The Internet & The Market: Reading Assignments

Part IV (Cont): Open Source

Reading

1. GNU Project, GNU General Public License (1991)
2. GNU Project, What is Free Software? (2002)
3. Rick Moen, Linuxcare, Fear of Forking (Nov. 17. 1999)
4. Eric Raymond, The Case of the Quake Cheats (Dec. 27. 1999)
5. Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, First Monday (1999)
6. Paul Festa, News.com, Governments push open-source software (Aug. 29, 2001)
7. David McGowan,  Legal Implications Of Open-Source Software, 2001 U. Ill. L. Rev. 241 (Westlaw)
8. Craig Mundie, The Commercial Software Model (May 3, 2001)
   
9. Eben Moglen, Enforcing the GNU GPL (Sept. 10, 2001)

Thinking

• What are the disadvantages of the Free Software and/or Open Source models?
• What advice would you give in response to this real-life question:

Our (technically savvy) lawyer has advised my company that 'incidental resources' do not a work derive. For example: If I have a student's version of a development environment whose license does not allow me to distribute code compiled with it for commercial use, I am legally allowed to use the environment to create my ANSI C++ code, which, when I compile it with GCC, I am free to use to whatever commercial end I like. This seems fairly intuitive. (After all, you could have written the same thing in a text editor, and the debugging, etc, that you need the IDE for doesn't actually 'show up' in the final code). Here's the kicker: My company wants to translate this to an abuse of the GPL and has been advised 'full speed ahead!'"

"How, you may ask?

Integrate the highly useful GPL code we're eyeing into our only slightly more complex (but much more lucrative) project, thereby saving us at least 30% of the coding involved. The company then go all the way to production with it, but instead of finally compiling the actual project for distribution, they instead compile a bunch of incomprehensible gobbledygook that just happens to compile to the same bytecode. You know the game: globally replace every function name, variable name, and so on from our code with nonsensical names (or random characters), remove all of the comments, and any other form of obfuscation they can introduce. They will then GPL the obfuscated gobbledygook, which isn't much more useful to anyone than reverse-engineered bytecode would be (it is a complex project). 'Voila!' All the benefits of a huge GPL project and countless thousands of volunteer hours and unreadable, incomprehensible source tree.
For the record: I do not think this is right yet, I have not been able to find any precedent for why the GPL should protect against this kind of abuse.

I'm not trying to snitch on my company -- or lose my job, which is why I am posting anonymously -- but hopefully some lawyers out there could point out some iron-clad legal reason preventing this sort of thing. I've read the GPL through at least a dozen times since yesterday, and so far it looks like our lawyer is right.

Optional

1. Eric S. Raymond, The Cathedral and the Bazaar
2. Eric S. Raymond, Homesteading the Noosphere
3. Eric S. Raymond, The Magic Cauldron
4. David Lancashire, Code, Culture and Cash: The Fading Altruism of Open Source Development, 6 First Monday (2001)
5. Chip Patterson, Copyright Misuse And Modified Copyleft: New Solutions To The Challenges Of Internet Standardization, 98 Mich. L. Rev. 1351 (2000) (Westlaw)
6. Visit the Open Source Initiative
7. Visit the GNU Project Philosophy section
8. A debate:
1. Tim O'Reilly, Open Source and the Obligation to Recycle (Dec. 16, 2001)
2. Brett Glass, Not necessarily a good idea (Dec. 23, 2001)
3. ichbin4, rent-seeking is not helpful (Jan. 3, 2002)
9. Lawrence Lessig, Innovation, Regulation, and the Internet, 11 The American Prospect (Apr. 10, 2000)
10. Johan Söderbert, Copyleft vs. Copyright: A Marxist Critique, 7 First Monday (Feb. 2002)

Part V: The Online Lawyer

1.  Topics in e-Lawyering

Reading

1. e-Document Retention
1. Jim Carroll, E-mail promises to challenge corporate sector (Mar. 12, 2002)
2. Andersen, Policy statement: Client Engagement Information - Organization, Retention and Destruction, Statement No. 760
3. Andersen, Policy statement: Notification of Threatened or Actual Litigation, Governmental or Professional Investigations, Receipt of a Subpoena, or Other Requests for Documents or Testimony (Formal or Informal), Statement No. 780
4. Andersen, Copy of two emails  [Note: there used to be links for these documents, now they are gone.  Any idea why?]
   
