The FLOW Syllabus (Version 2.0)

Last modified by Joseph Potvin on 2014.08.07 at 04:29:48 PDT

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TABLE OF CONTENTS

  1. About the FLOW Syllabus
    1. Introductory Presentation on the FLOW Syllabus
    2. Don't "dumb-it-down". Focus. Pay attention to detail.
    3. Who is The FLOW Syllabus For?
    4. Who Offers Training Based on The FLOW Syllabus?
    5. How to Participate in the OSI-EDU-WG
    6. General Disclaimer
    7. Re-Usability
      1. Use, Re-Use, Refine, Adapt, Re-Post, Redistribute
      2. Free/Libre and/or Free/Gratis
        1. External Works
        2. Internal Works
      3. Modularity, Extensibility, Flexibility
    8. Creative Audacity + Performance Rigor
  2. The General Direction of FLOW
    1. Scope
    2. FLOW: Free/Libre/Open Works ≡ (Good Values) + (Good Value)
    3. How to Make it Easier for Corporate Legal Counsel to Help You
      1. About the Role of Non-Lawyers
      2. About the Role of Lawyers
      3. About the Types of Law
    4. Decision-Making Under Uncertainty at the Intersection between "Source Code" and "Civil Code"
    5. Audio Files
  3. Overview of Constraints on FLOW
    1. Copyright
    2. Artificial Monopolies
    3. Trademarks
    4. Industrial Design
    5. Trade Secrets
    6. Non-Compete Clauses, Agreements or Compulsion
    7. Post-Sale Restraints
    8. Indemnification
    9. Deceptive Changes to Legislation
  4. Constraints on the FLOW of Expression
    1. Scope and Limitations of Copyright / Droit d'auteur
    2. Concepts, definitions, boundary of application, incl. copyright assignment issues and solutions (Canada, US, other)
    3. Real World Copyright Court Cases (what went wrong; reasons for decision)
    4. Copyright Risk-Minimization and Value-Maximization in the Organization's Context
  5. Constraints on the FLOW of Ideas
    1. Concepts, definitions, boundary of application
    2. The Inappropriate Delegation of Authority to Levy Taxes on Ideas
    3. Current Developments and Trends (non-aggression pacts, defensive patents; defensive publication; license clauses)
    4. Real World Patent Court Cases
  6. Structuring the FLOW of Responsibility
    1. Conceptual Foundations of Responsibility
      1. Theory of Responsibility
      2. Management of Responsibility
        1. A Documentation Specification: Software Package Data Exchange (SPDX)
        2. A Compliance Management Process: ISO 19600
      3. Management of Intellectual Provenance (IP) Responsibilities
    2. Licensing: The Delegation Responsibility
      1. The Main Currents of FLOW Licensing
      2. Dual/Multi Licensing Options (for individual commits and for whole projects)
    3. The FLOW Subscription Model
    4. License Compliance Verification
      1. Policies and Approaches for License Compliance Verification
      2. Technical Analysis of FLOW License Compliance Verification
    5. FLOW Contributor Agreements
    6. FLOW in Employment Contracts
  7. Foundations of FLOW Management
    1. FLOW Governance Concepts
    2. FLOW Perspectives within the Field of Project and Portfolio Management
    3. "The Manager" and "The Coordinator"
    4. Examples of Great FLOW Management
    5. Resources

Session:  View this topic only

About the FLOW Syllabus

Learning Outcomes: This opening session communicates the objectives of the FLOW Syllabus, how to use it, and how to participate in its further evolution through the OSI Working Group on Management Education.  Participants will also become more familiar with requirements for the effective management of open learning intiatives generally, including open access journals. 

Introductory Presentation on the FLOW Syllabus

flow-syllabus_introscreenshot_small.png

ODP format, PDF format

The FLOW Syllabus

A curated collection for learning about the Free/Libre/Open Wealth of ideas
To advance professional competencies relating to Free/Libre/Open Works.
Join us in doing things the Free/Libre/Open Way,
And help spread the Free/Libre/Open Wave,
Throughout the Free/Libre/Open World.
 

Don't "dumb-it-down". Focus. Pay attention to detail.

