# Similarity between contracts and open source code

- Author: Joichi Ito
- Date: 2005-07-30T04:49:03Z


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.





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