The Legal Protection of Linux - Patents and Licensing, GPLv3 and the Future

Moderator: Andrew Updegrove, Partner, Gesmer Updegrove

• Mark Radcliffe, Partner; DLA Piper US, LLP
  
• Jason Wacha, Vice President, Corp. Affairs; General Counsel, MontaVista Software
• Karen Copenhaver, Partner; Choate, Hall & Stewart
• McCoy Smith, Senior Attorney, Intel Corporation
  
• Abdy Raissinia, IBM
  

Mark Radcliffe:  Has been practicing for over 25 years.  Has 40 lawyers working in Intellectual Property issues.  Ran Committee C for GPLv3.  Impressed by the flexibility of the group crafting the GPLv3 and converting the license into something that people will actually use and accept.  This is not the way that licensing is typically done!



Jason:  working with large companies on using Open Source on hand held devices, etc. including building their knowledge and comfort of working with open source, open source licensing and intellectual property concerns.



Abdy:  Referenced OIN, patent attorney for IBM Linux Technology Center



Andy Upgrove:  Worked with the X Consortium ages ago.



Karen:  First ran into GPL in 1994 on a library.  Found it to be "really werid".  Probably too weird.  She asked the developer to use something else, anything else.  The developer over time pointed out that the math library was so highly examined (open source participation) that there was no other viable option.  Karen re-examined and found the GPL to be "really weird".  She then spent some quality time with the license as her first foray into open source and open source licensing.



Question:  How might open source and open standards play together in the future?



Jason:  this will be pushed by commercial forces.  Linux started as professionals playing as amateurs, but now people are getting paid as professionals to work on Linux.  That commercial force will drive the future directions and leverage the deep & broad aspects of the operating system.  Andrew: Do more developers need to be involved in the process?  Should the community be more involved and activist in the standards (and licensing?) process?  Jason:  the community is less clear since it includes individual developers, commercial entities and many others.  Mark:  as more applications and environments mix open source and proprietary applications and uses in a heterogenous environment, their will be more focus on licensing and related issues.



Mark/Andrew:  In the US, corporations are pushing open source, in Europe, developers/linux community are the primary force, in Asia, the government is the primary force.  Addition:  places like Brasil also have a very strong government support situation, where in the US other proprietary concerns are preventing a strong US government push toward open source.



Jeff Liquea - works for LF, also part of debian (which is well known for "amateur laywering"  - speckling of laughter) - question:  what do you think of amateurs writing licenses, giving interpretations of licenses, etc.?



Karen:  Lawyers probably wouldn't have had the creative capacity to have this vision - without those amateurs, at some level the open source movement wouldn't exist.  Lawyers are now trying to help mold the existing work into something that has a solid legal foundation.



McCoy:  This question came up in part during GPLv3, amateurs may not truly capture the goals that they want to achieve.  However, communities have an understanding of their guidelines and are self-policing to some level, which is a good thing.  Of course, there is some potential for problems down the road when amateurs are driving.



Abdy:  More and more, attorneys are actively reviewing these licenses and there is more overview in a legal sense of the new directions.



Jason:  "amateurs" or the developers who have a vision for what they want to do and can set the boundaries work well with lawyers or attorneys to help craft better licensing.



Karen worked with a mock court with Federal Circuit Court Judges as a way to evaluate some of these licenses, and the effort was definitely challenging.  The judges frequently referred back to the definitions of "derived works" because the area is very complex.  There is a definite concern that a bad court case could set a bad precedent.



Mark:  as the amount of revenue pressure from Open Source on proprietary companies increases, the amount of pressure on open source licenses and potential legal challenges is likely to rise.



General comment:  Several pointed out that lawyers mostly don't understand open source and related licenses, and even the panelists took a while to embrace it.



Bernard Golden:  What is the likely uptake of GPLv3?



Karen:  Things look much improved and there looks to be some significant potential for uptake.



Mark:  the user level community is likely to accept it more readily than some communities, and the VC group looks at the license as pretty reasonable based on his experience with VCs.



Karen:  Clearly the uptake will be gradual and thoughtful over time as well.



Mark:  A number of ISVs are going to find GPLv3 more palatable than GPLv2 in many cases.



Abdy:  The process of evolving GPLv2 to GPLv3 and the presence of many large vendors in that upgrade process strongly suggests that open source and related licensing is here for the long term.

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