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Preview: Law & Life: Silicon Valley

Law & Life: Silicon Valley

A view of law and life in Silicon Valley, the global technology center

Updated: 2014-10-04T17:04:52.857-07:00


Change in Address


I have moved my blog to I hope that you will join me there!

Silicon Valley: Financial Crisis or Opportunity


I just returned from Silicon Valley Bank's Twenty Fifth Anniversary celebration (Silicon Valley Bank is the leading bank for venture capitalists and venture backed companies). It was attended by many venture capitalists and entrepeneurs, so it was a great event to determine the attitude of the Silicon Valley ecosystem to the rapid changes in the last month. Until recently, Silicon Valley had watched the financial meltdown as an observer, but last week the financial crisis reached Silicon Valley. The crisis became very real to Silicon Valley when Sequoia Ventures, one of the most successful venture capital firms, held a meeting for its CEOs announcing that the "Good Times" are over. . They recommended strong measures: cutting expenses very aggressively, raise as much money as possible, establish a heavily commissioned sales structure and become cash flow positive as soon as possible. Further, they suggested that any company without a year of cash in the bank was in trouble.

However, this message of gloom has generated a contrary response from experienced investors such as Alan Patricof, founder of Apax Ventures. . However in a tribute to the respect for Sequoia Ventures and its success, the Sequoia powerpoint has been on the agenda for every Board meeting which I have attended (my friends who are Board members confirm that this discussion is ubiquitous). My experience has been that the Boards have decided that they need to be cautious, but that business will continue. The Sequoia presentation has even generated its own parody.

This view was confirmed by the conversations that I had at the Silicon Valley Bank event. Both venture capitalists and entrepeneurs were modestly optimistic. They believe that the situation is serious, but that the need for innovative products and services will continue. We will all find out in five years, so stay tuned.

Raku Museum: A Japanese Gem in Kyoto


I was in Japan on business for the first week of October visiting my Japanese clients. I always to try extend these trips over a weekend to visit other parts of Japan. I was fortunate to be able to a short weekend in Kyoto this trip. Kyoto is a charming city which is best known for its many beautiful temples and their gardens. Although I was enchanted by the gardens that I visited, the concierge at the hotel also suggested that I visit the Raku Museum Until I visited the museum, I had always thought of Raku as a technique for making pottery originating in Japan which is characterized by low firing temperatures and removing the pot from the kiln while still hot. The results are difficult to predict, but have a special charm for that reason. The ceramics produced using Raku techniques are quite identifiable and striking (many years ago, I worked with ceramics and used the Raku technique).

However when I visited the museum, I learned that Raku was developed in the sixteenth century and is actually the name adopted by the family that developed the technique (the name is based on a seal granted the family by Toyotomi Hideyoshi, the leading warrior statesman of the sixteenth century). The museum is small, with only three rooms, but this size and focus makes it a gem. In fact, the museum is in a building next to the family's kiln. The kiln is still being used. The visit reminded me of several other Japanese museums of similarly small size (all very focused) which I have visited. They appear to form a special class of museums in Japan. They are well worth the effort of seeking them out. If you are in Kyoto, you should visit the Raku Museum and when in Japan you should try to visit its other small museums!

Competing with Open Source: Strategies by Harvard and Stanford


You know that open source has arrived as a business strategy when Harvard and Stanford professors write papers about how to compete with the open source model (although the article covers all free goods).

In their words:

It’s not easy, and it’s more than just a theoretical question. U.S. newspapers are finding it difficult to compete with free news and the commentary of bloggers and other internet sources. And in the software world, the rise of open source products, which are available for free on the internet, is reshaping the technology industry.

“Divide and Conquer: Competing with Free Technology Under Network Effects,” Deishin Lee and Haim Mendelson, Production and Operations Management, January-February, 2008

They mention three strategies for commercial companies to compete with "free" products:

1. Timing

2. Product features

3. Network effects across other markets.

Thanks to Matt Asay on finding this article and his insightful commentary.

Open Source Think Tank Paris 2008: Day Two


Unfortunately, computer problems (my hard drive died) and travel have delayed my summary of the second day. First, we ended the first day with a magnificent dinner cruise on the Seine River. Our hosts, Alexandre and Celine arranged for a sommelier to select special wines for the cruise which meant that we had great wines from all over France. On the second day, we focused the brainstorming sessions on Open Source Licensing and the Definition of Open Source. The licensing discussion was lively, with the European attendees focusing on the challenges imposed by the number of open source licenses. During the licensing discussion, they were particularly interested in the effect of the Jacobsen decision which clarifies the enforceability of open source licenses in the US, an issue was viewed as settled in the European Union.

