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All content by Kyle E. Mitchell, who is not your lawyer.

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June 17, 2019

Dark Arts at Daybreakthe end of club rule in open source law

Kate Downing just published The Dark Practice of Free & Open Source Software Law, followed by The GPL Cooperation Commitment—Coincidentally, Great for Lawyers. If you don’t subscribe to Kate, you should. I put her on my blogroll for good reason. Now I have another.

Kate drew her first post to a close with two gut punches:

In short, becoming an open source attorney is less about learning the law in a particular field and more about being plugged into a particular community. …

… Breaking into this field is just plain hard and strongly depends on having the right connections.

My immediate, strong reaction is twofold:

First: Kate’s right.

Second: Fuck that.

Law is not code is not business. There are all kinds of formal barriers to entry—law school for most, the bar exam, then an utterly unstructured apprenticeship and a lot of hard knocks, hopefully—to become a functionally independent lawyer. That protectionism has inured lawyers to all manner of quackish mysticism and noble lie. It has given the profession license, in its own special sense, to pretend that what we do derives from great mysteries, aided in perception by the deft use of stage property. It has authorized us to hold out all manner of everyday, workmanlike know-how as “practice wisdom” irreducible to writing, and therefore unattainable by anyone without personal invitation, in the form of a subordinate work position.

It is a closed system. Closed for the public’s protection, we say. Closed for our protection, the public says. But as for me and my house—transactional lawyering—I tend to side with the masses.

Openness is an ideology, but it works on its host to make all that follows seem involuntary. I caught openness, from software, long before my legal career.

I remember, in my first legal writing class, receiving the capably designed, professionally printed, heavy-gloss-stock folder from Lexis Nexis with my code to register for a free law-student account. I remember printing case law on one of four printers, branded à la Coke and Pepsi , installed in the public law library of my public law school, gratis, from pricey database oligopolists. I remember how utterly wrong it felt—politically, technically, ethically—that the law I was studying should belong to the public, but appear on-screen by private subscription only. I remember how wrong it felt that the institution entrusted with my legal education not only acquiesced to but invited private middlemen to deal my first hit of digitized legal info, for free.

I started a nonprofit to publish free case law during law school. (See Texas Secretary of State file number 0801664288.) I built a book scanning rig. I “borrowed” dusty, forgotten United States Reports from the law review office until they filled a good part of my small apartment. I tried to buy out the Law Library Microform Consortium’s scans of the case reports, stowed somewhere in a mine, for public access, and failed. I priced dead-tree copies out of a defunct federal court house, decommissioned by a hurricane, for transcontinental shipping and appropriate dissemination. I did what I could, which wasn’t much. I had to try something.

I do deals now. I don’t fight in court. The grist for my mill is no longer case law, though I still read quite a bit of it. I left the open case law problem, I should say the open case law crisis, to others. I winced when they cut deals with upstart usurpers, and when those upstarts inevitably sold to incumbents. I did not forgive, and I did not forget.

Now I’m a lawyer, and I advise a lot on open source. I didn’t know that was a thing lawyers could do. I didn’t know it when I went into law school, when I took my first job, or when I left that job to hang a shingle. But here I am, getting by, serving almost exclusively clients who identify with, and produce heaps of, open source software and infrastructure. I’m by no means a grand old man of open source law. But I’m in the game, and I’ve done the time—God, so much time—to make myself effective.

Most of all, I look up to two lawyers who came before, Heather Meeker and Lawrence Rosen. Look up to, not idolize. We’ve butted heads. We’ve disagreed. We’ve worked at cross purposes. But they wrote great books on open software licensing, and so far, I haven’t. A couple blogs and a few short guides don’t measure up.

I am a print fetishist, but I have plenty of books. Heather and Larry’s works stand out not because they’re words on bound paper, but because they very consciously lay stepping stones for others—and not just lawyers—to follow where they went, into the practice of open licensing. They couldn’t reduce everything they learned and thought to the printed page. Nobody can. But what they felt they could write, they wrote.

I walked the stepping stones Heather and Larry laid behind them, in addition to trudging through a lot of muddy water, of my own accord. I am doing what I can to lay stones behind me as I keep my head above water, reflecting the many changed circumstances since Heather and Larry made their ways. I do what I can to make open licensing approachable, or at least surmountable, by nonlawyers. If there is one unifying theme of all the opportunities that stood me up as an independent practitioner, it’s actually that work, not client service. One reinforces the other.

