Posted by: commonsresource | March 24, 2010

The first thing we do, let’s kill all the lawyers

The AustralianIT website posted a very informative article last week entitled Open source enables innovation without lawyers or fees.  As you might expect, the “without lawyers” part definitely got my attention!  In fact, it felt like a contemporary echo of the often cited but poorly understood Shakespearean quote that is the title of this post.

In Makesh Sharma’s interview with Roger Burkhadt, Ingress CEO, Roger makes the point that “The open source model allows us to bring together the best minds in the world to work on a problem” and allows engineers from different companies to “collaborate without months of legal work.”

As a veteran technology lawyer, I strongly agree with Roger’s observation.  Not only can bi-lateral collaboration between companies often take “months of legal work” ( especially where the companies are major players), any form of multi-lateral collaboration will be even more taxing in terms of time and legal and business resources.    In this context, the commons sourcing platform provided by open source software allows and  encourages multi-company collaboration without the lawyer who would otherwise be brokering the complex deals among the company players.

That being said, there remains a vital role for open source software lawyers like me in working with companies to understand the legal ramifications of the commons sourcing model.  This includes, by way of example, helping companies appreciate the contribution rules (and risks) and their license rights (and obligations) with respect to the open source software that is both the subject and result of the collaboration.

As set out in a recent brochure for the Chief Justice of Ontario’s 11th Colloquium on the Legal Profession, “”When one of the rebels in Henry VI says: “The first thing we do is kill all the lawyers,” he knew that the legal profession stood in the way of his plans for revolution.  Shakespeare was not disparaging lawyers.  Rather, he was identifying the fundamental role the legal profession plays in society.”  Even if this analysis falls into the “myth of ‘correction'” pointed out by Seth Finkelstein  in his 1997 The Ethical Spectacle article,  Roger’s point that “The open source model will over time evolve to become the dominant model in the software industry” ensures that open source software lawyers in particular, and commons sourcing lawyers in general, will perform an increasingly fundamental role in this sector of society.

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