The discussion of the definition of open source ranged from who should control the definition to whether a new group, focused on commercial open source should be created to provide guidance about how to determine whether products (or companies) are “open source”. The consensus was that OSI definition has served the industry well and should continue to be the core definition and that a new non profit focused solely on commercial open source is unnecessary. The discussion about whether a company can be considered “open source” was very interesting. Most attendees agreed that it is very difficult to meaningfully designate a company as “open source” because most companies follow a variety of approaches to software development and distribution. The better approach is to focus on products as following an open source model. An interesting side note to this discussion was the conclusion that all companies are now following a “hybrid” business model which includes both proprietary and open source products. Even Microsoft is now part of this trend. This conclusion is consistent with the results of our 2008 Napa Open Source Think Tank that open source software is now becoming part of the mainstream. The final presentation was by Rudy Salles, the Vice President of the French National Assembly. Linagora had assisted the French National Assembly in implementing an open source environment and Mr. Salles discussed open source from the point of view of both a user and a policy maker.

The Open Source Think Tank Europe was a great success and was particularly useful in helping the US companies understand the European perspective. We hope to see you there next year!

Open Source Think Tank Paris 2008: First Day


The first day of the Open Source Think Tank has been very productive. Alexander Aitken of Olliance Group and Alexandre and Celine Zapolsky (both of Linagora) have done a great job in organizing the conference. The discussion has quite different from our Napa Open Source Think Tank and emphasized the differences between the US and EU software industries. For example, system integrators are the primary contact for European customers in contrast to the United States where the software vendor frequently has direct contact with the customers.

During the brainstorming, my group identified two major challenges for the open source market:

1. The rejection in the EU of commercial open source companies by many customers because they are not viewed as "true open source". Based on the discussion, a significant number of customers in the EU identified "open source software" as a product which is community supported and preferably has multiple service providers providing support to licensees. Clearly, this position poses a significant challenge to many of the US commercial open source vendors which use a dual distribution model based on a commercial product with more functionality than the open source version.

2. The reluctance of major corporations to "openly" contribute to projects. Although many major corporations do contribute to open source projects, they frequently do so in an indirect manner so that their contribution cannot be associated with them. If the corporation does not contribute its improvements to the open source project, then the community and all licensees will not be able to take advantage of the changes. If the corporation contributed indirectly, the open source project misses the legitimacy which open support would confer. Although this reluctance can be based on valid legal concerns, these concerns appear to be exaggerated.

More tomorrow!

Open Source Think Tank: Paris September 21-23, 2008


I wanted to alert you to the Open Source Think Tank this month in Paris Sept 21-23, in conjunction with the Paris Capital du Libre conference. It takes a lot to pull me away from Northern California during the grape harvest, but this event will be great. As in the United States, the Open Source Think Tank is the only by-invitation gathering where leading global experts will come together to collaborate on the issues facing commercial open source. Like the Open Source Think Tank in Northern California, the format will focus on brainstorming sessions, CIO panels and networking activities. We expect that all attendees will actively participate. We have a great agenda and confirmed list of attendees, and unique networking activities including a private reception at the Paris Chamber of Commerce and the main event - wine tasting and dinner while cruising down the Seine through Paris. We have some great speakers including Marten Mickos and Larry Augustin. You can learn more at If you need an invitation, please contact Andrew Aitken at

I have participated with Andrew in all of the prior Open Source Think Tanks and they are great events. They provide an opportunity for everyone to work together in small and large brainstorm groups, addressing the future of open source. The Think Tank will also ensure that you have great opportunities to network with your fellow attendees. In Paris, the first night we will have a reception at the Paris Chamber of Commerce and the second night main event, wine tasting and dinner while on a barge cruising down the Seine through Paris

Most of the attendees of our annual Napa events have said it was either the best or one of the best events they have ever attended and we have almost 100% return attendance. In Paris, the schedule will include analyst meetings, press events (Sun and Jaspersoft and some of the other attendees are planning announcements) and a meeting of North American ISV and European SI/VAR.

I hope to see you there!

DEMO: Web 3.0 and Beyond


I have been attending DEMO on San Diego since Sunday. The presentations have been lively and the six minute limit ensures a brisk pace. Having worked with startups for over 25 years, I was impressed by the maturity of the “demos”. The presenters manage to get their message across (frequently with a few jokes).

Many of the companies focus on “Web 3.0” (and one company claimed to be the first Web 4.0 company). Two of the most interesting companies provided solutions to the problem of user generated content: how do encourage users to continue to contribute without any income. They combined the web’s capability for distributed collaboration with micropayments. This combination could be very powerful, enabling user generated content to go to the next level: income generation.

Photrade ( has developed the infrastructure to permit photographers to share, store, protect and license their photographs to advertisers and web publishers. Photographers get paid for each view of their photos.

MixMagicMusic Service ( provides all the tools needed for musicians to collaborate online. They can also communicate with fans and sell their works. It includes a Remix Wizard to permit fans to create music mashes.