  • The FLOW Syllabus is a thoughtfully curated guide to the domains of community knowledge that will help anyone involved in creating, maintaining or deploying Free/Libre/Open Works (FLOW) to:
    • Understand ways to optimize business value through FLOW licensing, contracting methods and management approaches, as well as inter-organizational governance principles and processes;
    • Improve business risk management by advancing the capability of makers and users to understand the field, and to determine what is ethically and legally "in" and "out" of bounds;
    • Enable more effective communication amongst FLOW makers, users and their colleagues, including their lawyer(s), on a variety of topics, informed by a principled and pragmatic perspective on intellectual capital management.
  • We do not "dumb-it-down"! We bring frequently-misunderstood distinctions into sharp focus. We pay excruciating attention to detail and nuance, where submerged rocks and erratic currents might otherwise scuttle beautiful projects. Think of The FLOW Syllabus as a nautical chart to help educators and their clients steer clear of hazards, move into safer channels, and catch the best currents. Because in business, finance and law, just as in source code, details do matter.
  • The FLOW Syllabus is for educators whose role is to help their clients gain an advanced understanding of the strategies, processes and methods to optimize value, to control costs, and to manage risk through effective coordination, resourcing and governance of free/libre/open works. 
  • The FLOW Syllabus IS:
    • A secondary source, a compilation of external learning assets that our editors consider to offer the clearest, most useful freely-available web-based information to explain or illustrate the free/libre/open way (ethics, methods, processes, governance, HR management, strategy, security, law or financing);
    • A structured guide to learning assets that anticipates the need to associate information, learning objectives and assessment (both formative and summative), but that also supports anyone's unstructured ad hoc learning.
  • The FLOW Syllabus IS NOT:
    • A primary source, except where particular concepts or methods are briefly explained here due to lack of a suitable external source at this time.  Your further recommendations are welcome, of course.
    • A course or a curriculum in and of itself. Instead these resources are optimized for adaptation by educators (including self-educators) into the learning plans or curricula that they design.
  • Other excellent curated collections:
  • For more information see The Communication Strategy of the FLOW Syllabus

Who is The FLOW Syllabus For?

  • YOU might be a:
    • Student, employee, contractor, manager or executive. Any type. Any sector;
    • Programmer, systems architect, or systems administrator engaged directly in IT;
    • Lawyer, accountant, engineer or other type of licensed advisor for whom errors and omissions are critical;
    • Professional or academic educator creating onsite or online learning services for any of the above.
    • Project or portfolio manager in a commercial, governmental, academic, or civil society organization, or in an informal community.

Who Offers Training Based on The FLOW Syllabus?

  • As is consistent with the free/libre/open way, it's an open competitive market. What are YOUR criteria?
  • Contributors to the FLOW Syllabus are familiar with its substance, and some of them offer train-the-trainer and client-centred training services, commercially and through academic fora. 
  • Many of the links included in the FLOW Syllabus point to particular learning assets that are produced and shared by organizations that offer excellent training services. Some of them are very specialized, and others cover a wide spectrum of topics. Use the syllabus as a guide to available services. 
  • Here we also list Courses, Curricula, Training and Coaching About FLOW for Managers
  • Contact the OSI's General Manager to discuss your organization's objectives, and for referrals to respected authorities in the global multi-cultural multi-lingual multi-disciplinary free/libre/open 24X7 community of practice.

How to Participate in the OSI-EDU-WG

Call for Participation in OSI's Working Group on Management Education (OSI-EDU-WG): Let's work together to strengthen the quality of management amongst free/libre/open projects and portfolios, and amongst their governing organizations. We invite your collaboration towards improving the FLOW Syllabus. The OSI-EDU-WG meets online at http://osi.bigbluebutton.org/osi/ every Tuesday at 21:00 GMT (which is Wednesday 6am Brisbane, Australia; and Tuesday 4 pm in NYC). Contact the Chair, Joseph Potvin to discuss: <jpotvin@opman.ca>.
 — The Educators Committee meets on the first Tuesday of each month
 — The Lawyers Committee meets on the second Tuesday of each month
 — The Technologists Committee meets on the third Tuesday of each month
 — The Project & Organizational Managers Committee meets on the fourth Tuesday of each month

  • In addition to involvement in the Working Committees, there are other ways you may participate in the refinement and extension of this resource.
    • The FLOW Syllabus is presented on a wiki so that it can be improved through open direct participation. You are welcome to register on this site to help advance these pages. The OSI Management Education Working Group (OSI-EDU-WG) reserves the right to revise or reverse any changes.
    • Please contact the Working Group Chair  or any of the Working Committee Coordinators with your suggestions or concerns. Joseph Potvin, can be reached at jpotvin@opman.ca and 18195935983.

General Disclaimer

  1. The information provided in the FLOW Syllabus is intended to strengthen the self-directed or coached learning of individuals and teams. The contributors hope to assist more effective communication between you and your colleagues, including your lawyer(s), on a variety of topics associated with the intellectual capital management of free/libre/open works. Therefore we emphasize that the contributors provide no advice, but do aspire to strengthen capacity amongst people in the FLOW producer and  user community to make insightful decisions.
  2. Laws and regulations govern the provision of "legal advice" in each jurisdiction. Neither the syllabus contributors nor your course facilitator (if you have one) serve in any way as proxies or substitutes for your organization's lawyer(s). So at risk of sounding over-the-top defensive right off the bat: TINLA: This is not legal advice.
  3. Nothing represented in the syllabus can be assumed to represent views of a particular individual or organization, even when an organization hosts or delivers an instance of the content or of training based upon it.

