Building a global legal network for open source

In late 2006 I became the first coordinator of the Free Software Foundation Europe’s legal department. It was called, for reasons lost to time, the “Freedom Task Force,” and it constituted myself, Carlo Piana as the General Counsel, and several volunteers with connections to organizations like gpl-violations.org. Our goal was strait forward. We wanted to enhance knowledge and communication across Europe with respect to open source software and to ensure that both commercial and non-commercial actors in the space would get the full benefit from its potential.

One may ask why a legal department was being used for what sounds like a relatively general goal. Such a question can be answered with context from the time period. In 2006 one of the main discussions about sustainability for open source was related to legal matters, particularly concerns or challenges related to patents and copyright matters. Simplifying things somewhat, there were open questions regarding whether patent challenges could make open source expensive or unsustainable for commercial actors, and there were open questions regarding whether parties could or should follow the terms of open source licenses.

On the latter point, and somewhat amusingly when used from the perspective of today, some parties were of the opinion that the terms of open source licenses might not be mandatory. Harold Welte, the team at gpl-violations.org and lawyers like Dr. Till Jeager in Germany are owed a debt for laying this question conclusively to rest not only in their own nation but globally. While it may seem superficially counter-intuitive, their work to ensure clarity a substantial foundation to encourage and sustain commercial investment in the sphere. After all, when it comes to investment, a clear, unambiguous and level playing-field is vital.

FSFE’s legal department arrived at a perfect and positive time. We were at an inflection point in the Western European market where companies, governments and NGOs were ready to collaborate. We opened our figurative doors to a world that was primed to talk and almost immediately we entered into useful discussions that helped inform, educate and inspire our own team. Lingering concerns about potential tensions between commercial and non-commercial actors were significantly reduced and we found a common imperative in exploring how open source, from a legal perspective, could work excellently for everyone.

It quickly became evident that the greatest potential advantage for all parties was held in sharing knowledge. In much the same was as developers shared code, there was a need for lawyers and business managers to share questions asked, lessons learned, and opportunities explored. We needed a forum to help people share better. Being a legal department, and given that a lot of the key questions lay around the legal sphere, it was a natural fit to consider and then launch a network for legal experts. The “European Legal Network” was born in Spring 2007. We opened a mailing list with, if my recollection is solid after all these years, 17 participants.

During the initial weeks I was not sure how our nascent network would be received. Would people talk? Would people share? Would we provide real value to FSFE and to all the other participants? On a personal level, as coordinator of the legal department and as facilitator of the network, I had no idea how things would pan out. One cannot tell when one rolls the dice on something completely new.

The network exploded. It turns out that we perfectly hit a pressure point in the commercial, non-commercial and governmental space. People had been seeking a way to share in precisely this area and our structure — a network facilitated but not owned by FSFE — slot effectively into commonly perceived requirements for a neutral space. We shot up to 50 members extremely quickly without any compromise in the demographic targeted, a strong focus on legal professionals directly working (as opposed to simply exploring) this space. Instead of re-explaining basics to each other, everyone was well positioned to share new, useful information and perspectives.

It would be too much to claim the European Legal Network the first useful space for sharing legal knowledge. Debian Legal had provided an excellent resource for many years. OpenBar had provided a way for lawyers to talk, albeit mostly in the US, so quite removed from our geographic demographic. No, we were not the first, but perhaps we were the best positioned for what was needed at that time and in that place. Europe suddenly had a private, non-judgemental space for lawyers to open up and learn how valuable open source-style collaboration could be in their field. They returned the favor by dramatically driving forward knowledge between professionals in the space.

I directly ran the European Legal Network for two years, during my complete tenure as legal coordinator of FSFE, and later continued to actively assist with its development for a further two years as a Senior Advisor. We retained the title of the network during this time but within 24 months had actually grown to encompass over 100 participants from 4 continents. The key to growth was the same as the key to initial launch. A strong and unwavering focus was kept on the clearly defined demographic and actions were taken only in the interest of these parties rather than being confused with other goals, imperatives or pressures. This cohesiveness invited trust and increased collaboration that continued development of a virtuous cycle.

The point at which a small network became a large network, or a regional network become a global network, is surprisingly had to delineate. Such maturity becomes obvious after the fact rather than in the moment of creation. What was evident was that the network and the facilitators of the network had an increasing responsibility to itself and to those who may be impacted by the outcomes it produced. Conversations did not become overly weighty but it was clear over time that each conversation had the potential to enact real change or real improvement over a larger and larger segment of its potential audience.