However, some of the most interesting companies were not material companies, but more about that later

Practical Guide to GPL Compliance: Both Practical and Valuable


The Software Freedom Law Center (“SFLC”) recently published “Practical Guide to GPL Compliance” (“Guide”). Guide is a major contribution to the open source community. It is very clear and valuable explanation about how to comply with the obligations in General Public License Version 2 (“GPLv2”), General Public License Version 3 (“GPLv3”), Lesser General Public License Version 2 (“LGPLv2”) and Lesser General Public License Version 3 (“LGPLv3”) and more generally how to best manage the use of FOSS.

The most critical point made by the Guide is the need to understand what third party open source software is in your software product in order to comply with obligations under FOSS licenses. However, companies should be equally concerned about complying with the terms of upstream proprietary software licenses. The Internet has made numerous software components easily available and my experience is that most software programs now include numerous third party components (both open source and proprietary).

Yet software companies frequently do not have an effective procedure for managing this new reality. This failure can raise significant problems at critical points in a company’s history, such as a financing and a merger. Many acquiring companies regularly perform a software scan of the target company’s software: they will discover these third party components and demand that the target company provide proof of compliance with the upstream licenses (both FOSS and proprietary). The failure to have a procedure for monitoring use of third party software means that the target company must scramble during the merger (or financing) process to prove compliance with upstream obligations. These problems are likely to cause delay in closing the merger (or financing) and, in some cases, may cause a reduction in the price or, rarely, termination of the merger. Recently, I assisted a startup in its sale to a large publicly traded company: the target company had over 100 third party software components of which it was not aware. We had to find a method to comply with the obligations in these upstream licenses in a very short period. The result was costly in management time and legal fees (rush jobs always cost more). In that case, however, the resolution of compliance with the obligations imposed by third party proprietary software component licenses created more problems than the FOSS components licenses.

The Guide is also very valuable for its practical suggestions about how to avoid compliance problems with the GPL such as training multiple developers how to “build” the software and distributing the Corresponding Source with the binary code (rather the alternative of making a written promise to provide the Corresponding Source). The Guide also provides detailed instructions on how to comply with the obligations relating to providing Source Code: the definition of Corresponding Source and the different options available under GPLv2 and GPLv3. For example, one nuanced, but important point is that Corresponding Source under GPLv2 cannot be provided solely by download (although it can be an option), but that option is available under GPLv3.

I strongly recommend that anyone dealing with FOSS compliance should read this guide.

Jacobsen: Critical to Commercial Software and Other Copyright Licenses


Although my earlier post focused on the effect of the Jacobsen decision for the open source industry, the case has significantly broader implications. The court’s reasoning applies to any copyright license which means that it will have an impact on licenses well beyond open source licenses: it will impact licenses for commercial software, books, music, television, and movies. The decision will also be important for licenses which govern the growing amount of user generated content on the Web; such content is frequently subject to standardized licenses, such as those created by the Creative Commons and websites like Wikipedia, which do not involve direct economic consideration. The decision sets forth the basic rule very clearly:

“Copyright licenses are designed to support the right to exclude: monetary damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes rather than as a dollar-denominated fee, is entitled to no less legal recognition.”

Jacobsen deals with the fundamental issue of the appropriate remedy for breach of a copyright license: the basic remedy for breaching a contract such as a license is monetary damages, but under some circumstances a copyright licensor can obtain remedies under copyright law. The courts have established a standard that the breach of obligations that are covenants rather “conditions” or “restrictions” on the scope of the license can only obtain contract remedies. However the line between covenants and “conditions” or “restrictions” has always been murky. The decision provides clear guidance: obligations in a license agreement which are expressly described as a “condition” or, even better, which are introduced by the phrase “provided that” meet the criteria in Jacobsen.

Copyright law remedies include injunctive relief, attorneys fees, actual damages and, potentially, statutory damages. The remedy of injunctive relief is particularly valuable for many licensors because such licensors frequently seek compliance with the terms of the contract. Courts may grant attorneys fees at their discretion and such fee awards can be significant and even exceed the damage awards. Actual damages can be difficult to determine for many copyrightable works and are particularly difficult for breaches of licenses to open source software or other works which are licensed without fee. Statutory damages,on the other hand, are not connected to actual damages and can be as much as $150,000 per copyright for willful infringement and are awarded by the court. However, such statutory damages are only available if the copyright is registered prior to the infringement (or in the case of a recently published work, the copyright is registered within three months of first publication).

Since many open source companies use the dual license model, the decision may be equally important to them for their commercial licenses. In addition, the decision will be important for software vendors with a pure commerical model as well as licensors of other copyrightable works such as books, music and film. These licensors should read Jacobsen carefully and revise these licenses appropriately to take advantage of the new clarity on these issues provided by the decision.

