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Legalese and coding? Yup, it's the open-source FOSDEM shindig

Where there's money there's muck, lad

FOSDEM doesn't get the ra-ra headlines or (thankfully) the "booth babes" but the conference does get networking and top technologists (and Belgian beer). I saw a couple of my tech heroes and big cheeses here a few minutes apart just before writing this, for example, and got some top advice for a specific tech issue a breath later.

I also saw photos of RMS (Richard Stallman) at large a few paces away, though I didn't get to meet him in person and buy one of his badges, alas...

Man-flu and technicolour yawning on the second day didn't stop me having riotous fun with geekery, champers and IP lawyers this year!

Law of the FOSS jungle

A feature of the maturity of the free/open source ecosystem easily overlooked is that the argument has long moved on for most from: "Is it a thing?" and: "Is it a useful thing?" (as opposed to a "cancer", recalling ex-Microsoft chief executive Steve Ballmer) via "How can we use it?" to being a mainstream business proposition, AKA "How can we monetise it?"

Where there's maturity and money there's lawyers; debugging the minutiae, a low-key dull-but-worthy message from FOSDEM. (I declare a bias, given that my IoT startup is founded on the principle of enabling a market by commoditisation of parts of it via FOSSH (free/open source software and hardware. Investors and bureaucrats no longer look at me as if I have two heads!)

Thus, one small sign of the growing maturity of FOSS was that even the expanded law devroom at FOSDEM was still frequently completely full.

An example of the thoroughness with which FOSS legal ground is being made was the snappily-titled Copyleft in Europe: How does copyleft interact with Exhaustion Of Rights. This came to the conclusion that the GPL's famous copyleft remains sound in the EU and the US in the face of much hostility and whacky legal theorising, though for somewhat different reasons in each, if I understood correctly.

In the US, because there is no First Sale (that concept is instead replaced by licensing) that might otherwise undermine copyleft enforcement once out of the dev's hands, and in the EU because the courts have taken the view that the copyright directives and laws are there to enhance trade, copyleft doesn't undermine that, and so copyleft should stand. I am not a lawyer, you'll note.

Collaboration is king

Given that the IT world is getting to be a more collaborative place, working methods and the surrounding law are getting nailed down, and FOSS is no longer just for starry-eyed granola-eating tree-huggers,given that even large corporates find themselves funding and dependent on FOSS tech shared with their competition.

OpenStack is an interesting example where discussions have to be in the open with those competitors, with the sometimes private menace of workplace politics looming over those discussions.

Licence flavour does not turn out to be the key issue for a running project, though copyleft does inhibit some collaborations from starting at all, according to OpenStack Foundation technical community manager Stefano Maffulli in his (unscheduled stand-in) talk.

It's the organisational changes to support this new way of working that are critical – sometimes whole teams have to be spun out away from the "home" workplace to let things happen at all.

And all collaborators' legal departments are terrified of patent issues, both of infringing third-party patents and of letting their own patents leak, for example.


There were 300,000 US patents issued last year – a worryingly high allowance rate of more than 50 per cent that suggests many bad 'uns slipped through the net. Luckily, according to Open Invention Network community outreach director Deb Nicholson, some hungry contingent-fee lawyers are getting more aggressive and canny, so are many judges, including those saying that more patents are bad and unenforceable.

Note that judges rule for the patentee about half the time, but juries two thirds; and by amazing coincidence lots more patent cases are being heard by juries of late.

The OIN has a mutual non-aggression pact ("a defensive patent pool") that is a blindingly sensible way to de-fang some of the danger in this area. But it's still clear to many that patents, like copyright, remain bent out of shape, are being gamed, and are not serving their intended purposes well.

GPL enforcer

Another insight into the day-to-day interaction of FOSS and business came from Bradley Kuhn, president and distinguished technologist at the Software Freedom Conservancy who is also on the board of directors of the Free Software Foundation (FSF).

The FSF’s "GPL Enforcement guy" gave a fascinating tale of dancing lightly round the missteps of a previous good actor gone rogue, extracting the FOSS elements of a mixed-up system and putting them back into the community, while staying above reproach, with a mixture of careful scripting and lawyering.

An admirable effort in preventing abuse of open licences, even if it also serves as a warning to try and get your licences right when you start your own projects. Know what you are trying to achieve! I seem to have licensing discussions long before creative stuff like code or schematics start when working in collaborations.

It's maybe worth noticing that lawyering and coding are not worlds apart, and they should learn to live with one another. ®

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