2. e-Disclaimers
1. Red Earth Software, White Paper, Email disclaimers.
2. Simon Halberstam, The Legal Position of E-mail Disclaimers (March, 2000)
3. Web Pages
1. Office of Disciplinary Counsel v. Palmer, 761 N.E.2d 716 (Ohio Bd. Unauth. Prac., No. UPL 01-1, Dec. 12, 2001) (Westlaw)
2. Florida Bar Assoc. on the regulation of web pages.  Compare the old rule (Jan. 1996) with the current rule (May 2002)
4. Other random e-Policies
1. Alex Berenson, New York Times, Enron Fired workers for Complaining Online (Jan. 21, 2002)
2. Robert J. Ambrogi, Lawyer-Client E-mail OK, But Watch The Spam (1997) (google cache)
3. Charles R. Merrill, Revisiting The Question Of Attorney/Client Internet E-Mail Encryption,  6 NO. 12 Internet Newsl. 5 (March, 2002) (Westlaw)
5.  Joel Michael Schwartz, Practicing Law Over the Internet: Sometimes Practice Doesn't Make Perfect, 14 Harv. J. L & Tech. (2001)
6. DC Bar Opinion No. 316: Lawyers' Participation in Chat Room Communications With Internet Users Seeking Legal Information (July 2002)
7. Luci Scott, Internet-Surfing jurors vex judges, National Law Journal (Dec. 2, 2002)

Thinking

1. Your law firm web page is viewable in every state.  Does this create unauthorized practice of law problems, or amount to illegal advertising in states where you are not admitted?
2. Your partner likes to hang out in chat rooms and give legal advice under an AOL 'Screen Name'.  Should you be concerned?  Does it matter what the screen name is?
3. The Red Earth Software White Paper was prepared for an English audience and the Halberstam essay is by an English lawyer.  Is what they say good advice in the US? Why?
4. What would you need to know before preparing an e-document retention/destruction policy for a client?
5. Which of the following are good or bad advice:
1. "if drafting or reviewing a retention policy for a client, make certain that the policy doesn't become the most damaging piece of evidence in the case. While it may be advisable for the policy to be worded so as to make compliance compelling, it should not give  the impression that the client has anything to hide."
2. "a retention policy needs to take into consideration the storage capacity of the particular network in use. The retention policy also should clearly delineate regularly scheduled deletions of e-mails stored on the network, laptops, Palm Pilots and any other company owned equipment."
3. "Delete all e-mail 30 days after receipt to save search costs in event of ever being subjected to discovery."
4. "Policies for e-mail should be the same as policies for paper."
5. "Forbid all e-mail forwarding outside the firm."
6. "Assume more than half of the employees will not follow the policy."
6. Does the following quote from Lewy v. Remington Arms Co.; 836 F.2d 1104, 1112 (8th Cir. 1987) (citations omitted) alter any of your answers?


First, the court should determine whether [the] record retention policy is reasonable considering the facts and circumstances surrounding the relevant documents. For example, the court should determine whether a three year retention policy is reasonable given the particular document. A three year retention policy may be sufficient for documents such as appointment books or telephone messages, but inadequate for documents such as customer complaints. Second, in making this determination the court may also consider whether lawsuits concerning the complaint or related complaints have been filed, the frequency of such complaints, and the magnitude of the complaints.