Major Victory for Open Source in Jacobsen Decision


On August 13, the Court of Appeals for the Federal Circuit (CAFC) issued its decision in the Jacobsen v. Katzer case.
This case was the first real test of the remedies for breach of open source licenses in US courts (for more background, see Unfortunately, the District Court decision was wrong and wrong in a way that could have been a disaster for open source community. The District Court found that the requirements in the Artistic License for notice were merely a contractual covenant rather than a condition on the scope of the license (the courts sometimes use the word "restriction" on the scope of the license and "condition" at other times, but they have the same meaning). Consequently, under the District Court's analysis, Katzer's actions were not copyright infringement. Thus, Jacobsen was limited to the traditional remedy for breach of contract, monetary damages, rather than the copyright remedy of injunctive relief (injunctive relief means that the court will order Katzer to comply with the terms of the contract).

The CAFC reversed the District Court's decision and its reasoning is very helpful for the open source community. The court found that the limitations in the Artistic License were "conditions" on the scope of the license and, thus, Katzer was liable for copyright infringement (as well as breach of contract). The CAFC noted that the Artistic License imposed its obligations through the use of the words "provided that" which is generally viewed as imposing a condition. Although the reasoning is limited to the Artistic License and the interpretation of each open source license will depend on the wording of its provisions, this decision is a welcome change to the District Court decision. The case has been remanded for the District Court to determine if the other criteria for injunctive relief have been met, but the CAFC's decision strongly suggests that they have been met.

The open source community should thank the lawyers who worked hard and on a pro bono basis (i.e. free) to achieve this victory. Any such list is bound to be incomplete and I apologize in advance for anyone that I have missed, but I think that the major contributors were: Victoria Hall (Jacobsen's counsel), Chris Ridder and Anthony Falzone (Creative Commons counsel, authors of the amici brief), Karen Copenhaver (Choate Hall, counsel for the Linux Foundation who assisted on the Creative Commons amici brief), Allison Randal and Roberta Cairney (counsel for Perl Foundation who assisted on the Creative Commons amici brief), Larry Rosen (Rosenlaw & Einschlag, who assisted on the Creative Commons amici brief), Scott Peterson (HP, member of OSI's Legal Advisory Council who assisted on the Creative Commons amici brief), David Gross (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief) and Steve Chiari (DLA Piper, counsel for OSI who assisted on the Creative Commons amici brief).

Linuxworld: Looking to the Future of Open Source


Linuxworld was very interesting this year. As Bob Sutor noted, we stand at a crossroads on the development of Linux and open source (see below for Bob’s predictions).

I spoke on Implementing Your Open Source Business Strategy The audience was very interesting: although we had some open source companies, most of the attendees were traditional software companies who are trying to learn about implementing open source strategies. This shift is consistent with my experience working with software companies in Silicon Valley and around the world: open source software is becoming part of the mainstream software industry. We have recently seen this trend among large companies: Adobe Systems, Inc. released Flex and Nokia releasing the Symbian operating system under an open source license. This is consistent with the conclusion of the CEOs and senior executives of the Open Source Think Tank 2008 and the recent Open Source Alliance survey

One of the most interesting presentations was by Bob Sutor from IBM. Bob reviewed the history of IBM’s involvement with Linux and then went on to discuss the future (you can see his slides at His predictions are as follows:

1. The desire to be “green” will drive use of Linux with hardware optimized to reduce energy use

2. Linux will not be replaced by another open source operating system

3. Linux will expand on many hardware platforms but x86 will be less important; the use of Linux will be less visible through SAAS and cloud computing where the operating system is not clear

4. The concept of Linux desktop will shift as Web 2.0 and new technologies will change the concept of desktop

5. The path of SMB adoption is unclear: will they adopt open platforms vs. cloud computing

6. The adoption of new FOSS licenses will probably slow down and the adoption of licenses will focus on the five or six most frequently used licenses, but products will be issued under multiple licenses increasing complexity of legal issues

7. Open standards in licenses will grow and a model similar to Creative Commons will evolve

8. Proprietary applications will be developed for Linux, but some industries (such as education and health care) will continue to develop open source applications specific to that industry

I think that most of these predictions are very insightful. However, I don’t agree with his seventh predictions on licensing. As the General Counsel of the Open Source Initiative for many years and being involved in our efforts to reduce license proliferation, I think that the legacy of multiple licenses (we now have more OSI approved licenses than when I started) will be difficult to overcome. Sadly, I think that we are beyond the point where we can take the rational approach adopted by Larry Lessig in the Creative Commons. The existing licenses have such strong backing that the adoption of a new “cleaner” approach is not likely to be successful. I hope I am wrong, but habit is hard to overcome.

