November 12, 2008

Portrait: FOSS legal leader Andrew Updegrove

Author: Tina Gasperson

Attorney Andrew Updegrove specializes in technology, intellectual property, and standards. While other lawyers can make the same claim, few have his credentials -- maintainer of an online repository about standards consortia, former board member of the Linux Foundation, and progenitor of a major open source license.


Updegrove says his introduction to open source included his unwitting participation in a seminal licensing discussion. "It was probably in 1993 that Bob Scheifler, the executive director of the X Consortium, emailed me to say that he needed a new kind of license to make the software available to whoever needed it." Updegrove and Scheifler went back and forth a few times to get the verbiage on the new license just right. "Eventually the X Consortium was merged into what became The Open Group, and I pretty much forgot about that license. It wasn't until a few years ago that I realized that the license Bob and I had created had been picked up and used by lots of other people as well, and came to be known as the MIT License."

Since his work with Scheifler, Updegrove has come to appreciate the importance of open source and open standards, and especially their use together. "Standards have been around for thousands of years, in the form of weights, measures, and coinage," he says. "Agreeing on standards makes networks possible, from railways to the Internet, and we reap enormous benefits as a result." Even standards like the size and shape of light and electrical sockets, battery sizes, and all sorts of other commodities make it possible to have price and quality competition in the marketplace, Updegrove says.

"With the marriage of open source and open standards, the concept can be radically extended, because now individuals and entities come together in self-directed communities to create actual products, and not just the standards for products. The power that this can have for sharing opportunities to those in emerging nations is enormous."

Even proprietary software is made better by open standards, says Updegrove. "Standards level the playing field, and this allows for much more competition to the marketplace. Look at OpenDocument Format (ODF), for example. Microsoft had the desktop locked up until this standard came along. Now you've got a variety of FOSS and proprietary office suites out there, and they can all compete with each other at levels above the standard. But because they all embrace the standard, you'll never be locked in to any of them, so each of them has to keep improving to hang on to you. And in the meantime, you can exchange your documents with anyone."

Updegrove hasn't scratched the word 'proprietary' from his vocabulary just yet. "We have represented a lot of proprietary software companies over the years. I don't see the world as being simply a 'proprietary equals bad, FOSS equals good' reality, although certainly proprietary software vendors, and especially dominant proprietary software vendors, have the power to cause some serious mischief. I think there's nothing wrong with proprietary software per se. After all, in most cases no one has to use it, especially where open standards prevail." And there just aren't enough FOSS developers around to create enough software to replace all the proprietary stuff, he says. "I think there's an awful lot of economic adjustment that would have to occur incrementally for that to happen." But Updegrove uses his position to make the case for openness. "I absolutely advocate for both open source and open standards to my clients whenever it makes sense to do so."

A history of accomplishment

Updegrove says he is an entrepreneur at heart. After he attended law school for a year, he dropped out to start a stained-glass business after studying the art for three nights. "I was able to teach myself the craft and turn it into a successful business, doing studio pieces as well as major architectural and restoration work." He loved the design aspect of the business, and found that he'd have to hire people to do the more mundane tasks associated with the business, like fabrication and installation. "I figured if I was going to be a businessman, I might as well be a lawyer, so I finished my degree."

In his daily work, Updegrove represents technology corporations, corporations that depend on technology, and open source organizations. His biography at Gesmer Updegrove LLP says he has represented and helped structure "more than 80 worldwide standard setting, open source, promotional, and advocacy consortia," and spends a large portion of his time advising these clients. "Almost everything we do is tech-related," Updegrove says. "We've represented something like 2,000 startups, and we also represent Fortune 500 companies, government agencies, major universities, venture capitalists, and angel investors."

Updegrove also runs, a "more than book-length" Web site that hopes to provide comprehensive news and information on standard-setting, open source development, and forming and maintaining consortia. hosts the Standards Blog, the Standards MetaLibrary, a news portal, and a book-length how-to document for open standards and standards setting. "Everything at the site is free, and it serves over a million page views a month.

"It started as simply a pragmatic answer to an otherwise insoluble problem. How does a small law firm in Boston let the 500 biggest companies in the world know that it is the go-to place to form standard-setting consortia and open source foundations? Building the most powerful Google magnet was the obvious answer. After that, it became something of an obsession." Updegrove wryly points out that the United States city with the highest number of readers is Redmond, Wash.

Updegrove has served on the board of directors for the Linux Foundation and now serves as its legal counsel, where he says his role is that of an advocate for both open source and open standards. "Most people tend to be part of one discipline or the other, and there's not as much understanding as there needs to be between them. While the goals are in harmony, what makes each work has some serious conflicts. Most obviously, the right to change the code is central to the concept of FOSS. But the only thing that makes open standards work is the agreement to do some things exactly the same way -- always. That's oil and water, and it therefore takes some understanding on both sides to make things work. Since the Linux Foundation is active in both open standards and open source, it's an ideal test bed to work through things like this."

He doesn't like software patents. "I'd be happy if they were to disappear tomorrow, as I think that they have zero relationship to inspiring innovation, which is the only rationale for the governmental grant of monopoly power to an inventor to begin with. On the flip side, they cause way too many problems, and there's plenty of protection to be had already through copyright and trade secret laws. Entrepreneurs are driven to create things, whether or not they can get proprietary protection. Look at the thousands of people who spend (and usually lose) their life savings every year to start new restaurants, just so they can work for themselves. Big companies will continue to innovate with or without protection, because they have no choice. They need to innovate to differentiate themselves from their competition."

Looking to the future, Updegrove says there are exciting things happening, but vigilance is important. "The Internet, open source, and open standards are opening doors that hold enormous promise. But we need to keep in mind that we can lose as much as we gain in making the transition, if we're not careful. Absent reliable digital archives and long-term supported file format standards like ODF, we could literally lose our past."

In fact, he takes it a step further. Updegrove says that the Internet has become so important that without accessibility, we may lose our basic human rights. "After all, do you exercise freedom of speech and freedom of association more online or face-to-face today? Do you go to the town hall, or go to its Web site? Open standards and open source [are] essential tools that can guarantee cheap, accessible exercise of our civil rights."

Our Portraits series seeks to profile individuals who are doing interesting things with free and open source software. If you know of someone you'd like to read about, please let us know.


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