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Some Advice & a New Book by Larry Rosen, and an Open Source, Open Standards Conference
Tuesday, August 24 2004 @ 03:47 PM EDT

Larry Rosen has a new book out, "Open Source Licensing - Software Freedom and Intellectual Property Law," which I am enjoying reading very much. Rosen's Preamble says that the book is by a lawyer, but it's not for lawyers -- no citations or academic analyses suitable for a law journal. It's written, he says, for his friends in the free and open source community, who might be confused about which license to use for their software (there is an entire chapter on that), and also for those in business wondering how they and their company might be affected by various software licenses. It's the perfect book to hand your favorite PHB. You know, the one trembling with fear after reading FUD in BusinessWeek about open source and how scary and untested the licenses are.

He was recently interviewed by ComputerWorld about the book and asked why anyone would sue over free software:

"Your book has a section on litigation. Why would anyone sue over free software?

"People sue over intellectual property because it is property and because the stakes are so high and because the legal constructs are not black and white, and so licenses get interpreted and side agreements get made between companies. Lawsuits are usually by people who don't want it to be free -- who want to lock it back up again. As open-source becomes successful, people are going to want to try to make it proprietary, to claim ownership over things they don't have rights to. People will sue over what they have sued about since the first case: money and property."

Here is a bit from the introduction by Lawrence Lessig:

"Having failed to convince the world that proprietary software is technically necessary, or commercially necessary, the opponents of free and open source software now argue against it on the basis of legal necessity. At the most extreme (and absurd), SCO President Darl McBride argues that free software licensed under the GPL is 'unconstitutional'. At the center are those allied with Microsoft, who argue that the licenses supporting the most popular free and open source projects are 'dangerous' and 'unproven'.

"In this beautifully clear and accessible work, Lawrence Rosen defuses this last, and equally falacious, argument against open source and free software. While he doesn't waste trees responding to the ridiculous claims of McBride, this book builds a framework within which the family of free and open source licenses can be understood. And in a rare talent for a lawyer, Rosen succeeds in making these points about the law meaningful and understandable to all."

The ComputerWorld interview includes this question and answer about the GPL:

"What is the General Public License and why should I care?

"The GPL is the archetype, the first and best and most popular and most influential of all open-source licenses. It is the license under which Linux is distributed and many other software packages that are extremely important in open-source. About 70% of all open-source is licensed under the GPL. So it's important to understand it and its legal effects, its strengths and its weaknesses."

No wonder the dark side wants to make it walk the plank. The book touches, too, on open standards. Microsoft's just pulling out of the UN software standards body puts that subject on the map, and it surely gives the lie to Sun's Jonathan Schwartz's mantra that "open standards are better than open source." Here is Rosen on the subject:

"Open standards are really the battlefield on which we will determine whether software can truly be free and open."

Open standards are how you interoperate. It's what makes it possible for you to email (usually) people using different email applications. That is another way of saying that it's how you escape vendor lock-in, and, as Rosen points out, "you need open standards to implement open source," which is why Schwartz's phony dichotomy makes no sense. So, if that is the new battlefield, I guess it's time to start polishing up our armor and getting ready. From Rosen's chapter on open standards, p. 299 (I admit I read the last chapter first):

"Some companies and other nongovernmental organizations also want to control industry standards. Since those industry standards are not adopted by legislatures as laws, they cannot be enforced like building, electrical, and plumbing codes. Private owners of the intellectual property in standards can enforce their standards privately, under contract law and through the application of copyright, patent, and trademark law, by controlling license rights to the specifications of the standards. . . .

"What happens when someone owns patents that are necessary to implement the specification for an open standard? You will recall that the owner of a patent can prevent yhou from making, using, or selling his or her patented invention regardless of how you learned to do it, even if you invented it yourself subsequently.

"If someone owns a patent claim necessary to practice an open standard, you will need a license from the patent owner to practice that standard in your own software."

That is why standards bodies, such as the UN software standards group Microsoft just exited from, generally require that members limit their rights to enforce patents and require that they agree to license any patents necessary to practice their standards on "reasonable and nondiscriminatory terms". That would include no discrimination against FOSS, which requires licenses to be royalty-free. Ah, there's the Microsoft rub, I'm thinking.

Speaking of open standards, Rosen will be giving a keynote address at this conference on "Open Source, Open Standards -- Maximizing Utility While Managing Exposure", as will Bruce Perens and Glenn Otis Brown, the Executive Director of Creative Commons:

"The conference will focus on four key areas:

  • Business Risk and Exposure in Open Source Utilization
  • The Open Standards Deficit in Open Source: Problems in IP Management, Stability, and Market Growth
  • Implications for Open Source Adoption
  • Strengthening Open Source: Consideration of Alternative Solutions"

The conference will be in Scottsdale, AZ September 12-14, 2004. If any of you attend, please provide the rest of us an eyewitness report.


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