Meet Mark Radcliffe: The man who rules open source law

Network abuse

The once activist open source "community" appears ready to let the likes of Google and Yahoo! trample all over it. These types of service providers consume vast amounts of open source code and give, depending on the instance, relatively little work back. Google, for example, says it has contributed about one million lines of open source code and sponsors things such as Ubuntu downloads. Meanwhile, the ad broker has vowed to write around any code that's placed under a license that would force it into uncomfortable returns of work. The giant sucking sound is audible throughout Silicon Valley

So, the question of the day is how long service providers will be tolerated as open source vacuums. The Free Software Foundation avoided this issue with GPLv3 but has produced the Affero General Public License (AGPL) to cover the use of code that's delivered over a network, as opposed to on disk or by download as in the past. In addition, you have CPAL, as mentioned, with its service provider provision.

"I think it's an option people should have, but the problem with trying to impose a mandatory network use clause in a generally used license is that it doesn't reflect the realities of the way the market has moved," Radcliffe said.

"We are really at the front end of this whole software as a service trend. Nonetheless, there are people that have developed pretty strong expectations about what they can do with software. The concern on my committee [working on GPLv3 for the FSF] was that if we put a mandatory network use clause in GPLv3, it would severely hinder its adoption simply because it would upset peoples' expectations."

And what of beast Google and the others with such voracious appetites for the work of others?

"If I could wave a wand and say, 'What would the best thing in the world be,' yeah, I would say that it would have been better if ASP clauses had been in open source licenses forever.

"Beyond Google, there are banks and others that are making things available as a service, and you have to deal with the reality of their expectations. They do have a choice. They can choose a different license. They can choose not to use open source software."

Microbound

On the expectations front, no company has worked harder than Microsoft to lower open source in the minds of customers both from legal - cancer, communism, 'we might just sue' - and product - Get the Facts - angles. Despite Redmond's protestations, open source software continues to find a prominent place in the data centers of some of the world's most conservative, large companies.

"All of Microsoft's FUD has ended up redounding against them because some of the things they have said have been so ludicrous that it has severely undercut their credibility in other areas.

"This whole campaign about Linux violating Microsoft patents has been a big flop. From my point of view, there doesn't seem to have been a big shift of people going to Suse Linux because they have this covenant not to sue.

"I think that Microsoft has recognized that open source is here to stay. They can't simply make it go away by saying, 'It is not ready for prime time' or 'Nobody would base their business on it' because it's transparent that large companies like Google and some of the major banks are basing their company on it."

The Law Speaks

When reflective, Radcliffe admits to enjoying his role as a shaper of open source software and companies' business models through his work with both corporate and IP law. He moved to Silicon Valley from the East Coast more than two decades ago with the intention of getting stuck into technology and honing his skills as a specialist in one field. Radcliffe has certainly met these goals.

"One of the things I love about being in Silicon Valley is that you get to deal with companies that are inventing the future," he said. "Particularly since I do both corporate and IP, I basically help them construct their business model. Certainly, open source is one of the most interesting things that has come along not only from a legal point of view but also from a business point of view.

"It is a very exciting time to be an intellectual property lawyer." ®

Bootnote

You can find Radcliffe and a webinar he hosted on open source legal issues here.