How to Talk to Your Lawyer about Open Source Software

Lawyers know surprisingly more than they think about open source software.

If you’re a developer that wants to use free and open source software then sooner or later you’re going to need to talk to a lawyer. Many developers have a working understanding of software intellectual property, but unfortunately software copyright is a space fraught with exceptions and edges and ambiguities. Someone came up with the (now shortsighted) idea of applying copyright law to software back in the day when programs were no bigger than books, because it was a form of creative expression. The average business lawyer is at a loss around software IP law unless they’ve spent time learning the nuances, and even then you will find software patent lawyers and software copyright lawyers deferring to one another’s expertise because (at least in the U.S.) it’s just too complicated to hold it all in one’s head. I once learned from a legal colleague the best way to start a conversation about open source with a lawyer that hasn’t yet really encountered it or the licensing terms surrounding OSS. Essentially, you need to get them on side to understand the economic motivation, and to get them away from the concerns over derivatives, plagiarism and lawsuits. Ask the lawyer, if when they start a new contract, do they start with a “blank piece of paper.” Most will say “no” in a variety of forms. So ask them why not. Typically the answers boil down to:

  1. The text is purely functional. There is only one way to say certain things clearly.
  2. There’s de minimus risk, which is a fancy way of legally saying, “No one would ever sue us for that ....”
  3. The text is peer reviewed and proven to work.

The compounded economics of shared creation of work that’s proven to be “bug free” from multiple reviews and re-use in multiple settings over time is obvious to lawyers in their own field. Lawyers program in English. (Okay, that was a very culturally-centric way of saying it.) Lawyers also work to tight timeframes, and may well be assembling a multipart complex agreement as a team. Lawyers want to ensure they are clearly articulating an agreement which will form an interface between two parties for action and accountability. By getting a lawyer new to open source to understand that they share text all the time that in theory has a copyright on it the second their “pen leaves the page,” you are well on your way to getting them to where they need to be in the open source software discussion. Then the problem becomes one of deeper education because your lawyers will have questions. There are not a lot papers on the web that aren’t being used as an on ramp to selling services or tools. While no lawyer is comfortable with “competing bodies of text” to their licenses, wanting to be able to say “the license says what the license says” if they need to defend it, there are still good materials out there. The license stewards are excellent places to start for knowledge of the licenses and how to think about them.

  1. The Free Software Foundation as steward of the GPL family of licenses maintains excellent discussions about their licenses, a long FAQ, and an excellent discussion of GPL compatibility with other licenses.
  2. The Eclipse Foundation as steward of the Eclipse Public License maintains an FAQ on its license.
  3. The Apache Software Foundation maintains an FAQ about the Apache License.
  4. The BSD license is pretty straight forward, and the University of California, Berkeley even published the following note on the “advertising” clause, should you need to help your lawyer understand the change.

There are a number of books on software intellectual property for developers. (My favourites are Van Lindberg and St. Laurent.) Lastly, I’ll point you to a recording of the session where my lawyer friend explains to the audience about helping lawyers think about open source software. [Start at minute 14:20.] The audience comments are as much fun as the content.


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