Debunking a law firm's open-source FUD

Update below with White & Case's response. Spoiler: they weren't happy with my interpretation of their e-mail.

White & Case, a leading international law firm, has been struggling in the face of the recession, laying off 70 associates in late 2008.

Perhaps nothing makes its struggle as clear as its attempt to drum up business by scaring prospective and current clientele into retaining its services to address the very scary open-source legal threat, as a recent e-mail sent out to a friend suggests:

From: "Rieck, Christopher"
Date: April 13, 2009 8:09:09 AM PDT
To: xxxxx
Subject: Open Source Decision - New Legal Penalties on Developers?

Hi Dave,

Open-source licensing--the innovative (if controversial) tool that makes source code available to the general public on certain conditions--is a growing movement most closely associated with Linux and other major software products.

The movement may well have been given a great boost by a recent court decision that makes it easier to enforce open-source licenses. But the unintended side effect may be that many software developers who incorporate bits and pieces of open-source code in commercial programs will now face greater risks of significant legal penalties for doing so.

Last December, a decision by the U.S. Court of Appeals for the Federal Circuit in the matter of Jacobsen v. Katzer held that breach of an open-source license can support a claim for copyright infringement--with associated remedies. The Court's ruling may also require recognizing that the open-source copyright owner has standing to sue downstream licensees for copyright infringement....

"Following this decision, commercial software developers should be even more cautious of incorporating any open-source code in their offerings. Potentially far greater monetary remedies (not to mention continued availability of equitable relief) make this vehicle one train to board with caution."

This is an interesting perspective, one that explicitly cuts against the generally positive perspective on the lawsuit that Mark Radcliffe and other experts on open-source law have suggested.

Indeed, legal expert Larry Lessig calls the Jacobsen decision "huge and important," and explains the appellate court's finding in very different terms than White & Case:

In nontechnical terms, the court has held that free licenses such as the (Creative Commons) licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer.

This is the theory of the (GNU General Public License) and all (Creative Commons) licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Does that sound dire? I don't think so, either.

No, it simply means that White & Case's clients can't pilfer from the open-source community without contributing back. Since when is this something to fear?

So while it may be good business for White & Case to spread FUD (fear, uncertainty, and doubt) within its clientele to drum up business in a weak economy, the case it references is a big win for clarity around open-source licensing. This is something to celebrate, not fear.

It's also a reason to retain a different law firm, one that recognizes the opportunities in open source and isn't fixated on risks mostly of its own invention.

UPDATE: Jonathan Moskin, a partner at White & Case, responded to this post with the following:

As we explained in our e-mail to CNET, this decision may have given the open-source movement a great boost by making it easier to enforce open-source licenses. The purpose of our e-mail was to spark meaningful discussion with CNET and other publications on the issues in the decision, of which Mr. Asay was most certainly aware and which would have been clear to your readers, had the e-mail not been selectively edited to remove the invitation at the note's end.

For those who are interested, I actually could quote the e-mail in its entirety, and it would only augment my argument. I apologize to Mr. Moskin, if I misrepresented the intent of his e-mail: I was taking the words at their face value, and as an open-source advocate, I don't appreciate that value very much.

It is absolutely the case that there are legal risks in open source, but the same is 100 percent true of proprietary software. Indeed, the same risks that Mr. Moskin points out in open-source software exist in proprietary software.

Regardless, I apologize if I misread his e-mail. I'm also sorry if I seemed callous to those at his firm who lost their jobs. Unemployment is a terrible thing. I wasn't in any way trying to minimize it and apologize if it seemed that I did so.

Follow me on Twitter @mjasay.