Alan Bunbury

It seems to me that the IIPA have this backwards.

Obviously there is growing dissatisfaction, amongst many, with the restrictions imposed by intellectual property law and the potential of the current IP protection framework to act as a barrier to innovation and the free flow of knowledge and ideas. Nothing wrong with that; people are allowed to be dissatisfied with the law, they are just not allowed to break it.

This dissatisfaction can be--and is being--expressed in a number of ways. One way is resorting to piracy and other violations of intellectual property law. Another is campaigning for changes to the current framework, such as increasing the exceptions to copyright law and weakening the protections afforded to intellectual creations. And yet another is licensing intellectual creations under licenses which guarantee maximum user freedom and which prevent people from taking away that freedom.

What has me all confused about the IIPA's stance is that the third of those options--the open source option--is the LEAST destructive to the current intellectual property regime. It is based on mutual consent and utilizes existing legal principles; it is achieving its aims without any major reforms to the current system. It provides a solution to many of the real and perceived problems with the law in this area, while allowing the law itself to remain essentially intact and substantially unchanged. In a way, it could almost be said to defend or justify the current system.

That doesn't mean that open source advocates think the law is just fine the way it is, many of us want changes to the law in this area. But if you attack the open source movement, then agitation with the shortcomings of the current law will lead to more people utilizing the other options I mentioned above, which would if nothing else be more destructive to the current protection framework. So, even on the IIPA's own terms, this position does not make sense to me.

I think this channel is an excellent idea, and long overdue. I do, however, wonder if this statement:

"As we kick off the opensource.com law channel, I'm anticipating many such serendipitous encounters with people interested in the legal issues around free and open source software. This channel is intended as a forum for discussion of licensing, patent, trademark and other legal issues."

perhaps underestimates the immense potential which the channel has to generate interesting and productive discussion on the nature of the legal system itself.

In the other channels, discussion appears to revolve largely around the development of open source models of government, business etc. I think this approach could be similarly beneficial here. There is room for discussion not just on legal issues relating to open source software, but also on the relevance of free and open source philosophies to the law itself--its study, development and application.

Of course, there are many differences between law and software, so no easy analogy can be drawn. However, I do think that the principles which guide the development of open source software and which have made FOSS so successful can be applied to the legal world in many respects. This would involve taking the experience of open source projects which have been successful in other areas and generalising the lessons learned from these experiences in order to form general principles which can be applied to various aspects of the law and the legal system.

Speaking from a common law perspective at least, it is certainly true that the development and application of the law requires a free flow of knowledge between a pool of "contributors". The more knowledge that is effectively conveyed by parliament to the courts in the passing of legislation, the better equipped courts are to uphold parliament's intention when it comes to interpreting and applying that legislation. Similarly, court systems in common law jurisdictions have mechanisms to facilitate the flow of knowledge between judicial "contributors", such as the publication of judicial opinions, even by dissenting judges. Further still, a strong and healthy academic culture, visible through (among other things) a proliferation of highly regarded peer-reviewed law journals and reviews, can aid the development of the law by expanding the pool of contributors and creating a wider range of sources from which knowledge and ideas may flow to lawmakers such as legislators or judges.

That's just one example. What about trial by "a jury of your peers"? Peer-based application of the law in its most obvious sense.

But, does the existing state of the legal system really maximise the potential of open source principles? Are there constraints or restrictions being placed on the ability of the free flow of knowledge between an expanded pool of contributors to aid in the development of the law--such as an unduly rigid doctrine of stare decisis, a lack of clarity in judicial reasoning, a failure by courts and legislators to have regard to popular or academic opinion, etc.? And does the jury system in its present state really do justice to the idea of a trial by one's peers--or is it too small, too unrepresentative, too vulnerable to abuse? Perhaps most importantly, what are the other areas where open source principles have had, or could have, a substantial and beneficial impact? These are questions which it is very much in everyone's interests to discuss and, hopefully, to answer.

And again, I have only described, briefly, the common law positions on these issues. I have no idea what the situation is in civil law jurisdictions, but I would love to find out. That goes back to Rob Tiller's observation above: "It's great to find someone who knows all about something you want to learn about."

Linus' law, as formulated by Eric Raymond, states: "Given enough eyeballs, all bugs are shallow." There is little doubt, I think, that the law has plenty of bugs. Considering the extensive way in which the law impacts on so many of us every day, there should be no shortage of eyeballs either. It is in that light that I think a discussion of how we might build a truly open source legal system would be beneficial. Now I know that the OpenLaw/about says that this channel will deal with "all forms of interaction between open source and the legal system", and I also realise that the law relating to open source software has immediate practical as well as theoretical importance to Red Hat and other proponents of FOSS. But I hope I am not the only one who hopes to see this channel used to discuss the development of a truly open-source legal system, rather than just an open-source-software-friendly legal system.

I hope that made a bit of sense at least!