| Finding the right open-source savvy lawyer |
Apr. 06, 2008
Some days, like it or not, you need a lawyer. For most business purposes, picking the right law firm isn't usually that big of a deal.
Chances are you already have at least an idea of how to find a contract lawyer, a tax law specialist or a real-estate attorney. But what if your programmers are using open-source code that's licensed under two different licenses? What if you're concerned with how a patent might affect open-source software your company is already using? Or let's say a company based in Utah decides that you've put its proprietary code into Linux, who do you turn to then? Now, what should you be looking for in a law firm?
Darn good question. Here are some of the answers you'll need if you find yourself in a spot where you need someone who knows both IP (intellectual property) law and FOSS (free and open source) licensing.
John Ferrell, a founding partner of Silicon Valley IP law firm Carr & Ferrell, suggests that "Finding a good lawyer is like finding any good professional. Getting a referral is the tried and true, most reliable path to finding good help."
But what if you don't know anyone who can help? In that case, Daniel B. Ravicher of the SFLC (Software Freedom Law Center) and the newly formed firm of Moglen Ravicher admits that "there are no pat answers. As with choosing any service provider, clients should investigate their options, do background reviews, interview the potential service provider and then ultimately go with who they think is best for them."
"Frequently," Ravicher added, "issues like cost and location matter, as well as other idiosyncratic needs or wants of a particular client, so what might be the best choice for one is not necessarily going to be the best choice for another."
Ferrell agreed. "It's especially important to find the right individual to work with, not necessarily a specific firm, when working in a highly specialized area. Find someone who fits your chemistry, and who has the time and interest to give you the level of service you need," he said.
Ferrell also recommended that you "Look for domain expertise; find a lawyer who represents other open-source companies like yours. A background in computer science or engineering is often very helpful, but there are many good software experts who do not have formal programming training or experience. Patent attorneys who practice in the computer area are very likely to have GPL experience and expertise."
Noted open-source lawyer Larry Rosen, a partner in the law firm Rosenlaw & Einschlag, also suggests that "there is no way that a small firm can provide the wide range of services that are available at large firms. But that's why some of us prefer being in small firms. We can focus. We can pay attention to details. We can get intimate with our clients. And we don't have to pay for large, paneled offices that clients don't want to visit anyway."
If a small firm can't handle your particular problem on its own, that's no reason not to use it, said Rosen. "Those of us who specialize in intellectual property issues will generally be able to handle most legal problems related to copyrights, patents, trademarks and trade secrets--and the business matters that arise in those contexts--but for big cases or special things, we'll associate. Just as in open-source communities, there are open-source lawyers who work together and help each other out in ways that can give clients the feel and security of a bigger firm without the overhead."
Pamela Jones, editor of the IP law news site Groklaw, notes that "law is a specialty field. By that I mean if you want to litigate you hire a litigator. If you want to understand licenses, you find someone who does that. They may or may not coincide. The SFLC is Eben Moglen and Dan Ravicher, and he's been doing the litigating for SFLC recently over the GPL, and he's prevailed so far 100 percent. So they have both."
"If I was looking for a lawyer elsewhere," continued Jones, "the first question to ask yourself is what kind of a problem is it? If it's trademark, for example, you need a different guy than if its patents. Then I'd research them as to their records. Look for conflicts with what you care about. Also look for how often they win/lose and what they specialize in within their specialty. You can do that on Findlaw, among other places. Google is your friend. Local newspapers' archives can help you, too. Word of mouth is a good way to find a lawyer, of course, too."
Patents are something of a special case according to Mark Webbink, former Red Hat general counsel and now a Senior Lecturing Fellow at Duke Law School. "As I often tell folks while I am talking about open source, patents don't care what your licensing model is [open source or binary-only], they only care whether they are infringed," said Webbink.
If the charge being leveled against you that one of your products has infringed a patent, "It is not necessary, for trial purposes, that such legal counsel have any particular expertise in open source. Most such trial counsel will be sufficiently familiar with open source to be able to assess whether there are any special damages issues raised because the code is open source [e.g., if the threatened party has been redistributing the open-source code, they may have exposure for downstream infringement]," said Webbink.
"Where open-source counsel becomes more important is in any settlement/licensing discussions with the plaintiff," continued Webbink. "Depending on the open-source license covering the allegedly infringing software, settlement may be more or less challenging. Non-restrictive open-source licenses, such as BSD and MIT, will not pose any particular problem. Others, such as the Common Public License or Mozilla Public License expressly address patents, including third-party patents. The toughest area will be software licensed under the GPL or LGPL, regardless of what version of those licenses. In those instances, defendants will want to avail themselves of legal services well versed in those licenses to make sure that any settlement they reach will not cause them to be out of compliance with the license. Of course, if they are not redistributing the GPL or LGPL software, this is not a major issue."
Finally, Ferrell recommends that, "Once you identify a candidate lawyer, ask simple questions about your issues. For example, 'What are some of the pitfalls of using open-source software in my product development?' Or, 'How will the GPL affect IP rights I might wish to claim in my own proprietary development?' Or my favorite, 'What's GNU with you?'"
Open-Source Savvy Law Firms
The following list of law firms, which have lawyers with open-source expertise, is in no way complete or meant to indicate any kind of ranking.
Baker & McKenzie
Carr & Ferrell
Choate Hall & Stewart
Cooley Godward Kronish
Cravath, Swaine & Moore
DLA Piper
Finnegan, Henderson
Gesmer Updegrove
Greenberg Traurig
Gwyn Firth Murray
K&L Gates
Kirkland & Ellis
Moglen Ravicher
Morrison & Foerster
Roberta Cairney Law Offices
Rosenlaw & Einschlag
Sites Dealing with Open-Source Legal Issues
Creative Commons
Electronic Freedom Foundation
Free Software Foundation
Groklaw
Ius Mentis-Open Source Software
Larry Lessig
Open Bar
Open Source Initiative
Steven J. Vaughan-Nichols
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