Red Hat: How to Settle a Patent Lawsuit for an Open Source Community


In a recent post, I described at a very general level the patent litigation settlement agreement between Red Hat and Firestar and that the settlement was unusual for its protection of the Red Hat open source ecosystem, not just its own products. am pleased to note that Red Hat has recently published the text of the settlement which I believe will serve as a model for future settlements (in the interests of transparency, my firm does a modest amount of work for Red Hat, but we were not involved in the litigation or drafting the settlement agreement). The settlement is sufficiently important that I am going to write several posts about it and describe it in some detail (non lawyers be warned!). strongly recommend that lawyers who work with open source companies should review the entire settlement agreement because it is a great guide to the special issues arising in settling lawsuits involving open source products. Rob Tiller who was in charge of the settlement provides a "Reader's Guide to the Firestar Settlement" in the Red Hat blog. scope of the settlement agreement is particularly important because of the complexity of many open source products (including Red Hat's products): they include software from a wide variety of sources and the software, in turn, may be modified by any of the licensees. And the settlement must take into account "upstream licensors" of products used in the Red Hat products to avoid an end run by the patent owner. And the scope of the patent license must be carefully drawn to avoid "free riding" because much of this third party software is distributed in third party products which are not Red Hat products. Red Hat does not want to cover uses of third party products when they are not linked to Red Hat products. This complexity undoubtedly created tension in the settlement negotiations because patent owners want to describe the scope of the settlement as narrowly as possible. Red Hat solved this problem by defining the scope of the settlement as including "Red Hat Licensed Products" which includes "Red Hat Products"(which covers more than simply products distributed under the Red Hat brand), "Red Hat Derivative Products" and "Red Hat Combination Products". The relevant definitions are set forth below:"Red Hat Product" means (a) any product, process, service, or code developed by, licensed by, authored by, distributed under a Red Hat Brand by, made by, sold under a Red Hat Brand by, offered for sale under a Red Hat Brand by, sponsored by, or maintained by Red Hat, (b) any predecessor version of any of the foregoing, including without limitation any upstream predecessor version of any of the foregoing, (c) an identical copy of the foregoing or (d) a combination of the foregoing."Red Hat Derivative Product" means any product, process, service, or code that is a direct or indirect Derivative of at least one Red Hat Product. "Red Hat Derivative Product" does not include any Red Hat Product. An indirect Derivative of a Red Hat Product includes, for example, a derivative work based on a derivative work of the Red Hat Product."Derivative" means any derivative work or any other product, process, service, or code that is based on another product, process, service, or code.""Red Hat Combination Product" means any product, process, service, or code that is a combination of (a) at least one Red Hat Product or Red Hat Derivative Product and (b) at least one product, process, service or code portion that is neither a Red Hat Product nor a Red Hat[...]

Microsoft & Open Source: The Battleship Microsoft Continues its Turn Towards Engagement with Open Source


EWeek had an interesting interview with Steve Ballmer that covered Microsoft's view of open source along with other topics after the Microsoft Worldwide Partner Conference. Although Ballmer denies that Microsoft will be "open sourcing" any of its core products, he emphasizes that Microsoft wants to encourage opens source development on its platform (see below):

However Microsoft will support and interoperate with open-source software in various ways, Ballmer said. "Will we interoperate with products that come from like Linux, from the open-source world? Yes, we will," he said. "Will we encourage people who want to do open-source development to do it on top of Windows? Yes, we're proud that the best PHP system in the world is actually the one that runs on Windows today, not the one that runs on Linux.

"So we're going to encourage open-source innovation on our platforms, and around our platforms. And, you know, we see interesting things where bits and pieces of technology, commercial companies are now starting to provide it in an open-source form or to digest in an open-source form. And we're open to that as well. But our fundamental business model will remain kind of commercial software, advertising, enterprise licensing, etc."

As this interview indicates, Microsoft is continuing to move towards engagement rather than confrontation with the open source community. However, remember that Microsoft is a big organization with a very strong culture to which these changes are very difficult. This change will take time and we should expect relapses in their engagement with the open source community. And this change should not be mistaken for adoption of the open source philosophy, rather it is a recognition of reality. Microsoft recognized that the world has changed and they need to deal with the world as it is, not as they wish it to be.

This change does provide an opportunity for open source companies.

Red Hat Settlement and the Open Source Ecosystem


The recent settlement by Red Hat of its patent litigation with Firestar Software, Inc. demonstrates the differences how the cooperative nature of the open source industry requires a different approach to settlement of patent infringement litigation. Open source companies operate in an ecosystem of third party licensors, individual contributors, corporate contributors and users. Red Hat is in the middle of such an ecosystem, with relationships both to its upstream and downstream members. Any settlement of patent infringement litigation in the open source market needs to recognize the importance of protecting the entire ecosystem.

Although the terms of the settlement agreement are not yet public, the outline indicates that Red Hat understands this new reality.

The settlement has three significant characteristics which differentiate its terms from traditional patent settlement agreements:

1. The settlement covers all software licensed under the Red Hat brand, whether developed by Red Hat or third parties. This provision reflects the complexity of Red Hat's products.

