July 2011

Article Published in Landslide Magazine

An article I've written has been published as the lead submission for the July/August 2011 edition of Landslide Magazine, the official publication of the American Bar Association's Intellectual Property Section. The article is entitled, "Open Source Licensing and the Viability of the Free Software Movement." The article discusses the impact of the Ninth Circuit decision of MDY Industries v. Blizzard Entertainment. In that case, the Ninth Circuit elucidated a new rule that a contract obligation will be considered a license condition only if the obligation contains a "nexus" to the exclusive rights accorded to the copyright owner. The Ninth Circuit's reasoning as applied to open source licenses would render notice, attribution and copyleft obligations in those licenses as mere contract covenants and not scope-limiting conditions, foreclosing the possibility of recovery of copyright remedies. The ruling therefore casts considerable doubt on the ability of open source licensors to effectively enforce these obligations.

Think your license agreement effectively specifies the law of your choice? Think again.

Choice of law is often a contentious point in license negotiations.  Each party fights for that party's home country's laws to be applied exclusively in the event of any disputes between the parties later.  In order to resolve the impasse that arises in this context, it is quite common for parties to agree on a neutral forum's laws as a compromise.  Whether this neutral choice would actually be enforceable, however, may depend on whether there is a reasonable or logical basis for this choice.

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