Re-Usability

Use, Re-Use, Refine, Adapt, Re-Post, Redistribute

Free/Libre and/or Free/Gratis

External Works

  • All external works referred to in The FLOW Syllabus retain their original copyright status and terms of distribution.
  • All external works linked to in the FLOW Syllabus are free/libre and/or free/gratis, available with no obstacles to the flow of insight. Limited excerpts from articles, books and other media which are published or distributed under restrictive terms are reproduced within the bounds of fair use. Original sources for ideas and their expression are referenced. Please report any apparent oversights.
  • We deliberately expose the URLs for all external links, in order to facilitate your quick reference to original sources.

Internal Works

  •  All works that become an integral part of the FLOW Syllabus are made available under the most recent versions of both the CC-BY1 and GNU-FDL2 licenses. Use it under either of these, as you prefer. 
  • If you have never actually read those licenses, please take a few minutes to do so. 

Modularity, Extensibility, Flexibility

  • The FLOW Syllabus is maintained like core code in free/libre/open software, for reuse, updates and derivative works.
  • Use of the syllabus creates a natural incentive for routine updates, improvements and extensions.
  • Any user can build a learning program from the modular elements and sequences organized around topics, integrated through conceptual threads that run through the FLOW Syllabus.  It is up to the learner and teacher to follow routes of interest and identify new trajectories. Personalized content, activities and outcomes can be integrated seamlessly;
  • Modules within the FLOW Syllabus can be adapted to extend or supplement any pre-existing formal course of study with formal evaluations and credentials/certificates;
  • The approach is socializable. Educators can create, supply and promote their own affinity-based custom “packages” or "profiles" of The FLOW Syllabus, based on their preferred modules, learning sequences and extensions.
  • The content presented on the complete "long page" view can also be accessed via the separate wiki pages on which each module is maintained. For the individual session pages click on "View this topic only" above each main title.

Creative Audacity + Performance Rigor

The overall concept for this syllabus is inspired by the attitudes of:


Session:  View this topic only

The General Direction of FLOW

Learning Outcomes: Participants will be able to situate the conceptual and operational scope of discussion about Free/Libre/Open Works in relation to other fields of concern, using terminology that makes sense across multiple professions and disciplines. The broad schema provided here will help participants to communicate more effectively with others, including their legal counsel, their entry-level staff, their senior executives, and their management peers in partner organizations.

Scope

factorsofproduction_small.png

FLOW: Free/Libre/Open Works ≡ (Good Values) + (Good Value)

How to Make it Easier for Corporate Legal Counsel to Help You

About the Role of Non-Lawyers

About the Role of Lawyers

About the Types of Law

Decision-Making Under Uncertainty at the Intersection between "Source Code" and "Civil Code"

Audio Files

Audio File (pending): Listen to a Discussion with the Co-Editors of Groklaw on the Surreal World of Copyright & Patent Litigation

  • Mark Webbink Co-Editor of Groklaw since 2011, and Board Member of the Software Freedom Law Center, works as Executive Director of the Center for Patent Innovations at New York Law School, where he also oversees the Peer To Patent project run with the U.S. Patent and Trademark Office. As a senior lecturing fellow at Duke University School of Law he teaches patent, copyright, trademark and trade secret licensing. He was the first General Counsel at Red Hat from from 2000 to 2004, as well as Senior Vice President, and from 2004 to August 2007 Deputy General Counsel, retiring from Red Hat in 2007. He received his J.D., magna cum laude, from North Carolina Central University School of Law in 1994. http://www.nyls.edu/faculty/faculty_profiles/mark_webbink/

Audio File (pending): Listen to a Discussion with an Invited Authority on the Composite International Legal Environment Governing Copyrights, Patents and Contracts (Part 1)

  • "Eben Moglen":http://www.softwarefreedom.org/about/team/ is Executive Director of the Software Freedom Law Center and Professor of Law and Legal History at Columbia University Law School. He has represented many of the world's leading free software developers, and co-authored the GNU series of licenses. Professor Moglen earned his PhD in History and law degree at Yale University during what he sometimes calls his “long, dark period” in New Haven. After law school he clerked for Judge Edward Weinfeld of the United States District Court in New York City and for Justice Thurgood Marshall of the United States Supreme Court. He is admitted to practice in the State of New York and before the United States Supreme Court. Recently he started the FreedomBox Foundation.

