The Responsible Developer

Version 2.1 by Joseph Potvin on 2014/04/08 11:09

Developers and managers of free/libre/open works are involved with globally-distributed co-authors, co-managers and partner organizations. Several domains of law affect the people in their capacities as individuals, contractors, sub-contractor or employees and their organizations. And there are differences in the semantic meanings to words across languages, cultures and jurisdictions. When working in a distributed project, one needs to pay attention to how formal laws and contracts are codified within different sub-national, pluri-national, and multi-national legal jurisdictions. This is terribly complex.

And yet, try as they might, developers and managers can rarely get face-time with, or written assessments from qualified legal counsel, in order to obtain timely guidance prior to making legally significant project decisions. Furthermore, even when developers and managers do manage to communicate directly with lawyers, only a small proportion of lawyers are directly familiar with technical aspects of software systems. An Explanation of Computation Theory for Lawyers is an excellent primer, but this is probably more than most lawyers have the time or inclination to deal with. It is generally more pragmatic for developers and team managers to become functionally conversant in the lawyers' realm, than the other way around.

With greater familiarity with legal constraints and principles governing their day-to-day work, developers and managers are better able to avoid problems in the first place, and to manage risk responsibly and intelligently:

  • To reduce their errors and omissions;
  • To understand the risks they are accepting;
  • To effectively communicate the technical substance of their work in a manner that is parsed into legal concepts that are meaningful to lawyers; and,
  • Generally, to build more effective lines of communication with their corporate or hired legal counsel. 

But how much law should non-lawyers learn? What topics and sources should they pursue, to what level of detail? Is it helpful or confusing for non-laywers to read case law, which tends to be highly adversarial, anecdotal and evolutionary? Or should non-lawyers read only the more stable synopses of legal principles? There are different legitimate opinions about this.

The FLOW Syllabus does include selected case law readings, but the OSI's Management Education Working Group cautions that learning from case law is like analyzing a scene in the middle of a movie, whereas learning from legal principles is like analyzing the thematic message of the whole movie. Both are useful, but case law alone and out-of-context can lead non-specialists in particular to misunderstand the whole picture.

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