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Chicken Little and Age-Appropriate Explanations

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OSS

n the mid 1990s, when I first began running into open source Latest News about open source in my practice, I noticed that open source had a very strange effect on intellectual property lawyers. It was a Chicken Little situation, but instead of crying "the sky is falling" they were crying "the code is infringing."

Nearly ten years later, very few intellectual property lawsuits have actually been filed relating to open source. Roughly, the scorecard looks like this:

  • Trademark infringement suits: 1 (MySQL-NuSphere)

  • Copyright infringement suits: 1/2 (SCO, after modifying the complaint)
  • Trade secret infringement suits: 1/2 (SCO, original complaint)
  • Patent infringement suits: 0

The sky did not fall.

But it is cheap to laugh at us lawyers, who, after all, are paid to be frightened on behalf of others. The only upside for lawyers being reasonable is that their clients like them. The downside is that lawyers get sued for malpractice if they don't give conservative enough advice.

The lawyer who told Bill Gates' competitor not to sign IBM's non-disclosure agreement -- thereby foregoing his opportunity to become the largest software company in the world -- will never be threatened with malpractice claims. But his client probably didn't like him much.

What Were They Scared Of?

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