Audio File (pending): Listen to a Discussion with an Invited Authority on Intellectual Rights Compliance Management and Risk Identification

  • Janet Campbell, Director, Intellectual Property, Secretary and Legal Counsel, Eclipse Foundation. Janet is responsible for the review of intellectual property proposed for inclusion in Eclipse open source projects.  This review includes examining both the provenance of the intellectual property and license compatibility. She is author of the Eclipse Legal Process and maintains the document on an ongoing basis. She is also co-author of the Eclipse Guide to Legal Documents, which has benefitted from the work of several contributors over the years. In this session, Janet will discuss how the Eclipse Foundation manages contributions of source code to Eclipse projects and undertakes due diligence to reduce and mitigate risks due to parties involved in re-use or re-distribution. http://www.microdoc.com/eclipse-embedded-day-2009-video-managing-open-source-legal-issues-janet-campbell


Session:  View this topic only

Overview of Constraints on FLOW

Learning Outcomes: Participants will become familiar with the full diversity of constraints relating to rights and responsibilities that managers or coordinators of Free/Libre/Open Works may come upon in the course of their work. The focus here is to arrive at a useful shared ontology to facilitate organized discussion of issues particular to each element, which are addressed in the rest of the Syllabus. 

Many kinds of intellectual capital restrictions exist that, depending on the context and circumstances, may have FLOW enabling and FLOW obstructing roles. (Consider the Venturi Effect as the literal case of a restriction of air or water that can serve as a convenient method of enhancing flow. This usefully extends our metaphor.) Constraints may obstruct  and/or may strengthen FLOW contributors, projects, and organizations. Even litigation against FLOW projects sometimes ends up greatly strengthening the "immune system" of the entire FLOW movement, when such challenges are defeated in court.

This is a partial draft ontology, yet to be formalized in relation to the broader field. Please contact the OSI Management Education Working Group if you would like to help advance this information.

Copyright

Copyright specifies control over two-dimensional text-based, audio, or visual expression, and over the original creator's integrity, association and attribution. Copyright is relevant to FLOW projects involving computer programs because all FLOW licenses on the programs are primarily copyright licenses, however they usually include clauses related to at least some of the other types of constraints listed below. Copyright is addressed extensively in the Copyright Session of the FLOW Syllabus

Artificial Monopolies

There occurs a type of artificial monopoly created by governments to grant multi-year authority for a person or organization to enforce the payment of private taxes relating to the use of a novel, non-obvious, useful, documented idea. Such private taxation authorities were first introduced in the 1600s by European monarchs, which is why today the payments are still called "royalties".  The certificate granting this exclusive monopoly is formally called  "letters patent", a sort of published declaration by the Crown. Here in the FLOW Syllabus, we try to use functional terminology for improved understanding. The whole concept has been highly controversial from the beginning, and it remains so today. Several FLOW licenses for computer programs include some form of "non-aggression" clause to reduce litigation risk. Artificial monopolies are addressed extensively in the Artificial Monopoly Session of the FLOW Syllabus.

Trademarks

A trade-mark is comprised of text, a design, or a combination of these, that is visually unique within a market, used to distinguish an organization or its brand from others. FLOW licenses are usually explicit that their free/libre/open terms do not extend to the trade-mark(s) supplied with source code or documentation. This topic is not addressed in detail in the FLOW Syllabus. Following are some useful sources:  
— Model Trademark Guidelines (written by and for free and open source software communities) http://modeltrademarkguidelines.org/index.php?title=Home:_Model_Trademark_Guidelines
— The Python Trademark Dispute http://opensource.com/law/13/2/python-trademark-dispute

Industrial Design

Industrial design specifies control over three-dimensional expression, and over the original creator's integrity, association and attribution. FLOW licenses for "open hardware" are primarily industrial design licenses, although they usually include clauses related to at least some of the other types of constraints listed here. This topic is not yet addressed in detail in the FLOW Syllabus. Following are some useful sources:
— Industrial Designs Compared to Copyrights http://www.capatents.com/industrial7b.html
— Industrial Design: Subject matter and scope http://www.bereskinparr.com/Section/About_Intellectual_Property/Industrial_Design
— Industrial Design Act http://laws-lois.justice.gc.ca/eng/acts/I-9/FullText.html

Trade Secrets

The legal concept of "trade secret" refers to any information of value to a business that is not publicly available or otherwise generally known within the relevant industry or trade, and that is treated as secret or confidential at all times by its owner, who has taken steps to protect it. This is relevant to FLOW projects in two ways. First, commercial organizations that employ free/libre/open methods must ensure effective management of the operational boundaries between information that is shared and that which is not shared. Also, in planning, discussion or litigation, it is useful to analyze the relative effect on competitive innovation of intelligent application of trade secret practices versus artificial patents. This topic is addressed in more detail in the Trade Secrets section of the FLOW Syllabus.

