Ten things your lawyers need to know about open-source

It seems to me that many lawyers are either afraid of Open Source or simply do not comprehend what Open Source stands for. Yet lawyers have been using the legal equivalents of public domain, GPL, Open Source, and FLOSS for centuries.

Using "conveyancing" in its wider sense relating to the art of legal draughtsmanship rather than just land transactions, conveyancers have always built upon the written words that have preceded them. Every legal document, be it a contract, a Will, a pleading, a Court Order, or merely a lawyer's "nasty letter", is the distillation of every germane written word that is within reach of the author.

Go to any Law library and you will find weighty tomes of "legal precedents", which are not the Court decided cases (these are called the "Law Reports"). These "legal precedents" are examples of phrases, clauses, and often whole legal documents. They are the source code!

If you seek an example of GPL-like protection of legal source code, look no further than an Act of Parliament. In the Westminster system, an Act of Parliament is Crown copyright. But how does the Law demand, on the one hand, that ignorance of the Law is no excuse but, on the other hand, uphold Parliament's right to restrict distribution of the statutes it enacts?

The answer lies simply in the proposition that the final action that turns a Bill into Law -- the signature of the Head of State -- although usually private in nature, is an act of publication. And that publication is about as close to a Creative Commons licence as you can get.

RMS invented the GPL, but he didn't invent the process -- and, importantly, he never claimed to have invented it. Torvalds stood upon the shoulders of giants, as did Newton before him. And so has every lawyer who ever graduated from law school. But, unlike RMS, Torvalds and Newton, lawyers don't realize it.