Open source under the lens of an intellectual property lawyer

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Have you ever wondered what, from a business perspective, the world of sharing, free, and open source looks like to a lawyer?

Challenging! Chaotic? Creative.

Pam Chestek is an intellectual property lawyer. She runs Chestek Legal, a practice that focuses on giving practical, legal advice on branding, marketing, and protecting and sharing content. In this interview she shares with me what caused her to challenge traditional wisdom back in law school, the kind of chaos involved in analyzing free and open source software through the lens of the law, and how creativity is at the heart of it all. 

Where did your path begin veering towards the unique needs of open source communities and copyright law?

Looking back, it started in law school. We are taught that the Patent and Copyright Clause of the Constitution is based on a quid pro quo, that people won't create without the incentive of compensation, which is why Congress may provide a period of exclusivity for patents and copyrights. But that assumption never completely made sense to me. I knew that my urge to create was intrinsic and when I looked around, I saw the same was true of everyone I knew. Remuneration is nice, but I just never accepted that it was the only incentive.

Then in 1999 or 2000, I interviewed the Commissioner for Patents and Trademarks, Q. Todd Dickinson, and asked him about the incentive model the Constitution presumes. I was inspired to do it because this thing called open source was achieving some prominence, which confirmed for me again that the basic premise for granting copyright might be flawed. I'm sorry to say, though, that I have no recollection of what his answer was!

Nevertheless, as lawyers we are taught to be protectionist and maximalist, and I practiced that way for a number of years. When I started working at Red Hat, though, I was challenged to change my thinking. Here was a very successful company that not only didn't enforce copyright, but encouraged everyone to share. It forced me to really examine the roles of copyright and trademark and understand the limits that the law imposes. That's an area that fascinates me; the law doesn't really get this thing called free and open source, so figuring out how to both respect the interests and desires of the FOSS industry while ensuring that they will be protected under currently-existing law can be very challenging.

When I decided to start my own practice, I wanted to continue to work with creative communities, both because I am philosophically aligned with them and because it's so interesting from a legal perspective.

What excites you about open source models? What do you value about the open source philosophy?

I believe that the development model for free and open source software is a superior model. Once I understood that the true benefit of open source development isn't just that you can tweak the code, but that you give your work back and likewise you gain the advantage of everyone else's work, it made so much sense. It's an iterative process that works through transparency and collaboration, and when you start to think about it, many goals, including most business goals, can be reached more easily that way.

I do, though, also respect individual accomplishment. I don't mean to say that everything creative should be done collaboratively or that it should be freely shared; it's an individual choice. But because I am involved with open source I have spent a lot of time thinking about the various things we create and where the balance might be for that particular pursuit, rather than assuming that a protectionist stance is always better.

Tell us a story about Creative Commons licensing.

I don't have a client story that I can share, but I have a personal one. I publish my own blog posts under a Creative Commons BY-ND license. A friend spotted that one of my posts had been republished on another site but without providing attribution. He contacted the site to ask them to correct it, and they quickly obliged. But I also recall that my first reaction was "they're ripping me off!"

It was a reminder that not only is the desire to create intrinsic, but there's also an intrinsic sense of ownership. That can create conflicts, even in the open source world.

I also don't think I would have reacted that way if the attribution had been there, and it's pretty commonly accepted that sometimes all we want is recognition. Which, interestingly enough, isn't something that copyright law protects, except for a very narrow subset of creative works protected by the Visual Artists Rights Act. So it's another example of how copyright law isn't always well-suited for protecting what we value.

Tell us about your blog.

My blog is Property, Intangible, and it just passed its 5th anniversary. I cover a very niche area of law, the ownership of intellectual property. I love reading cases—to me it's like reading novels, very human stories of double-dealing, failed dreams, family betrayals, or "there but for the grace of God" moments. So it's just fun to share those stories and I think my three readers really enjoy it too.

What do you hope to share with the All Things Open audience in October this year?

I like public speaking. I was an adjunct law professor for several years and it was great training. You have to learn how to think fast on your feet, know when you can answer, know when you have to defer an answer, and every semester I would have a student who opened my eyes to something that I never thought of before.

With All Things Open, I'm on a mission.

I think that in general technology companies don't recognize how important their brand is, and it's even more important in open source where there is no patent or copyright exclusivity a company can leverage—all you've got is the brand. So you need to protect and enhance the brand, but do it while sharing code and fostering a culture of inclusion, which can create some interesting tensions.

I'm very pleased to be co-presenting with John Adams, who is the Director of Global Brand Strategy at Red Hat. Through trial and error we've seen a lot of things work and a lot of things not work, so I hope others who are struggling with the same issues will find our past experiences helpful.


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Jen leads a team of community managers for the Digital Communities team at Red Hat. She lives in Raleigh with her husband and daughters, June and Jewel.


Thank you for this. It's nice to learn about another smart lawyer who gets it.


I love this quote:

"I think that in general technology companies don't recognize how important their brand is, and it's even more important in open source where there is no patent or copyright exclusivity a company can leverage—all you've got is the brand."

This is critical to understand both for these technology companies - to keep a strong and desirable brand - as well as for customers - to understand exactly who is leading the brand: the technical community, or the investors for the company.

Separately, do you have any advice for the foundations and communities (i.e. not for-profit corporations) who own their own brands? While the public perception issues are the same, the governance and organizational issues are not: the ASF for example is purely run by volunteers in this area; we don't have any paid staff for brand or community management.

It's a really interesting area, which is why I like working in it so much. When you dig in, I think there is a lot that communities are already doing, we just have to recognize them and be prepared to advocate to a court that they are adequate. All FOSS projects exercise quality control over the software in one way or another, which is the most important element, so that's a good start. It's actually also not a problem that is unique to FOSS -- courts have dealt with in with church groups, community organizations, fan clubs, etc., so it's not entirely unknown territory.

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