2. Although the settlement focuses on Red Hat branded products, the open source industry, unlike the traditional software industry, permits third parties to create derivative works and combinations with other products. Red Hat reports that the settlement agreement covers derivative works of Red Hat branded products and combinations including Red Hat branded products. The scope of this protection will be very important and the actual terms of the settlement will be important.

3. Traditionally, patent settlement agreements cover the company and its downstream distributors and users. However, Red Hat has recognized that this traditional approach would not meet the needs of its community and negotiated a settlement that included the upstream members of its ecosystem. The settlement agreement also covers predecessor products of the Red Hat branded product.

Unfortunately, patent litigation is likely to become more common in the future. This settlement agreement is likely to studied carefully by those who draft future settlements.

ALI Legal Recommendations Could Create New Liability for Open Source Licensors


The American Law Institute ("ALI") has recently published the first draft of the ALI Principles of the Law of Software Contracts ("Principles") . The ALI was founded in 1923 and has a membership consisting of judges, practicing lawyers, and legal scholars from the United States as well as some foreign countries, selected on the basis of professional achievement and demonstrated interest in the improvement of the law. ALI is a very prestigious non profit institution whose purpose is to: "publishes various Restatements of the Law, model codes, and legal studies to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work." These Principles have great potential to clarify the difficult issues of software licensing and, when adopted, will have a significant effect on software licensing. The Principles have been developed by a committee of law professors with limited input from an advisory committee. The Principles are now available for public comment and I want to encourage the community to provide comments on the Tentative Draft (see below). I, as general counsel of OSI, and Karen Copenhaver, as general counsel of the Linux Foundation have written a letter expressing our concern that several of the proposed terms represent very dramatic changes from existing law which are likely to have a very negative effect on the open source software industry. Although a number of provisions in the Principles will be of interest to the open source community, I want to focus on two recommendations which could have a significant negative impact on open source licensors and contributors. The Principles recommend the creation of two new "non disclaimable" warranties which would result in significant problems for the open source community. The warranties are the (1) warranty of non infringement of intellectual property rights (such as patents or copyrights) if the contributor knew or should have known of the infringement and the contributor holds himself out by occupation as having knowledge or skill peculiar to the software and (2) warranty of no hidden material defects. Current law (and all OSI approved licenses) permit the contributor (and any licensor) of open source software to completely disclaim all warranties i.e. promises about performance or non infringement which could result in liability to a contributor or a licensor(so called AS IS provisions).Despite some discussion in the Summary Overview of Section 3 suggesting that these warranties would not apply to open source licensors, the actual language of the first warranty, Section 3.01, would apply it to most open source software licensors and contributors. The relevant section follows: §3.01 Indemnification Against Infringementa. Except as provided in (c) or as excluded or modified under (d), a transferor that deals in software of the kind transferred or holds itself out by occupation as having knowledge or skill peculiar to the software must defend at its own expense any action brought by a third party against the transferee that is based on a claim under the laws of the United States or a State thereof by way of infringement or the like if the transferor knew or should have known of the infringement at the time of transfer. The transferor must pay those costs and damages finally awarded against the transferee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.[...]

2008 Open Source Think Tank: The Future of Open Source


Olliance Group, the leading consulting firm for open source companies, has published the Summary Report from the 2008 Open Source Think Tank in Febuary of this year. The Think Tank is sponsored by Olliance Group and DLA Piper and is an opportunity for 120 leading members of the open source community to come together and discuss the future of open source software. The attendees include CEOs of Open Source Software companies, CIOs of large companies, venture capitalists, attorneys and other luminaries.

The Summary Report focuses on three major themes:

1. Open source software companies are recognized as a viable strategy for building a software business. The past skepticism has been washed away by the increase in venture capital financing for open source companies and the significant acquisitions of open source companies last year, including the acquisition of Zimbra by Yahoo and MySQL by Sun Microsystems, Inc.

2. Open source software vendors have matured sufficiently so that client expectations are that open source vendors should maintain the same standards as traditional commercial software vendors. Open source vendors, like commercial software vendors, must ensure that they address the entire product lifecycle, from support and maintenance to integration and work with third party products.

3. Open source software vendors need to mature and deal with the confusion and, sometimes fear, about the the risk of using open source software. The attendees expressed concern about the dichotomy between the ubiquity of open source software and the lack of recognition of companies of such widespread use.

Please read the Summary Report and we hope to see you next year at the 2009 Think Tank.

Venture Capital Funding for Open Source Shows Significant Increase in First Quarter


The Venture Capital Journal noted in its April issue that investments in open source software increased dramatically in the first quarter of 2008 to $112 million from $200 to 250 million each year. The VCJ attributes this increase to the demise of the traditional multi year enterprise software licensing model as well as the recent very successful exits by open source companies such as MySQL and Xensource. One of the most significant advantages of the open source business model is the reduction of the cost of sales and marketing. For example, Amit Pandey, CEO of Terracotta, which provides infrastructure software for enterprise Java, notes that his download rate has risen 1000% since they shifted to an open source model; he estimates that a traditional software company would have had to spend $4-5 million dollars to achieve the same effect. Yet the article concludes in controversy: several VCs believe that early stage open source investments are no longer of interest because all of the good deals have been done yet other venture capitalists, such as Larry Augustin, believe that many new early stage open source companies are attractive and will get funded this year.