Kate mentioned Free Software Foundation Europe’s Legal Network mailing list. I was on that list. I was invited. Two colleagues vouched for me, in part, I think, with hope I’d stir things up, speaking as someone who established a practice without networking into the existing cabal of open source licensing people first. Stir things up I have, without apology. But I have mentioned to both of my references for some time now that I’ve stood close to quitting. I won’t sputter out all the reasons here. Suffice it to say Kate’s frank admission is just the last.

Open licensing does feel like a cabal, and not just a cabal of lawyers. That mailing list is its clearest manifestation. I was part of the list. I participated actively—too actively, for many subscribers’ tastes. But I never went to the conference, or to others dedicated to the field. I never wanted to. I couldn’t go that far.

Something told me tapping into that hivemind, making that “community” not just my intellectual space, but my social space, would sacrifice my ability to really surprise anyone, intellectually or in client work. If there is an orthodoxy of open licensing, that is where it lives. I didn’t get to do what I do full time, and pay rent, for channeling orthodoxy.

So I’m out. I unsubscribed, finally.

Not that I’m the first. Others have left the list, or been booted, and kept up with me just fine. Or better. There are lots of good people on that mailing list, but that list is just about the worst way I have to reach them, or for them to reach me.

We’ve seen this recently, as conversation about open source licensing, and in particular the Open Source Initiative’s thoroughly broken process of license review, spilled out onto Twitter. I don’t like Twitter. I’m trying to quit that, too. But a handful of open source licensing lawyers—including most of the independent practitioners I know—sent so many tweets, so deep and detailed, that bystanders repeatedly complained it was impossible for interested muggles to follow. It was. That’s what happens when things start closed, and wander suddenly into the open. No one can follow along.

As far as I know, all of those lawyers were at the same time subscribed to the Legal Network mailing list, and had been for a while. We had longer-established ways to talk about these things. But none of them were public, and all of them felt constrained, one way or another. Discussing on Twitter, such as it is, was a revelation and a relief. It was as if a great discursive pressure, trapped behind the constrictions of mailing lists like LN, often under Chatham House Rule or the like, burst forth like a geyser. We tweeted like we talk, when we’re able to talk. Except we did it in public.

I don’t know where we go from here. Discussion groups like the Legal Network stopped up, so we burst out onto Twitter. The Open Source Initiative’s license-review mailing list became a drive-by bully pulpit, so I sent a lot of e-mail and spun up a forum. I used to run a legal mailing list that anonymized all messages. Perhaps that could help the in-house lawyers that Kate mentions don’t feel free to speak on other lists. I dunno.

Probably, we just try all those things, and see what sticks.

I, for one, am not taking my questions or my answers back into the dark. They need to stand out in the open. Because I believe that in the end, whether I write my book or not, it can only pale in comparison to the welcoming, educating, and acculturating value of an open working dialog on open software licensing and where it’s heading. Reading books is part of how I learned, but that learning alone didn’t add me to the open licensing labor pool. Others who follow my path won’t do so by rote. I hope they have what it takes to challenge it, instead.

I’ve worked on tools for “open” lawyering for years. New interface improvements are helping more lawyers and firms adopt those tools. I’ve worked my influence, time and time again to welcome lawyers onto platforms like GitHub, to show them how effective and even exciting they can be for common work. Half the notifications I get these days are from fellow JDs.

I feel now is the time to say it straight and plain:

  1. Open software licensing ought to be open.

  2. There is no magic in any of this. Just a lot of people putting their minds and lives into it, which is as good as it gets.

  3. It’s up to us to decide whether the greatest bequest we can leave behind—not what we can teach, but the process of our own learning—will be a stepping stone for those who follow, or a ship sunk offshore, in deep water, never to be seen again.

If openness is not the choice we make, it will be the choice made for us. Open software has succeeded, quite despite itself, in sowing its failures and triumphs all the industry wide. Any prior assurance that those involved in resulting frictions would come “for the right reasons” or “from the same place” is long gone. Bottles of wine, personal connections, and intimately socialized theories of alternate legal reality do not scale up to all those using and making open software now. Neither do the available lawyers. So you don’t know who your next counterparty will be, what they’ll know, or what they’ll share.

So much the better.

Your thoughts and feedback are always welcome by e-mail.

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