The FLOW Syllabus (Working Draft)

Version 9.21 by Joseph Potvin on 2014/02/02 21:34

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Under Construction (Version 1.20)

  • The FLOW Syllabus is presented on a wiki so that it can be refined and extended through YOUR direct participation. Occassional 'snapshots' of this working draft will be given version numbers and will be posted on the main OSI site at http://www.opensource.org.
  • What you are looking at now is a working version of the syllabus that's frequently being edited. There is not yet a 'snapshot' that has completed a round of peer review through the OSI Working Group on Management Education.
  • The Working Group Chair, Joseph Potvin, can be reached at  jpotvin@opman.ca and 819–593–5983.
  • The content is provided in a single long page for the time being. Later versions may be separated by module and sub-module onto separate pages, linked through a multi-page table of contents.
  • Most links work, but many will not work until all sub-pages are brought over to this location.
  • All links that currently expose the URL are in the process of being converted to hyperlinks, each also with a footnote that displays the URL directly at the botto of the the page, which will facilitate offline use.

TABLE OF CONTENTS

  1. Module: Methodology of the FLOW Syllabus
    1. Overview of the Syllabus Structure, Methodology and Scope
      1. Pre-Course Coordination
      2. Syllabus Structure and Methodology
    2. Scope
    3. How to Make it Easier for Corporate Legal Counsel to Help You
    4. Decision-Making Under Uncertainty at the Intersection between "Source Code" and "Civil Code"
    5. Reducing Uncertainty through Intellectual Provenance Management
    6. FLOW: "Free/Libre/Open Works" ≡ Values + Value
    7. Internal Organizational Context
  2. Module: FLOW Business Risk & Value Management - Copyright / Droit d'auteur
    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
  3. Module: FLOW Business Risk & Value Management - Artificial Monopolies on Computational Ideas ("Software Patents")
    1. Concepts, definitions, boundary of application (Canada, US, other)
    2. Current Developments and Trends (defensive patents; license clauses)
    3. Real World Patent Court Cases (what went wrong; reasons for decision)
  4. Module: FLOW Business Risk & Value Management - Licensing, Contracting, Trade Secrets
    1. License Similarities; Differences; Choices; Trends; Linkages to Other Types of Agreements
  5. Module:Free/Libre/Open Foundations and Their Ways
    1. The Free/Libre/Open Way Part 1: FLOW Governance Concepts
    2. Real World Contract Court Cases (what went wrong; reasons for decision)
    3. Software License Risk-Minimization and Value-Maximization in the Organization's Context
    4. The Free/Libre/Open Way Part 2: Multi-Entity Team and Organizational Performance
    5. The Free/Libre/Open Way Part 3: Case Analysis
    6. Review, Integration, Operational Implications

Module: Methodology of the FLOW Syllabus

General Disclaimer:

 1. The information provided in this course is intended to strengthen self-directed learning as individuals and teams to enable 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.
 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 defensive right off the bat: TINLA: This is not legal advice; IANYL: I am not your lawyer; and IANAL: I am not a lawyer.
 3. Nothing represented in the syllabus can be assumed to represent views of a particular individual or organization, even when an organization hosts and pays for delivery of an instance of the course.
 4. This course syllabus is shared under the most recent versions of both the CC-BY-SA1 and GNU-FDL2 licenses. If you have never actually read those licenses, please take a few minutes to do so. Each of the third-party materials referenced in the syllabus is under its own respective copyright and terms of distribution.

Overview of the Syllabus Structure, Methodology and Scope

Pre-Course Coordination

Syllabus Structure and Methodology

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

A benefit of this course can be to build more effective lines of communication between the technical developers/managers of free/libre/open works for your organization and your corporate legal counsel. The sources below report a trend whereby corporate legal counsel has been brought into more of a core business management role than in the past. The corollary is that developers/managers of free/libre/open works must become effective in their ability to communicate with legal counsel. "An Explanation of Computation Theory for Lawyers":http://www.groklaw.net/article.php?story=20091111151305785 is excellent, but is probably more than your lawyers have time to read. They will often need to rely directly upon you, as developers and development team managers, to explain what you do, in a manner that is parsed or ported into legal concepts.

