Moglen plans “general counsel’s office for the entire movement”

Earlier this month, the Software Freedom Law Center (SFLC)
announced its existence. General coverage of the event stressed the Center’s board of directors — virtually a Who’s Who of the legal experts on free and open source software (FOSS) — its initial funding, and the increasing legal threats that loom behind its creation. Yet behind the facts of the news release is a larger story.

In helping to create the organization, Center director Eben Moglen, the framer of the GNU General Public License, is not just looking for a way to defend the FOSS communities against legal threats. Yet he is also looking beyond this potential need. By 2010, he hopes to see the SFLC become the center of a web of associations that will link FOSS projects, tech-savvy lawyers, and corporations, to everyone’s mutual benefit.

Part of the reason for establishing the Center is obvious to anyone who takes an interest in open source software: The copyright and patent issues raised by the SCO cases, the general debates over patent issues, and the growing concern over the last few years about the effects these issues might have on the free and open source communities. However, according to Moglen, the SCO case in particular showed “not that there was something wrong, but, on the contrary, how strong the licensing models were.” He sees the communities as emerging from these controversies with a new maturity and an increased awareness of the need for what he calls “legal engineering” — that is, an understanding of both the technologies and the areas of law that concern them.

Those with the necessary combination of technical and legal expertise are already starting to appear. Moglen speculates that the emergence of this expertise may be connected to the dot-com crash that drove suddenly unemployed people with technical backgrounds into law school. But, whatever the reason, in his role as Professor of Law and Legal History at Columbia University, Moglen has noted an increasing interest and sophistication about free and open source software issues among his students in the last five years. As the director of the SFLC who will be most heavily involved in its setup and everyday operations, Moglen sees the Center’s main purpose as providing a “confluence” in which parts of the communities requiring legal engineering and those who can provide it can meet. Likening the communities to a corporation, he hopes to make the Center into the “general counsel’s office for the entire movement.”

To achieve this goal, Moglen will be working with Daniel B. Ravicher, senior counsel to the Free Software Foundation and founder of the Public Patent Foundation. Moglen and Ravicher plan to staff the Center with new lawyers with an awareness of legal engineering. Internships are also a possibility, although not in the immediate future. They plan to spend the next few months setting up the Center and building a client base, then to hire two to four staff members, starting this summer. Moglen expects — in facts, plans for — a large turnover in the staff. After five years, he anticipates 20 to 30 lawyers will have passed through the Center. By the time these alumni moves on, Moglen hopes that it members will have the expertise to advise both communities and corporations alike. It will also create a loose association whose members can consult with each other as necessary. If the Center is successful, Moglen says, its entire board of directors will have less to do, “because a new generation will emerge.”

In Moglen’s vision, not only will the Center’s clients receive immediate legal assistance, but the lawyers providing this assistance will help to enlarge the pool of those skilled in legal engineering. Rather than companies, clients will be non-profit groups, including software development projects and “people who don’t have another alternative.” The Center will choose its clients according to criteria that are still developing, but are likely to include need and the Center’s best assessment of the strategic value of their legal requirements to the larger communities. For example, one of the clients that has been announced is the Free Software Foundation, which the Center will assist in writing the next version of the GNU General Public License and official versions in languages other than English. Another is the Samba project, whose work on interoperability with Windows is central to the acceptance of GNU/Linux in the corporate world, but which may be especially exposed to legal challenges based on copyright and patent law. Both are long-time clients of Moglen’s, and both perform work that is important for the FOSS communities.

Should the Center turn down clients for any reason, it may still be able to provide seminars or online courses to assist them, or refer them to other legal resources. Four days after the Center was announced, Moglen had received “hundreds of communications” from lawyers volunteering to help. Conceivably, these volunteers could become another part of the association that forms around the Center.

Yet another chain of association is with the corporate members of the
Open Source Development Lab (OSDL). OSDL contributed an initial $4 million to the Center, and will play a major role in directing funds from its members to the Center on an ongoing basis. Diane Peters, general counsel to the OSDL and one of the SFLC’s directors, notes that other sources of funding will probably emerge. However, Moglen seems to prefer to keep the Center at one remove from the funding sources, presumably to keep its independence. At any rate, this arrangement not only frees the Center’s staff and directors from devoting their time to fund-raising, but also gives companies who participate in the FOSS communities a chance to contribute. Moglen refers to this arrangement as “giving to the poor with the consent of the rich.”

Looking ahead, it is also possible to imagine that companies that belong to OSDL will come to see the Center as a training ground for their own future legal staff. If that happens, then by contributing to the Center through the OSDL, companies will be acting doubly in their own self-interest — first by protecting the software that their products rely upon, and second by helping to train their own next generation of legal counsels.

Moglen’s enthusiasm and support for the communities he has assisted for years is obvious in conversation as well as his writing. At the same time, he seems concerned that the informal support of the past is no longer enough, and that he needs to provide for his successors. The Software Freedom Legal Center is his way of continuing his support while planning for the future. “We’ve got the golden egg,” Moglen says. “Now, we’re looking for the goslings.”