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An Angel for Open Source
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Koman: What is your impression of the commercial software sector using open source licenses or shared source licenses?



Samuelson: Well, one of the reasons I think that this idea of a Web site with annotated "open source licenses" might be a good idea is to help the open source community dispel some of the myths -- so to the extent that Microsoft said X, Y, and Z about open source, the clinic might be able to provide some counter-balancing of the legal principles that might suggest that's wrong. And I think that this is a place where the open source community has done a pretty darn good job, articulating its interests and doing work that it considers to be useful. And I think it has been unfairly disparaged by some of the commercial interests.

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One of the things that the clinic might also do is try to work with the open source community to help refine the message so that the U.S. government would find amenable the idea of using more open source software. Right now there's been some kind of lobbying and pressure on the government not to use open source software, and it seems to me that actually there's a very good set of reasons why the government should use open source software. I'm trying to help refine that message and this involves some legal analysis, because there's some very comprehensive federal acquisition regulations that guide how the government licenses software and other kinds of technical information.

Koman: This is another area where you can take part in the regulation process?

Samuelson: This is another place where we have some expertise that might be helpful in translating concerns that people are raising, and seeing whether they're valid or whether they're, in fact, not valid.

Koman: Are you working at all with the commercial open source vendors?

Samuelson: I have an open mind about doing that. I mean, it seems to me that the commercial open source developers, for example, have the same interest in a better patent re-examination system as the nonprofits do. To the extent that we want to, for example, write an amicus brief on the importance of reverse-engineering to the open source community, it seems to me that commercial open source developers have the same interests as the others. Now, there may be some places where they have somewhat diverging interests, but it doesn't seem to me that the commercial open source people are outside the ken of what we're up to.

Koman: As far as EFF's ability to function as the public interest lobbying group, it seems like your legal and regulatory consulting could really boost their effectiveness.

Samuelson: Well, EFF is doing a lot of really challenging things, and they can't do everything. And they also don't have the same depth of expertise in certain areas, such as intellectual property, as places like Berkeley. And so we've been trying at the clinic to work in conjunction with organizations like EFF, and there are times when the clinic, for example, will write an amicus brief that supports a position that EFF is taking in litigation.

So, for example, in this DVD-CCA v. Bunner case, I've written an amicus brief on behalf of a bunch of law professors and the Computer and Communication Industry Association, which basically argues that the court should affirm that reverse-engineering of a mass-marketed product is a proper means of obtaining a trade secret, and they should disavow the notion that breach of an anti-reverse engineering clause in a mass market license should be enforceable. And that's a brief that I wrote because I believe it. It happens to be a case where EFF is among the counsel for Bunner, and so this is a nice example where the clinic and EFF can kind of work together on certain things.

Koman: In the matter of presentation of the open source message, you mentioned that confusion over different licenses could be addressed by a Web site, and you also talked about improving or fine-tuning the message that gets out to Washington or to the public at large...

Samuelson: And you mentioned, in the mail you sent, that speech by (Rep.) Howard Berman (D-California). That legislation is going to be before Congress this summer. The open source community has some interest in these rules that would affect peer-to-peer networks, and the question is, how is the voice of the peer-to-peer open source developers going to be manifest in Congress? And this is another place where it may be that the High-Tech Clinic can do something to help.

Koman: Right. Basically, Hollywood has Congress' ear, and can make things -- like this Berman bill -- happen relatively quickly.

Samuelson: Well, they are good at getting the legislation that they want introduced, and all too often, they've been able to persuade Congress to pass it. It doesn't seem to me that the Berman bill is going to pass tomorrow, but it is something to watch out for and to be concerned about, and it will certainly have an impact for open source developers.

Koman: And as you mentioned, it's less expensive to succeed at the legislative stage than at the litigation stage.

Samuelson: Well, it may be. That's right. I mean, for example, if we can find somebody to be a good witness to Congress, we can help prepare testimony to argue the open source case. Often, when there's going to be a hearing on something, there's an opportunity for affected industry groups to put together a statement to have included in the record. Deirdre Mulligan, the director of the High-Tech Clinic, is a legislative lawyer. She worked in Washington, D.C., for seven years, for the Center for Democracy and Technology, and she really understands kind of what the legislative process is like and how to intervene and who to talk to and what kinds of documents to prepare that will give you a good shot at getting your message across. And it seems to me that that's something that not all organizations do and frankly, as much as I admire EFF, lobbying is not their strong suit.

Koman: That's an issue. One other issue for me in the open source community is the tendency towards religious extremism, if you will. A mindset and a style that says, you know, there's no role for ownership of code, all code must be completely free and open or it's unusable. For example -- you have a Free Software Foundation mentality on the one hand versus, say, Microsoft's contributions on the other hand, and it seems like one of the problems of the culture is that things get rather extreme relatively quickly, and it's hard to parse the legal language without getting caught up in advocacy and recrimination.

Samuelson: Right. It often seems like a religious war.

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