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

Reducing Uncertainty through Intellectual Provenance Management

W3C PROV Family of Documents

☏ 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/
  • Pamela Jones is the Founding Editor (2003-11), then Co-Editor and was for a decade the primary contributor to Groklaw. Applying open-source methods to research, her blog grew to become a top source of news and analysis on litigation and legislation relevant to free/libre/open source software, visited by millions of daily visitors with legal and technology backgrounds. Her most prominent coverage was the twisted decade-long SCO-initiated cases relating to copyright claims; various cases that address the issue of software patents being patents on mathematics, and the Oracle v. Google patent case in cooperation with Mark Webbink. She also initiated articles asking the community to search for prior art. The 16th of May 2013 was Groklaw's 10th Anniversary  http://www.groklaw.net/articlebasic.php?story=20130515162826518  PJ ended her involvement on 10 August 2013 http://10questions.peppla.com/pj.html.html when it became apparent that the US government would not respect the Moral Rights of her sources to remain anonymous. See: http://cyber.law.harvard.edu/property/library/moralprimer.html 

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

Various domains of law affect computer program developers, and managers, and the organizations they work for. Their own legal incorporation, and that of each of their clients, may be state/provincial or national. And yet the developers, and managers may participate in free/libre/open works with globally-distributed co-authors and co-managers. Many multinational/multilateral organizations have employees located in multiple countries who participate in free/libre projects under rules of employment particular to their state/provincial or national jurisdictions and types of employers (commercial, charitable, educational, governmental, multilateral). In addition to the differences of semantic meaning of words across languages and contextually different concepts across cultures, formal laws and contracts are codified within different state/province, national, pluri-national, and multi-national legal jurisdictions. How should developers and development team managers take into account this deeply heterogeneous legal environment? What obvious pitfalls can be avoided? What risks must just be accepted?

  • "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.

FLOW: "Free/Libre/Open Works" ≡ Values + Value

Internal Organizational Context

  • Current Practices
  • Concerns and Challenges
  • Interests and Opportunities

Module: FLOW Business Risk & Value Management - Copyright / Droit d'auteur

Preparatory reading:

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

Module: FLOW Business Risk & Value Management - Artificial Monopolies on Computational Ideas ("Software Patents")

Watch: http://patentabsurdity.com/watch.html (30 min)

Concepts, definitions, boundary of application (Canada, US, other)

On Archimedes:"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)

Current Developments and Trends (defensive patents; license clauses)

☏ 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

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

☏ 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

Brainstorming a Worst Case Scenario Business Survival Guide on Computational Idea Patents. Risk-Minimization and Value-Maximization in the Organization's Context

  • Current Practices
  • Concerns and Challenges
  • Interests and Opportunities

Module: FLOW Business Risk & Value Management - Licensing, Contracting, Trade Secrets

Preparatory Reading on License Proliferation http://www.rosenlaw.com/pdf-files/LicenseProliferation.pdf (3.5 pgs)

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

Module:Free/Libre/Open Foundations and Their Ways

The Free/Libre/Open Way Part 1: FLOW Governance Concepts

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

☏ 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

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

  • Current Practices
  • Concerns and Challenges
  • Interests and Opportunities

The Free/Libre/Open Way Part 2: Multi-Entity Team and Organizational Performance

☏ 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

The Free/Libre/Open Way Part 3: Case Analysis

— 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?

Preparation for the Session: 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

Review, Integration, Operational Implications

  • The next two weeks
  • The next two months
  • The next two years
  1. ^ http://creativecommons.org/licenses/by-sa/3.0/legalcode
  2. ^ http://www.gnu.org/copyleft/fdl.html
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Created by Joseph Potvin on 2014/06/16 13:11
    

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