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An Angel for Open Source

by Richard Koman
07/16/2002

My first assignment at O'Reilly was to look into a Clinton Administration proposal to strengthen copyright protections for the cyberspace future. The architect of Clinton's plan was Bruce Lehman, and in my mind, Lehman got what he asked for in the Digital Millennium Copyright Act. One of the leading voices against what Lehman asked for was Pamela Samuelson, a professor of law at the University of California Berkeley. That was back in 1993, and Samuelson has been a tireless advocate for the public's interest in an unfettered Internet, a robust public domain, and fair use laws.

Now she and her husband, along with the Markle Foundation and Mitch Kapor's foundation, have endowed the Samuelson Law, Technology, and Public Policy Clinic at Berkeley's Boalt School of Law. A major focus for the high-tech portion of the clinic will be on supporting open source software development in courts, legislatures, and regulatory agencies.

For a first-hand look at how the clinic and the open source community can work together, attend the birds of a feather session on Tuesday, July 23, at the O'Reilly Open Source Convention, where clinic Director Deirdre Mulligan and Fellow Jennifer Urban will introduce the clinic and listen to what legal services the community wants.

We asked Samuelson to discuss the clinic's interest in open source issues. As she describes it, the clinic will represent organizations that have some stake in a legislative, litigation, or regulatory matter, and provide some assistance, anything from "filing an amicus brief in a case or submitting testimony; writing a report about something; or litigating a case, or defending a case."

Richard Koman: What exactly is the clinic's interest in open source?

Pam Samuelson: We thought the open source community was a good example of an interest that is well-organized in many respects and yet, when it comes to legislation or litigation, it's hard for people doing volunteer open source projects to be able to hire a lawyer. So the clinic is available to represent members of the open source community. Sometimes that might involve drafting licenses, or it might be writing an amicus brief, for instance, in the case of DVD-CCA v. Bunner, which is currently before the California Supreme Court.

Koman: Can you just walk us through that case in more detail?

Samuelson: Sure. The case is called DVD Copy Control Association v. Bunner, and it's probably pretty well known. It grows out of the posting of a computer program named DeCSS by Jon Johansen on Bunner's Web site and the Web sites of other people. The DVD Copy Control Association says that they have trade secrecy interests in CSS -- the content scramble system that they use to protect DVD movies -- and that CSS is a trade secret that Jon Johansen misappropriated when he reverse-engineered the CSS in violation of a shrink-wrap license.

The theory is that Bunner knew or should have known that DeCSS was the product of trade secrecy misappropriation and therefore that Bunner is liable for trade secrecy misappropriation. The trial court issued a preliminary injunction agreeing that DVD-CCA had a trade secret, and that it had been misappropriated by the reverse engineering in violation of shrink-wrap license. The Court of Appeals reversed on First Amendment grounds and this case is now pending before the California Supreme Court. And I think you can see that the open source community has some interest in whether or not these anti-reverse-engineering clauses -- which are so common in mass-market licenses for software -- are enforceable.

Koman: And so there's a First Amendment question that the State Supreme Court will resolve. Are you recommending that the open source community ask for your help in drafting an amicus in this case?

Samuelson: I'm giving an example of something that wouldn't necessarily have come to the attention of particular open source developers, but that has pretty profound implications for the open source community. What the clinic is trying to do is open a conversation with some people in the open source community so that if and when we spot a case or a piece of legislation that might have implications for the open source community, we're able to do something to represent the open source community's interests in this area.

Koman: And they haven't been particularly able to take part in the legislative or legal discussions very well.

Samuelson: There's no reason why they can't. It's just that, unlike the companies that make proprietary software, it's hard to afford your own lobbyist.

Koman: And by their very nature, they're not in an organization where they can send something off to legal. And so what has been the response of the folks you've talked to?

Samuelson: Well, we had a very terrific meeting with Tim O'Reilly and with Mitch Kapor. Mitch, as you probably know, has an open source application foundation, and we've been talking with Mitch about some things that the clinic might do for the open source community. One idea that Tim and Mitch were excited about was the idea of amicus briefs on behalf of open source groups.

In that particular case, all the briefs are about to go in, so it may be too late to represent the open source community on that one, but things like this come up pretty often, so it's really a good idea to try to have some sort of ongoing relationship so that we can have a dialogue about what things are coming up.

Another thing that [Tim and Mitch] were very excited about was the prospect of some open source community participation in legislative efforts to improve the patent re-examination system. This is something that would be beneficial for open source developers if they think that they know of prior art that would defeat a patent. Right now, there is too little interaction between the person who asks for a patent to be re-examined in order to be able to challenge it, and a patent office that is going to conduct the re-examination. There's legislation pending right now that would make the re-exam process more like a hearing, and that would be beneficial, I think, to the open source community.

So one of the things that the clinic could do is essentially write a letter or a proposal that either supports the legislation or says, well, in addition to the things that the bill already does, it should do this, this, and this. This is a really low-cost way of trying to challenge patents, by comparison with the litigation system, which, as you know, is a really, really expensive and difficult process for the open source developer who wants to challenge a patent.

The third project that we got pretty excited about was the idea of having some sort of Web site where we would annotate open source licenses, so that people could have a clearer sense about what are the implications of some of the terms of the licenses. Open source licenses are probably more readable than most software licenses, but there is still some boilerplate that people use in their licenses that they may not even really understand. So, if there were a Web site to translate into plain English what some of these terms mean and what some of the questions are regarding whether they're enforceable or not, that might actually be of some benefit to the open source community.

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