Open source needs more tech savvy lawyers, Linux Foundation says

But other things can be done to limit the legal challenges in the open source scene today

To avoid legal difficulties when managing intellectual property for open source projects, more tech savvy lawyers are needed, according to the Linux Foundation.

Educating lawyers, however, is not the only solution, argued other open source insiders at the LinuxCon Europe conference in Edinburgh this week.

Open source software adoption is outstripping the legal knowledge of parties involved in open source projects who have difficulty dealing with copyright, patent, licensing and compliance issues, said Linux Foundation Executive Director Jim Zemlin. During the conference's opening speech on Monday, Zemlin said the open source community needs more lawyers who have an understanding of the technology and how open source collaboration works.

Having lawyers with a better understanding of the technology involved in open source projects would indeed be a way to overcome legal difficulties, said Deb Nicholson, community outreach director of the Open Innovation Network (OIN).

"I would agree that having more tech savvy lawyers that understand open source legal issues would be good," Nicholson said. "Smaller companies are desperate to find someone who can advise them," she said, adding that even if they can pay them, finding an attorney who understands the issues can be difficult.

The problem is that most free and open source software projects are becoming more legally complicated, said Catharina Maracke, a lawyer and associate professor at Keio University, in Japan, who focuses on intellectual property law and policy as well as standardization efforts for public licensing plans.

For one thing, open source projects often call for separate agreements for copyrights and patents, Maracke said. Copyright and patent issues are different, and this can cause communication problems for developers and lawyers negotiating related agreements.

Being a lawyer with a consulting practice herself, Maracke sometimes has trouble understanding what developers try to tell her, while there are similar problems the other way around, she said.

This lack of understanding can lead to friction between parties who are trying to manage intellectual property for open source projects, and protracted negotiations can drive up the legal costs, Maracke said.

Educating lawyers isn't the only option, though. To bridge the gap, standardization of legal terms could also be an important step, Maracke said.

While public licenses such as Creative Commons, the GNU General Public License or other free and open source software licenses have emerged as relatively easy-to-use standardized copyright agreements, more work can be done to make licensing easier, according to Maracke.

In an effort to bring more standardization to agreements among developers and licensees, Maracke is working with a team to develop standardized contributor agreements. These are agreements between an open source project and its contributors. The agreements set out what the project can do with contributions to attributes such as code, documentation and artwork.

Contributor agreements should seek to avoid legal problems regarding individual contributions, such as disputes over origin and ownership, and do so without the need for a lawyer, Maracke said. This can be done by transferring the copyright to the project owner or by giving an irrevocable license to allow the project owner to use the contribution.

The new agreements are still a work in progress though. In September, the team released a draft agreement that can be discussed by interested parties.

Standardization could also happen in another way, suggested Nicholson. Companies could, for example, provide an internal executive summary laying out the licenses can be used by various departments, she said. People working in a department could either pick an authorized license, discuss the use of certain licenses with a manager or simply avoid licenses that are not on the authorized list for that department.

Doing this could lessen the burden on whoever has to deal with licensing issues, Nicholson said.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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