Heading to New York?

I will be in New York on August 8th to speak on a panel at this year’s American Bar Association (ABA) Annual Meeting. The panel, titled “Life after GPLv3: New Developments in Open Source Software Licensing” is sponsored by the ABA Section of Intellectual Property Law and is being held at 2:00 PM on the 8th at the Waldorf-Astoria.

We have structured the panel as a series of brief presentations by the panelists followed by a general Q&A session on the presentations. While the title for the panel is a bit innocuous, the presentations will cover a variety of relevant open source topics, including: GPLv3 and the GPLv3 drafting process (including differences between GPLv2, GPLv3 and other open source licenses), open source patent concerns, legal strategies for using open source software in connection with proprietary software, and issues raised by open source software under the Sarbanes Oxley Act of 2002 and other corporate regulations.

My presentation will include a brief history and update on the “BusyBox lawsuits” brought over the last year by The Software Freedom Law Center (SFLC) on behalf of its clients Erik Andersen and Rob Landley (the two principal developers of the BusyBox open source utility) alleging copyright infringement based on a violation of version 2 of the GNU General Public License (GPL). I will be including information based both on my personal experience working with defendants in several of the BusyBox cases as well as discussions with others involved in the suits. Details on the panel and the other panelists are included below.

For those of you based in New York or headed to the ABA Annual Meeting, please let me know if you would be interested in getting together while I am in town.

2008 ABA Annual Meeting
Section of Intellectual Property Law

2:00 p.m. – 3:30 p.m.
CLE Program: Life after GPLv3: New Developments in Open Source Software Licensing.
co-sponsored by the Section of Science & Technology Law

The past year has seen significant legal developments concerning open source software licensing, most notably, the publication of the GPLv3 license, which is much more comprehensive than GPLv2 and attempts to address the changes in software law over the past 15 years, as well as initial efforts to enforce open source software license requirements in the courts. This panel will explore the new GPLv3 license, how it differs from GPLv2, the status of GPLv3 adoption and recent litigation concerning the enforcement of GPL and other open source license terms affecting GPLv3 or other open source license use.

Moderator
Sue Ross, Fulbright & Jaworski L.L.P., New York, NY

Speakers
Gabe Holloway, Leonard, Street and Deinard, Minneapolis, MN
Terry Ilardi, IBM Corporation, Armonk, NY
Jason Haislmaier, Holme Roberts & Owen LLP, Boulder, CO
Jim Markwith, Microsoft Corporation, Redmond, CA

Intellectual Property and Sarbanes-Oxley?

What does the Sarbanes-Oxley Act of 2002 (or “SOX”) have to do with intellectual property you ask? While these two topics have historically made for strange bedfellows, the importance of managing intellectual property assets and issues surrounding those assets under Sarbanes-Oxley is increasingly becoming a potential trap for the unwary.

Passed into law in 2001 in large response to the then-recent corporate corruption and fraud scandals involving the likes of Enron, WorldCom, HealthSouth, Tyco, Adelphia and others, Sarbanes-Oxley represents one of the most sweeping changes in U.S. securities laws in the past 70 years. In the wake of these scandals, SOX attempted to bolster investor confidence by increasing transparency and accountability in financial accounting involving public companies here in the U.S. SOX has proven, however, to be much more than a law addressing financial accounting. SOX is written broadly to trigger obligations with respect to any and all assets that have a material impact on the financial condition of a public company — including IP assets.  As intellectual property assets have come to comprise an increasingly more material part of the value of most all companies (not just “technology” companies, but all companies that rely on technology to conduct their day-to-day operations), intellectual property has come to play an ever more material role in the financial condition of those companies. As a result, intellectual property assets and the management of those assets and issues relating to those assets has (and will continue) to pose an increasingly more important issue with respect to SOX compliance (notably, even as to companies for which it has not posed an issue in the past). While the issue of SOX and IP will be front and center for public companies, even private companies that plan in the future to become publicly traded or that are planning an exit by merger or acquisition with a public company, should be wary of the potential risks posed by IP under SOX.