My experience is consistent with Larry’s view. I am seeing an increase in companies which have started with an open source business model as well as many companies which are shifting either in whole or in part to an open source business model. However, entrepreneurs need to be careful not to believe that “open source” is funding “pixie dust”.

This reality was emphasized in a recent SD Forum presentation on Successful Open Source Venture Investing. The venture capitalists, Kevin Efrusy from Accel and Prashant Shah of Hummer Winblad, are very experienced in open source investments. They emphasized that “open source” was not magic: companies must fit the same financial criteria as other software investments. Both venture capitalists noted that the open source business model does provide significant advantages in swift and inexpensive adoption by end users. Yet the company needs to take advantage of these “free downloads’ by finding a way to monetize them. The most popular model for venture backed companies is “dual” licensing in which proprietary additions are made available in a commercial offering which also includes the “free” open source software. However, the typical open source company uses a variety business models: dual licensing, advertising, maintenance services and professional services (including customization and installation). In fact, many of the older open source companies started with a service only model, providing only maintenance and professional services. David Lilly, the founder and CEO of Groundwork Open Source, described how the company shifted their business model by reducing service based revenues from 80% to 30%. The open source business model continues to have significant advantages over traditional software business models, but open source companies must still meet the traditional economic criteria for venture backed software companies.

OSBC: Aligning Intellectual Property Strategy and Open Source Strategy


Recently, at the OSBC, I spoke on how to align your intellectual property strategy to your open source business strategy. This issue can be very simple if you are joining or contributing to an existing project, because you will be bound to use the license of the project. However, if you have more flexibility, you need to consider a number of elements: (1) the sources of revenue (2) the type of product (3) business model (4) type of project (5) channels (6) type of community and (7) competitors. Once you have answered these questions, you then need to review your intellectual property options, such as such as patent, trademark, trade secret, copyright, licenses and domain names to implement your open source business strategy.

For example, a new web infrastructure software company might decide to adopt a dual licensing model and to adopt a license which is relatively compatible in order to interact effectively with other open source software used on the web. The company has decided that its most important intellectual property will be patents and trademarks. The license options include MPL, CDDL, CPAL or if integration is less important, GPLv2, GPLv3 and AGPL.

The materials also describe some of the mistakes that open source companies have made. If you are interested in the presentation it is posted on the OSBC website.

HBS Open Source Case: Salvation or Suicide


Harvard Business School recently published a case on whether a software game company, KMS, which makes a device which permits amateurs to sound like professional musicians should adopt an open source business model. case demonstrates the increased recognition of the strategic importance of decisions about the adoption of the open source software business model. Unfortunately, the case does not reflect the developments in business models for commercial open source software. The case focuses on an open source business model based primarily on providing technical services. Yet most commercial open source companies have adopted a dual distribution model. Moreover, as Marten Mickos noted in his 2007 keynote at OSBC, commercial open source companies have thirteen ways to make money, with four of them which he identifies as “scalable”. In addition, the analysis in the case if confused because KMS’ product includes hardware as well as software. Such hardware could give KMS a substantial advantage against competitors trying to provide an open source version of the product. In my experience, virtually all decisions about the adoption of open source business model deal solely with software products. Consequently, I think that the case would have been more powerful (and more realistic) to focus on case in which the product was solely software. The Case Commentaries are very interesting. Jonathan Schwartz of Sun Microsystems, Inc. makes the critical point that KMS needs to determine its business goals before the company can make a meaningful decision about adopting an open source business model. He draws a contrast between Apple and Nokia in the handset market: Apple is trying to define what a handset should be and they sold 4 million iPhone handsets last year. On the other hand, Nokia is trying to be the largest handset maker in the world, has adopted an open platform and sold 400 million handsets last year.Gary Pisano of Harvard Business School was also very insightful about the necessary elements for success in converting to an open source business model: ensuring that your software architecture is “modular” and creating a developer community. The creation of a developer community is a significant challenge for a new product and quite different from the skills required for developing and distributing proprietary software. He also notes that natural advantages conferred on KMS by its role as the creator of the “platform”. Finally, he focuses on the new reality for all “proprietary” software vendors: they need to be prepared for competitors who adopt an open source model.Eric Levin makes good points about the importance of being able to control the brand and the strategic life cycle, but concludes that KMS has alternatives to adopting an open source business model such as adding personalization. However, I think that this alternative is an illusion and it seems to contradict his prior points.The final Case Commentary by Michael Bevilacqua focuses on legal issues and, from his view, the significant additional risk of intellectual property infringement in an open source business model. I don’t agree with his conclusions. First, most “proprietary software” includes significant amounts of open source code which would carry risks similar to a pure open source business model. Second, he notes the increased risk of patent infringement in open source software. I disagree that the risk of patent infringement is[...]