Right at this moment, in describing the potential of the network, I must also caution against reading too much into it and against inviting any hubris in further description. Creating a valuable space for legal professionals to share knowledge was a worthy endeavor. The relationships it formed were just as valuable as the information passed in any single or series of discussions. But the world is not a simple place, and any influence can be but a partial nudge or a single fragment in a much later situation or puzzle. Commercial imperatives sit alongside development potentials and restrictions with as great or greater weight than legal matters pertaining to software. The best we could accomplish, and this was still a significant win, was to ensure that legal dialogue about open source was closer to state of the art than it would have been in different circumstances.

I am best placed to talk about what I got out of developing and participating in the network rather than speculating on what others may have received. First and foremost I obtained a far broader while simultaneously far more nuanced understanding of the field. What had appeared black and white descended into shades of grey, and these shades were extremely informative, quite often bridging what would otherwise be gulfs between the viewpoints of disparate parties. Secondly I discovered the energy and willingness to collaborate far transcends what might be expected among parties that are natural competitors even in fields as conservative and as cautious as law. Put simply, people regardless of type are predisposed to collaboration, and given the slightest opportunity and an appropriate forum will do so with great gusto. We all benefit from such occasions.

It was an honor to be part of releasing reference materials, the first law journal dedicated to open source and the first law book (a lawyers reference) related to open source as outcomes of the network collaborations. There are relatively few opportunities in this world to affect real change in one situation or another, and a group empowered to do so is a special place indeed. There are so many stories to tell, so many lessons learned, and so many items that should best be described as inspirations for future potential collaboration. Over the coming years I hope to share some of these while respecting the key principle of the network, and the core of the open collaboration it fostered, the Chatham House Rule.

Today the Legal Network (finally renamed somewhere toward the end of its first decade) continues as a space for legal professionals to meet and discuss open source. It remains a list with a process for proposing and approving members rather than a public list, a situation that developers and other parties used to acting in an unrestricted public sphere may level some criticism at, but those from the field of law — and indeed political scientists such as myself — find second nature. In areas of liability one is far more empowered to talk off the record, without attribution to an employees or misunderstandings along such lines, creating a carefully balanced flow of open and closed. Get it right and sharing follows a curve of impressive positive proportions. Get it wrong and value is undermined. If anything this was the trick we got most right in the formative years of the network.

Will the network have an impact as powerful in its second decade as it had in its first? Bluntly I do not think so. The first bridges you build are the most transformative either in the physical world or the ethereal world of creative goods. Once you open doors of commerce or information things change dramatically. From there most of the future is in optimization, a process of iterative improvement rather than the excitement, energy and change of a revolutionary new approach. This is not a bad thing. Indeed, it shows that the foundation laid has proven solid and has provided a path for many to productively follow. There can be few higher accolades in any activity of which we partake.

What is interesting, with a little time and distance from that rush and the intensity of the early days, is to consider in the context of the larger ecosystem how things changed. In 2007 it was somewhat revolutionary to suggest that lawyers could collaborate in much the same manner as developers. Today it is becoming common practice for business leaders, lawyers and policy makers to adopt such a stance. Conclusively and overwhelming so? No, not at all at this juncture in our socio-political evolution, but a massive degree more likely than in the past. We are on a trend that sees collaboration as more valuable than isolation when addressing intellectual capital of all types, with software being just one.

As I write this, a group of local and international guests have just completed a full day conference dedicated equally to Open Source and the Public Domain hosted by the Korean Copyright Commission. As the chairman noted in the opening remarks, it may seem strange for an entity entrusted with protecting copyright to explore sharing ranging in scope from extremely liberal (open source) through to completely unrestricted (public domain), but such perspectives inform positive social growth. As musicians took the stage to explain why they were releasing work into the public domain, and international experts from companies like Toyota explained how they were embracing open source, it underlined that the discourse around copyright in the 21st century is increasingly focused on addressing how we all get the most from the outcomes of human ingenuity.

The network I founded was a tiny building block in this global movement, a movement fueled not primarily by ideals, but rather sustained by utility. The network worked for the same reason as all the other activities adjacent worked. People found value, they told other people, and it snowballed from there. Beyond the excitement of what that all means there is also an important kernel of truth that should provide inspiration for all those to come. You, as an individual, can affect real change if you approach challenges to business or society with an open, questioning mind, and you take steps to bring people closer rather than further together. For once we bring people together, we start to solve even the greatest challenges, and we start to improve even the most difficult things.

I opened my speech at the conference today by noting that in our 100,000 year history as a species all of our greatest accomplishments have been marked by cooperation and all of our greatest failings have been marked by a failure to work together. I think this observation contains the germ of an important truth. We are both as simple and as complex as it suggests.
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