A theme of major disruptions on the horizon for the software industry, and a future that is open for both the IT industry and its legal advisers to shape, emerged from the Open Source Summit held in London on 9 November 2007.
We don't usually big up other law firms, but all credit to Olswang and Greenberg Traurig for putting together such an excellent event and cast of speakers.
Here is a summary of some of the key parts of the day. There are multiple ways of referring to free software/open source, and in this post I use the acronym FOSS (free and open source software).
Keynote: innovation goes public, Bruce Perens
Bruce Perens is a controversial figure in the FOSS world, as lauded as he is criticised. Perens got the day off to a good start, drawing an analogy between the FOSS model and the investment markets, and making the case that open source was about the developers, not middle men like Red Hat. He said that GPL licence was best thought of as 'share and share alike' and argued that open source was now self sustaining. On the subject of patents, Perens said that whilst patents worked well in the pharmaceutical industry, the software industry was a different beast and patents did not fit in.
Finally, Perens said that free software and open source had never been intended to be separate movements, and called for the two to come together.
Origins and development of open source and GPL licensing, Heather Meeker, Greenberg Traurig
Heather outlined the key points in the history of FOSS, observing that whereas in 1997 FOSS was for hobbyists, in 2007 it was an industry in its own right. She also noted the similarities between 'copyleft licensing' and commercial OEM agreements, with the key difference between the two being that whilst in copyleft, source code was freely provided, with OEMs, the source code was a trade secret. Meeker also suggested that the IT industry had started off on a semi-open source basis - in the 1960s to 70s, giving source code with the object code was normal practice - and was now, in this respect, going back to its roots.
IPR and patents, Jim Markwith, Microsoft
The subject of Jim's talk was his experience as Microsoft's Open Source Counsel, which means he is involved with a lot of the company's acquisitions of other software businesses. For companies that Microoft acquired in 2007, on average 30% of the code acquired was subject to some kind of reciprocal licence. This code lead to various legal and security issues, but Jim emphasised that these issues didn't have to be 'deal killers'. Jim also talked about achieving interoperability and open standards.
Whilst Jim's talk wasn't about software patents, having one of the biggest names in the software patent arena - and one that has made threatening noises in the past to the FOSS community about patent infringement - was bound to bring this subject into the day's discussions. And so it did, on a number of occasions throughout the day, and many of the other speakers mentioned or discussed this issue, often with a link to the Redmond giant.
M&A, Joint Ventures and IPOs, Kat McCabe, Black Duck, Nigel Swycher, Olswang
Swycher, a corporate lawyer, spoke about the implications of FOSS for M&A, joint ventures and IPOs. Key messages were that good due diligence combined with good quality information leads to a smooth transaction, and that a structured approach was required for warranties for FOSS within a business.
Kate McCabe of Black Duck software talked about the role of third party code assessors such as her business in due diligence for purchasing and selling software companies and other technology heavy businesses.
Commercial Licensing Models, Jan Wildeboer, Red Hat, Pieter Hintjens, iMatrix
Wearing the famous-in-geek-circles red hat, Jan Wildeboar of Red Hat talked about the company's philosophy and aims as a FOSS vendor. The company viewed the defeat of the Computer Implemented Inventions Directive as a victory, and the EPLA as a dangerous backdoor metho?d of bringing software patents to Europe by having a centrral patent court to harmonise national law. On software patents, Jan's view was that they simply do not work.
Pieter Hinjens of iMatix, a company that licences its software under permissive licences such as GPL, shared similar views on software patents. He noted that the US triple damages rule (which applies where someone knowingly infringes a patent) effectively means that companies deliberately avoid reading patents, meaning that the system is 'wrong'. After this comment, it was unsurprising to hear that Hinjens views software patents and the EPLA as the biggest threats facing FOSS.
Corporate open source policies, Dietmar Tallroth, Nokia
Dietmar delivered a sensible and clearly well thought-out overview of the issues that businesses need to consider when developing corporate open source policies, a role he has performed within Nokia since 2000. He emphasised that respect within a business for FOSS, in terms of code, values and licence compliance, was of critical importance.
He also showed us a photo of a very cool looking prototype Nokia internet tablet, which used FOSS, with 160 licences at play and over 6000 dependencies.
Open source in the mobile world, David Wood, Symbian
Wood spoke about the company's attitude and approach to FOSS. Symbian, whose mobile phone operating systems are used in 70% of current smartphones, views FOSS as being one of a number of 'disruptive trends' for the company, and probably not the most significant of those trends. The company uses open source software where it is 'best of breed', but only where the software is under a permissive and not reciprocal licence.
Open source adoption in the UK, John Powel, Alfresco Software
Alfresco is a UK based company that has, using FOSS methodology, managed to create an enterprise system that is now regarded as one of the best in the industry. Being FOSS based means that individuals can use the Alfresco software at no cost, that the company can generate income from corporate users, and that a developers community has emerged that does a lot of work on the software (including translating it into over 20 languages).
Powel spoke of the impact that FOSS can have on local communities, meaning that the UK can compete with the USA on a level playing field despite not having the same degree of marketing power for its products.
He also commented on how the UK government is lagging behind its EU counterparts in the use of FOSS, with no major use of FOSS. This compares unfavourably with other EU countries.
The future of openness, Graham Taylor, Openforum Europe, Michael Robinson, Deliotte
Whilst the day so far had been about open source, with many different interpretations given of what 'open source' meant, Graham's talk concerned 'openness' and its economic benefits. A lot of emphasis was also placed on the disadvantages of being 'locked in' to IT suppliers, a problem he said affected a large proportion of public and private sector organisations in the UK.
Michael Robinson of Deloitte MCS discussed the consultancy firm's work moving the back-office system for Oyster Online, the online site for the Oyster card, from a proprietary system to an open model. Linking in with the theme from the previous talk, the key problem with the proprietary system he identified as 'lock in'; being reliant on a small supplier base for the system. As a result of the move, Michael said that Oyster Online had made operational savings of 80%, meaning that all development costs would be paid off within a year. In addition, the new system had improved resilience, scalabiliity, flexibility and security.
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