.com

"Open source code is problematic because anonymous people on the Internet design it, and 'holes' are not fixed by vendor updates." Is this FUD from some proprietary software behemoth? No, it's a quote from a recent decision made by a California Court of Appeal.

As attorney Evan Brown noted, 21st Capital Corp. v. Onodi Tooling & Engineering Co. did not hinge on the fact that PostgreSQL is open source software. Indeed, the open nature of the software is basically irrelevant to the facts of the case. Nonetheless, the fact that such a statement would appear in a court ruling is disturbing. We're used to thinking about the legal issues of open source software in terms of intellectual property. Patent, copyright, and licensing issues have been litigated over the years. But these issues are not markedly different for open source software projects.

Copyright is copyright, and open source licenses are just another license. What this case illustrates is the need for judges and lawyers to understand what open source software is: not just software made available under a license, but software that has an accompanying ethos.

Readers of Opensource.com will not be surprised to read that participants in open source projects are not comprised of a monolithic demographic. Projects are run in a variety of ways: some will accept code from anyone so long as it works, while other programmers write the software and then "throw it over the wall" to the user community. Nowhere on that spectrum is "random strangers make driveby commits that immediately affect every installation of that software package." Open source software enthusiasts understand that community-developed software can be just as secure as proprietary packages. Academic research backs this up. The large usage of open source software in government and industry shows that it makes good business sense. And while this is all well and good, it means little if the lawyers and judges in a courtroom don't get it.

Law almost always lags technology—sometimes by a decade or more—and laws are made both by legislatures and by judicial decisions. It's only a matter of time until the very nature of open source software becomes a relevant part of a trial. Fortunately, the 21st Capital case does not establish a citeable precedent about open source software, but the next case might.

It's clear that open source advocates need to work on educating participants in the legal system. Lawyers and judges need to know the law foremost, and it's unreasonable to expect them to have deep knowledge of every possible issue that might arise. Nonetheless, even a passing familiarity can have a profound impact. I'm not sure how best to approach the issue, so if you have ideas, let me know in the comments.

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Ben Cotton is a meteorologist by training, but weather makes a great hobby. Ben works as the Fedora Program Manager at Red Hat. He co-founded a local open source meetup group, and is a member of the Open Source Initiative and a supporter of Software Freedom Conservancy. Find him on Twitter (@FunnelFiasco) or at FunnelFiasco.com.

10 Comments

Great article Ben, as always! Sure makes me think, on how to advocate this part of open source.

Great article Ben! Lots of FUD surrounding open source. The original intent of copyright was to stimulate invention and progress. Now, however the trolls are greedily using it to line their own pockets and of course, this frustrates innovation and development. Your excellent article reminded me of this TED talk by Larry Lessig about laws that choke creativity, https://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creat….

Thanks Ben. As someone who regularly travels the world speaking on OSS related topics, I can attest to the fact that even among "IP" lawyers, I high degree of misinformation persists. Those of us who deal in OSS matters routinely can sometimes forget that, for those lawyers and judges who don't, much of our OSS world can seem foreign. This fact compelled me to write an essay on this a few years back. Check it out at: https://www.blackducksoftware.com/noindex/salesforce/pdfs/GCounsel_Talk…

And, naturally, Black Duck's website has other white papers and webinars that are worth sharing with our lawyer/judge friends.

One way to approach this issue is to submit an amicus curiae in court cases where you think an explanation of open source software is relevant. It is too late to do so in 21st Capital Corp. v. Onodi Tooling & Engineering Co. but you could submit an amicus curiae if that case is appealed further.

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Steve Stites

Steve, that's a great idea. Do you know if lower courts tend to accept amicus briefs? I've only heard of that in the context of cases before the Supreme Court. My biggest concern with such an approach is that it requires knowing which cases would be relevant, so it's not proactive.

In reply to by Steve Stites

Any American Federal court will accept an amicus curiae. Each court has a set of rules which vary a little from court to court. As far as I know every Federal court requires you to get the court's permission to submit an amicus curiae.

I submitted an amicus curiae in the Alice v CLS case. Alice went through a district court. Then it was appealed to a 3 judge panel of the Federal Appeals Court for the Federal Circuit. Then it was appealed to an en banc (10 judges) hearing of the Federal Appeals Court for the Federal Circuit. The chief judge, Judge Rader, said that anyone could submit an amicus curiae to the en banc hearing. So I wrote an amicus curiae and submitted it pro se. That cost me $200 out of pocket including 2 subway rides to downtown D.C.

Then Alice v CLS was appealed to the U.S. Supreme Court. The Supreme Court rule 11 says that you have to be an experienced lawyer to submit an amicus curiae to the Supreme Court so I did not submit an amicus curiae. But the open source position was well presented to the Supreme Court with an amicus curiae submitted by Eben Moglen.

You are right about not knowing which cases are relevant. Practically, you will probably know what cases are worth submitting amicus curiae when cases are appealed.

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Steve Stites

In reply to by Ben Cotton

I'm a fan of crowdsourcing (dah). Perhaps an opensource IP wiki could be setup where legal practitioners and litigants could share their experiences, or more specifically a thread highlighting successful legal cases in a succinct manner that a judge might consider using as a research tool. Has this been done already?

Groklaw partially filled the function that you are describing. However Groklaw was paranoid about not giving legal advice so all discussions of legal matters on Groklaw stopped short of actual legal action or even advice on how to carry out such action.

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Steve Stites

In reply to by Eric Braswell

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