Open Source as the Borg: Resistance is Futile


The recent report by Gartner, the State of Open Source 2008 (; report G00156659), as summarized on their site provides some very interesting conclusions:

1. By 2013, a majority of Linux deployments will have no real software TCO advantage over other operating systems.

2. By 2012, 90% of enterprises will use open source either direct or embedded.

3. By 2011, open source will dominate software infrastructure for cloud-based providers.

4. By 2012, software as a service (SaaS) will eclipse open source as the preferred enterprise IT cost cutting method.

I agree with Gartner that open source will continue to penetrate more companies, but I think that it will occur much more rapidly than suggested by Gartner. And they are absolutely correct that use of open source is "elusive". We find that virtually all of our clients use open source even if they are not aware of it. Gartner captures the reality of open source use in their statement that: "Users who reject open source for technical, legal or business reasons might find themselves unintentionally using open source despite their opposition."

I don't agree with their conclusion about Linux and SaaS. I agree with the skepticism expressed by Mark Taylor,1000000121,39379900,00.htm. My experience is that the use of Linux continues to grow rapidly and it is likely to take an even more important role in mobile devices. The statement about SaaS confuses a business model with a method of developing software. Many open source companies use SaaS as a distribution model and it does not make them less "open source."

The report once again emphasizes how open source is becoming part of the mainstream. A decade can make a big difference: "Microsoft: Resistance is Futile"

Venture Capital Investments in Open Source Accelerate


A recent 451 Group report notes that venture capital investments in open source companies are at an all time high this quarter. They raised $203.75m, up from $100.40m in the same quarter of 2007. He expresses caution that few of the deals were seed or Series A and that much of the funding was raised by some mature companies, such as SugarCRM.

This increase in funding for open source experience is consistant with what I am seeing in Silicon Valley where I work with about 40 startups (not all open source). Most software venture deals have an open source component to them and venture capitalists are very interested in new open source projects. I know of at least four new open source companies that are seeking funding, several are based on existing projects. So I disagree with Matt that the relatively smaller number of seed and Series A deals are a cause for concern. Seed deals in particular are difficult to find (several of the companies that I mentioned above have bootstrapped or used friends and family money, so they are basically invisible). In addition, I know of four foreign open source companies that are coming to the US because of the size of the market and the depth of the venture capital market. I think that 2008 will be another record year for open source funding.

Rapid GPLv3 Adoption Continues


The most recent report from Palamida indicates that open source companies are continuing to adopt GPLv3 at a rapid pace: over 2000 projects have adopted GPLv3.

Palamida notes that: At this rate the GPL v3 is being adopted by 1000 projects every 4-5 months, and if the trend continues, the license will be used by 5000 projects by the end of the year. 5k will be a very substantial amount of projects under the GPL v3, which may influence larger projects to move over the the GPL v3 as well.

Open Source Overview from OSBC


The slides from the presentation by the NorthBridge Capital Partners from OSBC has some interesting information. The most interesting finding is that the subscription business model is likely to become much more important in the future. This finding certainly reflects my experience. Most of my open source clients are adopting a subscription model because of its attractiveness to potential customers. They also stated that SAAS (among cloud computing, software appliances and virtual infrastructure) is likely to have the greatest effect on software delivery and business models. If SAAS continues to be important it may drive the adoption of the Affero GPL (with its focus on "network use") instead of the GPLv3 (just a reminder that the Affero GPL is simply the GPLv3 with a network use provision added).

The survey confirms the Gartner report that open source will continue to expand rapidly. According to the survey, more than half (55 percent) of the respondants believe that open source software will increase to 25% to 50% percent of software used as compared with proprietary software. The respondants believed that over the next five years open source software would have the greatest effect in the Web publishing and content management system (CMS) markets, but the least effect in security tools.

Open Source Growing at an Exponential Rate


Although many of those of us in the open source community believe that open source is growing rapidly, a new study validates these conclusions: the study released March 14 by SAP Research concludes that open source software is growing at an exponential rate in "additions to open source projects, the total project size (measured in source lines of code), the number of new open source projects, and the total number of open source projects". They also noted that the total amount of source code and the total number of projects double about every 14 months. The report is based on information from the service.

The consequences of such growth are dramatic. As we noted at the Open Source Think Tank, open source software is becoming standard and the comparison for users is now between functionality and price rather than "closed" and "open" source software. In fact, this report suggests that "open source" may cease to be a different type of software, it will simply become another way (and probably the dominant way) of developing and distributing software.