Karen Copenhaver, Black Duck Software, speaking at Mass Open Source Special Interest Group

And since there are a lot of attorneys in the room, I always tell this story, but it's just to level set everybody, because sometimes I'd look out and see a sea of attorneys, and they're acting like you developers that put this Open Source into the source code, like you're drunk and disorderly or “Oh! They're out of control, putting all this source code into their source tree.” But if I ask the lawyers in the room how many of you would ever start writing a contract with a clean sheet of paper? I mean, how many of you, if you had a contract to write, and you had to get it done on time, which developers, believe it or not, have very, very tough time schedules, just like you, and you had to bring it in at cost, would you rewrite every piece of boiler plate in the contract?

And if I had a tool that could recreate every contract you ever read and scan every contract you ever wrote, how many clauses would I find that were copied from Microsoft contracts? [laughter] And what would your defense be? Let me give you your defense. Your defense would be, “I didn't notice the copyright notice.” [laughter] Which Microsoft has, I'm not sure if they still do, but for a long time all their contracts were copyrighted, and if you're an attorney you know the're copyrighted anyway, right? Then you'd say, “No, no, it's purely functional, [laughter] that little piece, that export clause, no expression in there, purely functional.” If you didn't get away with that one, you'd go de minimus, quantitatively. But you copied it for a purpose. And you know why you copied it? You copied it because it was peer reviewed. You copied it because it's something that's been out there, and many, many eyeballs have looked at it, and it's passed the test of time.

Nice example. Reminds me a bit of the sms.ac lawyer who was trying to assert copyright of his C&D letter saying it was original expression.

via Groklaw via Michael

UPDATE: Met Karen at OSCON and took her picture.

8 Comments

Brilliant!

Simply brilliant.

Actually, one of the "dirty little secrets" of the professional services industry (attorneys included) is the reuse of boilerplate, not just in contracts, and not just from your own firm.

Where it gets really sketchy is when professional services groups will charge full price for something rather than the incremental cost associated with customization or the original material.

We don't do it, and we only charge for incremental, but that's why we're a boutique firm.

Thanks Joi for posting something that actually throws a new light on the whole Open Source thing...

You retain copyright over any letter you write to another person. The receiver has no right to republish any letter without your permission.

As for the example above, the author is playing to the gallery. The two examples are not the same. There are many boilerplate legal documents in legal reference books that freely allow copying. However, if you were to deliberately copy a MS contract, that would be an infringement of their copyright. Although it is unlikely to be enforced, it is not the same as copying something that has permission to be copied.

Terrific. Great comments too. The C&D is an odd case.

Mark: Although different people will interpret it differently, if a letter has no originality, then you can't copyright it. Boilerplate stuff that is basically 'common knowledge' should not be subject to copyright. When you're writing agreements, certain clauses start to become defacto standards because everyone knows what they mean. I think that, at least in practice, A LOT of contract clauses are copied because 'if it's good enough for MS, it's good enough for us.'

Mark, I would contest the C&D letter because 1) I don't think the C&D "letter" is original in any way and just boilerplate and 2) you can't assert confidentiality without the other party entering into an agreement, which I haven't by just receiving the letter.

Joi

The initial argument by Mr Copenhaver is false. You are free to copy boilerplate texts from legal reference books. You can copy text from MS contracts; they probably won't come after you for such minor copyright infringement. However, I am pretty certain that if you use MS code in an open source project they will agressivly persue it.

In my experience I have been able to stop republication of boilerplate letters, because, due to the minor adjustments that are always necessary they are still an expression of what I want to achieve.

The issue with re-publication of letters is not confidentiality, but that they are copyrighted material. You can show the letter to people, but you can't republish it.

Mark: My point is that the particular C&D letter had a confidentiality clause in it and I don't think that makes any sense. I think that depending on the letter and how boilerplate it is, I could argue that it can't be copyrighted and that indeed it is not original. Also, if you are suing for damages, you would need to show the value of the expression as well right? Is there a market fo poorly formated C&D letters as a form of expression?

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Joi Ito (quoting Karen Copenhaver): “And since there are a lot of attorneys in the room, I always tell this story, but it’s just to level set everybody, because sometimes I’d look out and see a sea of attorneys, and they’re act... Read More

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