Finally, the court should determine whether the document retention policy was instituted in bad faith.  In cases where a document retention policy is instituted in order to limit damaging evidence available to potential plaintiffs, it may be proper to give an instruction .... Similarly, even if the court finds the policy to be reasonable given the nature of the documents subject to the policy, the court may find that under the particular circumstances certain documents should have been retained notwithstanding the policy. For example, if the corporation knew or should have known that the documents would become material at some point in the future then such documents should have been preserved. Thus, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.

Doing

What do you think of this disclaimer?  Or this one?
Is this disclaimer the best on the web, or can you find a better one:

All the information on our World Wide Web page is as accurate as we can make it. Alchemy Mindworks Inc. accepts no responsibility for any loss, damage or expense caused by your use of these pages, however it happens. If you can figure out a way for any of this to cause you loss, damage or expense, you have a sneakier mind than any of us. This page and all dependent pages are copyright © 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001 Alchemy Mindworks Inc. No portion of these pages may be reproduced in whole or in part without the express written permission of the copyright holders.

Should you fail to register any of the shareware listed at this page and continue to use it, be advised that a leather-winged demon of the night will tear itself, shrieking blood and fury, from the endless caverns of the nether world, hurl itself into the darkness with a thirst for blood on its slavering fangs and search the very threads of time for the throbbing of your heartbeat. Just thought you'd want to know that.

Optional

1. State policies on electronic access to court records (.pdf) (July 5, 2001)
2. Patriot Saints, Judicial Watchdog Website Ordered Down by Judge [why Palmer's web site, amoralethics.com, is no longer on line]
3. Simon Romero And Geraldine Fabrikant, New York Times, Secret List of Potential Suitors for Global Crossing Exposed, (April 10, 2002)
4. Raymond R. Panko & Hazel Glenn Beh, Monitoring for Pornography and Sexual Harassment, 45 Comm. ACM 84 (Jan. 2002) (.pdf)
5. Vivien K.G. Lim, Thompson S.H. Teo & Geok Leng Loo, How Do I Loaf Here? Let Me Count the Ways, 45 Comm. ACM 66 (Jan, 20002) (html) (.pdf)

2.  Disputing Online

Reading

1. American Bar Association, Task Force on E-Commerce and ADR, Guidelines for Recommended Best Practices for Online Dispute Resolution Service Providers (Oct. 28, 2002)  (.pdf) (word)
2. ICANN, Uniform Dispute Resolution Policy (UDRP) substantive Policy & procedural Rules
3. Michigan Act No. 262 (Jan. 9, 2002) (also known as H.B. 4140 (2001)). (.pdf) (txt)
4. Michigan Supreme Court, Proposed Addition of Subchapter 2.700 and Amendment of Various Other Provisions of the Michigan Court Rules (March. 28, 2002) (you only need to read pp. 1-9 of this .pdf link)
   
5. UK Lord Chancellor, Money Claim Online
1. Who Can Use This Service
2. Who cannot use this service
3. Getting Started

Thinking

To what extent does the ICANN UDPR comply with the ABA's  Best Practices?

To what extent does the Michigan proposal comply with the ABA's Best Practices?

  Look at each set of rules again. If you were representing the plaintiff or the defendant, would you rather be subject to these rules or in court? Why?

Consider the purpose of proposed Amended Rule 8.115 of the Michigan Rules of Court:

Courtroom Decorum
(A) Display of Flags. The flags of the United States and of the State of Michigan must be displayed in a conspicuous place adjacent to the bench at all times and be visible at some point during the transmission of an Internet broadcast of the Cyber Court when court is in session.

Optional

1. American Bar Association, Task Force on E-Commerce and ADR, Addressing dipsutes in Electronic Commerce (Oct. 10, 2002) (.pdf) (word)
2. Froomkin,  ICANN's "Uniform Dispute Resolution Policy"– Causes and (Partial) Cures  67 Brooklyn L. Rev. 605 (2002)
3. Michigan CyberCourt.net

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