Non-Compete Clauses, Agreements or Compulsion

Often employees or business partners of organizations sign non-compete agreements, which later come to be interpreted in ways that interfere with the normal exercise of FLOW freedoms and methods, during of after the period of employment or partnership. How disputes play out is typically a matter of power over fairness. This topic is not yet addressed in detail in the FLOW Syllabus. Following are some examples of its relevance to FLOW projects:

Post-Sale Restraints

Some equipment or service suppliers interfere with the normal exercise of FLOW freedoms and methods through direct prohibitions in their supply contracts, or indirectly by invalidating warranty coverage. Such constraints are rarely enforceable, but court processes are a significant cost anyways. Managers of FLOW Projects must stay alert to such restrictions, and avoid any such restrictions that could complicate their work later on. This topic is not yet addressed in detail in the FLOW Syllabus. Following are some examples to assist understanding of the concept:
— Ethyl Gasoline Corp. v. United States, 309 U.S. 436 (1940) http://supreme.justia.com/cases/federal/us/309/436/case.html
— United States v. General Electric Co., 272 U.S. 476 (1926) http://supreme.justia.com/cases/federal/us/272/476/
— Quanta Computer, Inc. v. LG Elecs., Inc. http://supreme.justia.com/cases/federal/us/553/06-937/

Indemnification

Some organizations require that suppliers of computer programs indemnify the client for a set of risks. On this basis, they may rule out obtaining FLOW solutions because these license all specify that the user assumes all risks. Some large organizations bundle the sale of an "insurance" service with a deployment service. Managers of FLOW Projects should avoid indemnification agreements, as they conflict with the relationship premise of the free/libre/open way. This topic is not yet addressed in detail in the FLOW Syllabus. Following is a short video that explains why:
— Indemnification Means Always Having to Say You're Sorry http://www.youtube.com/watch?v=WpYcB-_x9gA

Deceptive Changes to Legislation

Occasionally in various jurisdictions, attempts are made to get constraints on FLOW introduced into legislation through clever and misleading language, secrecy and undemocratic elitism. Managers of FLOW Projects must stay alert to such developments, and should proactively participate in defending free/libre/open market principles. These topics are not yet addressed in detail in the FLOW Syllabus. However following are two examples:


Session:  View this topic only

Constraints on the FLOW of Expression

Learning Outcomes: Participants will gain an appreciation of the foggy boundaries within which rights and responsibilities under "copyright" law are attached to various types of intellectual capital, in different ways in different jurisdications at different times. Participants will become operationally more adept at steering their projects and organizations clear of storms, submerged rocks and erratic currents.

Scope and Limitations of Copyright / Droit d'auteur

Audio File (pending): Listen to a Discussion with  an Invited Authority on the Composite International Legal Environment Governing Copyrights, Patents and Contracts (Part 2)

  • Catharina Maracke is a German qualified lawyer and Associate Professor at the Graduate School for Media and Governance, Shonan Fujisawa Campus, Keio University, Japan. She specializes in international copyright law and policy, the interaction between law and technology, and standardization in the field of free/libre/open licensing. For the Shuttleworth Foundation she now leads Project Harmony that develops and maintains international porting of standardized templates for the management of copyright title in free/libre/open project contributor agreements. Previously as international Director at Creative Commons, she oversaw international porting of Creative Commons licenses. She also serves as a board member for the OpenCourseWare Consortium. http://cyber.law.harvard.edu/people/cmaracke

Concepts, definitions, boundary of application, incl. copyright assignment issues and solutions (Canada, US, other)

Real World Copyright Court Cases (what went wrong; reasons for decision)

Audio File (pending): Listen to a Discussion with  an Invited Authority on Canada's Current and Future Copyright Framework for Free/Libre/Open Source Software Communities

  • Michael Geist is a law professor, and the Canada Research Chair in Internet and E-commerce Law, at the University of Ottawa. He holds a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School. Dr. Geist is the editor of "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" (2013); From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (2010) and In the Public Interest:  The Future of Canadian Copyright Law (2005). He also serves as editor of several monthly technology law publications. Dr. Geist serves on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Privacy Commissioner of Canada’s Expert Advisory Board, the Electronic Frontier Foundation Advisory Board, and the Information Program Sub-Board of the Open Society Institute. http://www.michaelgeist.ca/content/view/62/128/

Copyright Risk-Minimization and Value-Maximization in the Organization's Context

  • Current Practices
  • Concerns and Challenges
  • Interests and Opportunities


Session:  View this topic only

Constraints on the FLOW of Ideas

Learning Outcomes: Participants will gain greater precision in their knowledge about government-granted authority to persons ( corporations or individuals) to levy private taxes, by declaring artificial monopolies over ideas. Such declarations are commonly referred to as "patents". Participants will develop a basis for making their own assessments about the appropriate versus inappropriate creation of idea taxation powers. Participants will also learn how many developers and organizations are currently attempting to protect themselves, their communities, and their Free/Libre/Open Works from a global proliferation of idea taxes that is stifling competition, innovation and productivity.

