February 28, 2008

Inside the SFLC's guide to legal management of FOSS projects

Author: Bruce Byfield

From the concept of copyleft to the status of community projects, free and open source software (FOSS) raises endless legal issues, many of which are subject to rumors and misconceptions floating around the community. To help reduce the confusion for those managing software projects, the Software Freedom Law Center (SFLC) has released a freely distributable guide entitled "A Legal Issues Primer for Open Source and Free Software Projects." Although only 45 pages long -- shorter if you don't count the front matter -- the primer still manages to provide a highly structured introduction to these issues that carefully outlines options and is full of practical advice.

"We actually started working on the legal guide a couple of years ago," says SFLC counsel James Vasile, who coordinated the project. "It was kicked around the office as an idea for providing information to all the people to whom we don't have time to reach out to individually."

In addition, Vasile says, "A lot of times, by the time people come to us for help, they've already made a few missteps. They've already gotten some stuff wrong because they've had a little bit of confusion about how to proceed. So we thought if we could get some information out there, people would be better prepared to operate in the free software world, without even needing our help. Also, by the time they did come to us, they would be in a better position, with better practices to start with and a better sense of what to ask."

The primer was written by individual lawyers at the SFLC, then checked into a Subversion repository for others to revise. "Everybody contributed significantly to each section," says Vasile. "That's why nobody's name is on a specific section. We really regard the guide as a product of the law firm."

Laying down the law in print

The primer's chapters are arranged in the order in which a project's organizers are likely to need the information in them: Copyright, organizational issues (such as whether to incorporate or put the project into a conservancy), patent defense, and trademark considerations. Most readers should not have to absorb more than 7-8 pages at a time -- a relief in a document that introduces so many considerations and points that readers will want to think about before making a decision about them.

To give you a sense of the thoroughness of the primer, the second chapter on organizational issues -- only eight pages long -- covers possible organizational forms -- incorporation, unincorporated association, nonprofit corporation, and umbrella organizations such as Software in the Public Interest -- then launches into a brief discussion of where you should incorporate, the documents and organizational structure you need to incorporate, and how incorporation may limit a project's ability to carry out certain activities, such as political lobbying. The discussion of any of these points is not exhaustive; instead, the chapter lays out what project organizers need to think about and the steps they need to take.

The primer makes few assumptions about readers' prior knowledge. For instance, the chapter on copyright starts by explaining that "all software is subject to copyright" from the moment that it is saved into a file. Similarly, the trademark chapter starts with the statement that "the purpose of a trademark is to identify the source of a product." Such statements could sound condescending, but stating the obvious is often a sound way to begin before wading into legal complexities.

Besides, in legal documents, what sounds obvious often isn't. How many non-lawyers, for example, are likely to know that, in patent law, "selling" refers to any form of distribution, regardless of whether money changes hands? Without knowing such basics, readers could easily come away with a mistaken impression of what they need to consider. Fortunately, the SFLC has done a consistently thorough job of anticipating exactly what readers need to keep clear.

As might be expected at a time when free software projects face legal challenges, the primer includes many pieces of practical advice about how project representatives should act. For instance, in talking about how to deal with a possible copyright violation, the primer suggests that you should start by trying to work with the violator -- a practice honed by investigations of countless violations by both the Free Software Foundation and the SFLC over the years. "Be polite but firm," the primer advises. "It is often the case that licence violations are inadvertent." The primer goes on to suggest that, so long as violators realize that your goal is compliance, not cash damages, they are more likely to settle.

Similarly, in discussing patents, the primer gives practical advice about how you should investigate a patent. For instance, it warns against searching ahead of time for patents on which your patents might infringe, both because developers tend to assume that patents are broader than they are, and also because of the many misconceptions about patents that exist, including that American law distinguishes between source and object code. The primer also cautions projects about taking out their own patents, due to the expense of the process. Should it become necessary to investigate a patent, the primer suggests that you investigate the claims at the end of the patent first, and remember to read the file wrapper -- the history of correspondence between those applying for the patent and the patent examiner -- for information about possible limits to the patent. The discussion then continues with a list of possible defences when accused of patent violation, including non-novelty, obviousness, and unenforceability. Although these points are outlined only in the briefest form, readers can hardly help but take away a stronger sense of such issues. In fact, even those who have some experience in the matters covered by the primer can benefit simply by seeing all the considerations laid out so clearly. They might well learn -- as I did -- that they have a few holes in their knowledge.

Cautionary words

"A Legal Issues Primer for Open Source and Free Software Projects" is not always an easy read. Like a lot of prose written by lawyers, it tends to include long and complex sentences -- a tendency that is probably heightened by the need to summarize the intricacies covered. Also, although distributed as a PDF file, the primer is designed as a print document, and could use links to the sources of further information it gives. In fact, a summary of online resources for each section would make a useful appendix in future editions.

Non-Americans should keep in mind that the primer is specific to United States law. Although much of its information should be relevant regardless of your country of origin, the details may be different for you than the ones given in the primer -- particularly in the chapter on patents.

Nor is the primer comprehensive. For example, although it discusses BSD-style licenses and different variations of the GNU General Public License (GPL), including the Lesser GPL and the Affero GPL, it doesn't touch on the Apache License, nor are the differences between the second and third versions of the GPL raised except in passing.

These points aside, the current version of the primer is well worth reading for anyone needing an introduction to the legal concerns of free software, and its worth will only improve with time. "The document is an ongoing effort," Vasile says, "and we'll be continuing to add sections to it." Already, additions to cover more licenses, copyright legislation, and procedures for accepting code into a project are being considered. But Vasile adds, "If there are specific questions that people would like us to address, they're always welcome to email us."

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