Open Source Law Center Opens Doors

BURLINGAME, Calif. — A $4 million investment made by the Open Source Development Labs has helped create a center to provide free legal support to free and open source software (FOSS) projects.

The legal firm now known as the Software Freedom Law Center (SFLC) will be run by noted copyright lawyer Eben Moglen from its headquarters in New York, and staffed with two full-time intellectual property lawyers to provide pro bono legal support. Two more IP lawyers are expected to join the center later this year. Moglen said he would aggressively recruit from a talent pool of recent law school graduates. OSDL announced the formation of the spin-off organization during its hosted Enterprise Linux Summit here this week.

“This is about taking care of the goose that laid the golden egg and not letting wolves come in the middle of the night and steal it away,” Moglen said during a press conference. “This is a legal firm not involved so much in litigating and defending as it will be for counseling and advising and nurturing non-profits and to prevent millions of dollars in litigation.”

Litigation support is one of four services to be operated out the center, the others are: asset stewardship, to avoid IP claim conflicts; licensing, for license review and compatibility analysis; and legal consulting and lawyer training, to consult with the public and help train lawyers interested in the GNU General Public License (GPL).

“As the popularity and use of free and open source software increases and proprietary software development models are threatened, providing necessary legal services to open source developers is becoming increasingly important to prevent liability and other legal issues from interfering with its success,” Moglen said.

The center will also play a direct role in participating in the revision to the GPL, which isn’t expected for at least another year.

While Moglen will run the SFLC as chairman and director-counsel, others will guide the center’s activities. Three other directors named include: Lawrence Lessig, professor of law at Stanford Law School; Diane Peters, general counsel at the OSDL; and Daniel Weitzner, director of the World Wide Web Consortium’s (W3C) technology and society activities. Daniel Ravicher, founder and executive director of the Public Patent Foundation (PUBPAT), will take part in the management of the center, as legal director.

Peters told SFLC is already thinking ahead to establishing offices in Europe and Asia, where legal issues around FOSS are a bit more complicated.

“Any time you can give front-end advice instead of litigation advice is beneficial,” Peters said. “We expect to fully be in contact with the larger OSDL members and their general councils as well.”

Peters said the SFLC will also help augment commercial IP protection ventures such as source code investigation companies like Black Duck as well as IP insurance services from Open Source Risk Management (OSRM).

One of the problems facing many FOSS developers is finding and avoiding the use of patented IP in software. With thousands of software patents logged in at the U.S. Patent & Trademark Office (USPTO) and its counterparts in other countries, avoiding infringement, and more importantly litigation, becomes a more difficult task.

Case in point is the current litigation against IBM by the SCO Group . While, at heart, the lawsuit is a contract dispute — IBM allegedly used SCO’s Unix System V source code to bolster the Linux kernel — it’s expected that if SCO wins in its case, it will be able to charge a license fee to anyone who uses the Linux kernel.

In 2003, the Lindon, Utah, company sent warning letters to Fortune 1000 companies and its own customer base, requiring proof their Linux systems were not using its Unix System V source code; if they were, the companies were threatened to pay a $700 per-server license fee or risk violating the Digital Millennium Copyright Act (DCMA). The company took two of its customers, AutoZone and Daimler-Chrysler , to court. Both cases await the conclusion of the SCO v. IBM case.

Where IBM has deep pockets to fund a legal defense, many FOSS projects don’t.

“Both free and open source software face many emerging legal threats,” Lessig said in a statement. “We should be skeptical of legal mechanisms that enable those most threatened by the success of open source and free software to resist its advance. The Law Center will serve as important support for the free and open source communities and for those that benefit from free and open source software.”

Lawrence Rosen, general counsel for the Open Source Initiative (OSI), told that the establishment of a separate legal group is not an admission of a legal problem with using open source software, nor does it mean that SCO’s claims have any merit.

“The more and more that companies adopt open source, the more likely they will have questions about the legal issues surrounding the IP,” Rosen said. “In my opinion, open source software is just as safe as using proprietary software. But for the enterprise, you need to know the legalities of any software before you use it.”

OSDL has been a vocal proponent and supporter when it comes to supporting open source projects and was formed to foster the development of enterprise Linux applications. Linus Torvalds, the Linux kernel creator who works at the lab on kernel-specific improvements to the software, is expected to comment on the role of the Law Center during a roundtable discussion here Tuesday.

Last year, along with Intel , IBM and other companies, the OSDL gathered $3 million and used it to start a Linux Legal
Defense Fund
to help individuals pay for any legal costs that arise because of the SCO case.

Moglen said the SFLC is the next logical step.

“We are in a space where it was a fringe technology that has evolved into source of billions of dollars in value from airlines to banks to artists and advertising agencies,” Moglen said.

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