Concepts, definitions, boundary of application

Plutarch (c. 46 – 120 AD), on Archimedes and the special character of subject-matter that would not have been obvious: "Some attribute this success to his natural endowments; others think it due to excessive labour that everything he did seemed to have been performed without labour and with ease. For no one could by his own efforts discover the proof, and yet as soon as he learns it from him, he thinks he might have discovered it himself; so smooth and rapid is the path by which he leads one to the desired conclusion."   

Plutarch, "Parallel Lives of Greeks and Romans" http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Plutarch/Lives/Marcellus*.html (pg 481 in the 1917 Loeb Classical Library Edition, from the original book dated approximately 100 AD)

The Inappropriate Delegation of Authority to Levy Taxes on Ideas

Current Developments and Trends (non-aggression pacts, defensive patents; defensive publication; license clauses)

Real World Patent Court Cases

Audio File (pending): Listen to a Discussion with  an Invited Authority on 20-Year Artificial Monopolization of Computational Ideas ("Software Patents"): What do we learn from the CLS Bank v. Alice Corporation case?

  • Dan Ravicher is Executive Director of the Public Patent Foundation and a Lecturer in Law at Benjamin N. Cardozo School of Law. He received his law degree from the University of Virginia School of Law, and is admitted to the United States Supreme Court, the Courts of Appeals for the Federal, 2nd and 11th Circuits, the District Courts for the Southern and Eastern Districts of New York, the State of New York, and the United States Patent and Trademark Office. He is also a registered patent attorney. He writes and speaks frequently on patent law and policy, including twice testifying as an invited witness before Congress on the topic of patent reform, and he was named to both Managing Intellectual Property magazine's '50 Most Influential People in IP' list and IP Law & Business magazine's 'Top 50 Under 45' list. http://www.pubpat.org/Board.htm

Audio File (pending): Listen to a Discussion with  an Invited Authority on 20-Year Artificial Monopolization of Computational Ideas  ("Software Patents"): The Open Invention Network (OIN) and The Future of Patent Non-Aggression Pacts

  • Keith Bergelt is the chief executive officer of Open Invention Network (OIN), a company that acquires patents and licenses them royalty free to entities which, in turn, agree not to assert their own patents against Linux and Linux-related systems and applications. Mr. Bergelt holds an Artium Baccalaureus degree from Duke University, a Jurist Doctorate degree from Southern Methodist University School of Law and a Masters of Business Administration degree from Theseus Institute in France. He has previously served as president and CEO of two Hedge Funds focused on the asset value of patents, trademarks and copyrights. And earlier in his career he established and served as General Manager of the Strategic Intellectual Asset Management business unit at Motorola Corporation and served as Motorola's director of Technology Strategy. Mr. Bergelt was a co-founder of the Intellectual Property Advisory Practice within the Electronics and Telecommunications Industry group at SRI Consulting in Menlo Park, California. http://www.openinventionnetwork.com/press_management.php


Session:  View this topic only

Structuring the FLOW of Responsibility

Learning Outcomes: Participants will advance their understanding of conceptual and operational perspectives on a diversity of agreement types associated with the distribution of intellectual resources. Operational methods such as licensing, contributor agreements, employment contract clauses and compliance verification solutions are framed in relation to the new ISO 19600 Guidelines on Compliance Management Systems.  All of this is first grounded in a bedrock theory of responsibility.

Conceptual Foundations of Responsibility

Theory of Responsibility

Management of Responsibility

A Documentation Specification: Software Package Data Exchange (SPDX)

A Compliance Management Process: ISO 19600

Note: An adaptation of ISO 19600 to FLOW development methodology remains to be described. References in this section are, at present, only based on the generic compliance management system guideline.

Management of Intellectual Provenance (IP) Responsibilities

  • Discussion: A company, foundation or project community benefits in several ways when it puts in place an Intellectual Provenance (IP) compliance management process aligned with the ISO 19600 Guidelines:
    • The effort demonstrates tangible "due diligence" in any potential litigation process;
    • This makes it much easier, faster (and thus less expensive) for your lawyers to help you in the event of litigation;
    • Multiple parties can more easily adopt a shared compliance management process:
      • Different organizations involved in commons-based peer production;
      • Different sections/departments within an organization.
    • Sustainable innovation is enhanced with responsible risk management, since team-members know what is in and what is out of bounds.