Earlier this week I covered this topic and discussed the growing importance of the management of intellectual property assets under Sarbanes-Oxley in a presentation at the 2008 Intellectual Property Institute in Denver. I had the pleasure of sharing the stage for the presentation with Dean Salter, one of my partners at Holme Roberts & Owen and truly the “dean” of the Denver securities law community. As usual when presenting with someone of Dean’s stature, I probably ended up taking away from the presentation just about as much as I contributed. The materials from the presentation are available online if you would like to read more about this topic. We will also be giving the presentation as a webinar later this year. Stay tuned for details.

OSBC 2008 Presentations Online

Last week marked the completion of another very successful Open Source Buinsess Conference (OSBC) in San Francsico.  Presentations from OSBC 2008 are now online.

Included among those presentations is my presentation on Putting Open Source Compliance to Work (On Your Own Terms).  The presentation covers a lot of ground, but is focused on providing companies that use open source software with tools to deal with the increasing level scrutiny of open source that has arisen with the ever-widening variety of roles in which open source software is being put to work by those companies.  Among the examples of this increased scrutiny, the presentation covers:

– The BusyBox lawsuits brought by the developers of the BusyBox open source utility against Monsoon Media, Xterasys, High-Gain and Verizon based on alleged violations of version 2 of the GNU General Public License (GPL);

– Renewed open source license enforcement by GPL-violations.org Project in Europe against Skype and others;

– Enforcement of software patents against open source software in cases involving RedHat and Novell; and

– The increasing trend of disclosures around open source usage and liability made by public companies in their filings with the SEC.

The presentation makes the point that companies that are not taking steps to implement open source compliance measures on their own terms are increasingly finding themselves being required to comply on terms set by one of these other groups.  The presentation discusses tools companies can use to put open source compliance to work on their own terms to address this changing source enforcement landscape, including:

– Strategies to address increased diligence and scrutiny from customers, investors, shareholders and others;

– Tools to evaluate the changing risks posed by open source;

– Current best practices for implementing compliance measures to address open source compliance risks; and

– Techniques for taking open source compliance efforts beyond merely risk mitigation to help add value to your business.

I encourage you to download a copy of the materials.

IP “Crash Course” Online

Thanks to the sponsorship of Silicon Flatirons, TechStars, the Longmont Entrepreneurial Network (or “LEN” for short), and Colorado Capital Group we were able to put on a great Intellectual Property “Crash Course” for Entrepreneurs presentation at the end of last month before a standing-room-only crowd at the University of Colorado School of Law. Thanks to all of you who attended the event (especially those who had to sit in the aisles or stand during the presentation)!

As I mentioned during the event, the presentation was recorded. While I had hoped to have had the audio portion of the presentation online by now, we are still working to have the audio synchronized with the slides before posting. Since many of you have been (patiently) waiting for the presentation to be posted online, I have gone ahead and posted a copy of the slides to this site. I am hoping that this will suffice until we can get the audio synchronized and uploaded. Please stay tuned for the audio — and thank you for your patience. ;-)

BSC SaaSy Slides Online

Albeit a bit belatedly, I would like to thank the Boulder Software Club and my co-presenters Kirk Holland (General Partner at Vista Ventures), Don Hazell (EVP Worldwide Sales and Field Operations at Rally Software) and Jim Pollock (President of AWhere Inc.) for helping to put together a great event on The Challenges of Software as a Service (SaaS).  We ended up having a super turnout for the event, even on a snowy night here in Boulder — so super that I am told we set an attednence record for the Boulder Software Club.  In addition to a background on SaaS in general, the presentation covered a broad swath of topics, including revenue models, platform design, R&D,  sales and compensation, marketing, support, partnering opportunities, distribution channels, valuation and funding, exit scenarios and (yes) legal issues too (although legal issues were far from the main focus of the presentation).  It seemed that everyone came away from the event with a lot of new knowledge, ideas and perspectives on the topic of SaaS (I know I did).  For those of you who have been looking for the slides from the presentation (the audio was not recorded as far as I know), you can find a copy online at the Boulder Software Club web site.