Licensing: The Delegation Responsibility

The Main Currents of FLOW Licensing

"Similarities; Differences; Choices; Trends; Linkages to Other Types of Agreements"

Dual/Multi Licensing Options (for individual commits and for whole projects)

The FLOW Subscription Model

License Compliance Verification

Policies and Approaches for License Compliance Verification

Technical Analysis of FLOW License Compliance Verification

All of the solutions listed below are themselves provided under FLOW licenses. 

Binary Analysis Tool: The Binary Analysis Tool (BAT) is a modular framework that uses the same approach applied by gpl-violations.org to discover issues in consumer electronics. It can open many types of firmware, detect Linux and BusyBox issues, and report outcomes in XML format. It also features knowledge-base support to allow high fidelity customization for advanced users. BAT is available for free under the Apache license so that everyone can use, study, share and improve it. The project frequently adds new features.
Website: http://www.binaryanalysis.org

Code Janitor Tool: The Code Janitor is a tool released by the Linux Foundation that helps to search source code to make sure that developers did not leave comments that might reveal future products, product code names or discuss competitors and their products. It maintains a database of keywords to scan for, and can be customized as necessary. It is available without charge. Website: http://www.linuxfoundation.org/programs/legal/compliance/tools

Dependency Checker Tool: The Dependency Checker is a tool released by the Linux Foundation that helps identify source code combinations that will lead to dynamic and static linking, and in the context of a license policy framework can create a list of items that need to be flagged before products are released. Website: http://www.linuxfoundation.org/programs/legal/compliance/tools

FOSSology: FOSSology started as an internal project at HP to support governance processes. It is a tool that analyses all the files in a project and reports on the licenses used, basing its results on license declarations and tell-tale phrases. It also has the ability to scan for copyright notices, email addresses and URLs, allowing users to create custom reports. The project is hosted by the Linux Foundation, is available as Free Software, and is maintained in both English and German by developers from HP and other organizations. Website: http://fossology.org

Ninka: Ninka is a lightweight license identification tool for source code. It is sentence-based, and provides a simple way to identify open source licenses in a source code file. It is capable of identifying several dozen different licenses (and their variations). It has been designed to be lightweight, fast and to avoid making errors. It is available under a Free Software license. Website: http://ninka.turingmachine.org

CORAS: Model-Driven Risk Analysis (CORAS Integration Platform, licensed LGPLv2)
http://heim.ifi.uio.no/~ketils/kst/Others/021008.platform-poster.pdf

FLOW Contributor Agreements

FLOW in Employment Contracts


Session:  View this topic only

Foundations of FLOW Management

Learning Outcomes: Participants will view the primary characteristics and needs of FLOW Foundations as typical of not-for-profit multi-organizational member-driven consortia generally. There is a broad pool of knowledge from which to adapt management and governance approaches that can strengthen FLOW initiatives in particular. Participants will become more familiar with the governance bylaws and cultures of selected best-of-breed FLOW foundations.

FLOW Governance Concepts

FLOW Perspectives within the Field of Project and Portfolio Management

"As projects have become increasingly international, some organizations have looked to the open source movement as a model for developing common global standards for project management. Like any global profession, project management faces a challenge of defining and maintaining standards that transcend national and organizational boundaries. The Global Alliance for Project Performance Standards (GAPPS) grew out of a desire among some organizations to create standards that are freely available and independent of proprietary standards. According to Dr. Lynn Crawford of the University of Technology in Sydney, Australia, GAPPS is set to become “the Linux of project/program management competency development."  (NASA Academy, 2008. Global Project Management Standards

"The Manager" and "The Coordinator"

The mid-1900s concept of the "project manager" role was best expressed by Henri Fayol and by Paul Gaddis. Fayol mentioned tasks such as planning, organizing, coordinating and controlling (Fayol & Gray, 1949). And in a 1959 article “The Project Manager” in the Harvard Business Review, Gaddis established that: "A project is an organization unit dedicated to the attainment of a goal — generally the successful completion of a developmental product on time, within budget, and in conformance with predetermined performance specifications." On that premise he outlined the organizational functions of the project manager, the essential competencies associated with that role, and the strategic placement of the project manager strategically “in between” researchers and practitioners, enabling collaboration between “thinkers and doers” as he called them.

The leading edge of project management research today tends more to reflect the role described by Henry Mintzberg, which involves connecting, interchanging, representing, resolving, prioritizing, allocating, delegating, designing, authorizing and negotiating (Mintzberg, 2005). Accordingly, authors of the 2013 Oxford Handbook of Project Management describe project management as entering a “'third wave' of diversified analysis and interpretation following its early narrow technical and operational beginnings". In many ways, and certainly in the realm of Free/Libre/Open Works, the Project Manager is now a Coordinator.

Michael Petter has elegantly characterized "The Coordinator" role as follows: "A coordinator is not a superhero who can be everywhere and do everything for everyone. A coordinator is just another node in the network, not the whole network. A coordinator is there to grow local capacity and to give it a common purpose. A coordinator, unlike a CEO, can't order anyone to do anything. A coordinator’s tools are to understand, to assist, to share, to bind and when required, to lead. What they do can't be a secret to members: they must act openly, cooperatively and accountably. They must acquire an overview of the [initiative], and its issues, and share that with members to bind them to a common purpose. A coordinator with the respect of members, talent, good training and support will acquire the influence they need to coordinate planning and actions." (Petter, 2003

The leaders of a FLOW project, portfolio or foundation require the ability to coordinate amongst participants' diverse mindsets base within multiple autonomous organizations. The nature of this function is well described by Ed Hummel et.al., who observe that while “a firm's business model influences its attempt at building collaborative relationships … each participant in a collaboration must understand how the parties' business models mesh” (Hummel, Slowinski, Matthews, & Gilmont, 2010; Main points summarized here.)

Examples of Great FLOW Management

— How does someone become a participant in their projects?
— How are decisions arrived at?
— Does the license type seem to influence any aspect of governance?
— How does each address copyright ownership?
— How does each address patent non-aggression?
— What unwritten expectations should you keep in mind?

Audio File (pending): Listen to a Discussion with  an Invited Authority on Intellectual Rights Compliance Management and Risk Identification

  • Janet Campbell, Director, Intellectual Property, Secretary and Legal Counsel, Eclipse Foundation. Janet is responsible for the review of intellectual property proposed for inclusion in Eclipse open source projects.  This review includes examining both the provenance of the intellectual property and license compatibility. She is author of the Eclipse Legal Process and maintains the document on an ongoing basis. She is also co-author of the Eclipse Guide to Legal Documents, which has benefitted from the work of several contributors over the years. In this session, Janet will discuss how the Eclipse Foundation manages contributions of source code to Eclipse projects and undertakes due diligence to reduce and mitigate risks due to parties involved in re-use or re-distribution. http://www.microdoc.com/eclipse-embedded-day-2009-video-managing-open-source-legal-issues-janet-campbell

Audio File (pending): Listen to a Discussion with  an Invited Authority on Contract Considerations that Affect Participation in Free/Libre/Open Works

  • Amanda Brock is Director at the international technology law firm, Origin, www.origin.co.uk. Prior to joining Origin, she was General Counsel of Canonical for 5 years. She has an LLB (Hons) from the University of Glasgow, a Masters of Comparative Jurisprudence from New York University and an LLM in IP and IT law from Queen Mary, University of London. She is admitted as a solicitor in Scotland and England and Wales. She is author of "E:Business; The Practical Guide to the Laws", and was an editor of the Butterworth's publication Electronic Business Law, and contributed a chapter on commercial agreements in open source to Walden and Shentov, Free and Open Source Software: Policy, Law and Practise, published by Oxford University Press in 2013. Amanda has lectured extensively on IT and commercial law internationally. http://www.origin.co.uk/team/amanda-brock.php

Audio File (pending): Listen to a Discussion with  an Invited Authority on "Best Practices in Organizing and running a FOSS Foundation")

  • Mark Radcliffe is a senior partner at DLA Piper who practices corporate securities and intellectual property law. He has worked with many software companies, in particular open source companies and is Chair of the Open Source Industry Group at the firm. He assisted Sun Microsystems in open sourcing the Solaris operating system and drafting the "Common Development and Distribution License" (CDDL). He has represented eBay, Accenture, Adobe, Palm, Sony, Siemens Venture Capital, and SugarCRM (the first venture backed open source applications company). On a pro bono basis, he serves as outside General Counsel for the Open Source Initiative and on the Legal Committee of the Apache Software Foundation. He was the Chair of Committee C for the Free Software Foundation in reviewing GPLv3 and was the lead drafter for Project Harmony. In 2012, he became outside general counsel of the Open Stack Foundation. http://www.openstack.org/foundation/staff


Resources

The following items are "in transit" and will be placed within the FLOW Syllabus.

FOSS Governance Fundamentals https://fossbazaar.org/openSourceGovernanceFundamentals
FOSS Policies and Guidelines https://fossbazaar.org/content/foss-policies-and-guidelines

  1. ^ http://creativecommons.org/licenses/by/3.0/legalcode
  2. ^ http://www.gnu.org/copyleft/fdl.html
Tags:
Created by Joseph Potvin on 2014.06.16 at 04:11:57 PDT

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