There are, of course, numerous challenges for tech transfer offices. Within the university, most scientists are “in it for the science” and not for the money, according to Dr. Montisano. University researchers have the tendency to publish first, forcing his office to chase after them to try to prevent the loss of patent rights (publishing first loses most international rights immediately, though U.S. law allows for a year’s grace). Outside the university, industry values focus on profit first–even if many researchers have been taught to value the science by universities first.

Diagram from James A. Severson, Ph.D., of Veratect Corporation, Kirkland, WA

Industry prefers to restrict use of its technologies to those explicitly licensed—and such licensees generally must pay for the privilege of their use. Methods and materials are kept close, as trade secrets, unless licensed out for approved use. Competitors must be kept from access to preserve corporate profits. Universities, on the other hand, have generally taken a much broader approach to technology use and sharing. Researchers in universities must “publish or perish,” and getting describing methods and approaches garners a researcher the most benefit when readership is broad. One-upping academic competitors is still a key goal, but the method is through demonstration and publishing successes, not through profit-making and market dominance.

The Bayh-Dole Act attempted to bridge the divide, and technology transfer offices are the means of its implementation. Prior to Bayh-Dole, “legislators were concerned that for a variety of reasons, the government”–formerly the federal government owned the research it funded–“had proved ineffective as a shepherd of the inventions created with federal research dollars” (see Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks). By many measures, the results have been phenomenal: at the end of fiscal year 2009, UCSD alone had more than 400 licenses active around the world, with a steady increase since 2000. Also in 2009, UCSD’s technology transfer office distributed more than fifteen million dollars to inventors ($9 million), joint titleholders ($432 thousand) research labs and departments ($2.5 million), and the UC general fund ($2.5 million).

All the money suggests some obvious problems created by the “intrusion” of a neoliberal, market-focused approach into the “ivory tower” university environment (assuming such pure extremes ever existed). For a cash-strapped state government like California’s, why not emphasize this market-connected activity and turn universities into self-supporting institutions? Such an approach risks compromising the university focus of basic research and–perhaps even more importantly–ignores the less commodifiable teaching and research done at such institutions, especially in the humanities. Even within the sciences, forcing research to fit into license agreements and patent arrangements may impede the flow of data, slow down innovation by restricting information sharing, and, ultimately, force university researchers away from basic sciences that form the core of future applications.

Related articles

• Technology Transfer and the Third Way (kfwhite.wordpress.com)
• Columbia University’s Tech Transfer Guru, Orin Herskowitz, on Turning IT, Biotech, and Cleantech Ideas Into Businesses (xconomy.com)

IBM’s Lotus Symphony is a free-of-charge alternative to the ubiquitous Microsoft Office suite, based on Sun’s open source OpenOffice software. It purports to remain compatible with Microsoft’s “.doc” format (and newer incarnations), while removing licensing costs (but, not of course, support costs, since people still need training, technical support still costs money, etc.). Now they’ve decided to walk the walk:

360.000 IBM workers have been told to stop using Microsoft Office and switch to the Open Office-based software Symphony.

via IBM Throws Out Microsoft Office — Linux Magazine Online .

In legal circles, standards change slowly — some courts still require WordPerfect documents, years after Microsoft Word eclipsed the former dominant word processor in other fields. Theoretically, of course, Symphony (or OpenOffice) still supports older formats — but I’m sure I’m not the only one to have suffered minor or major incompatibilities — even between different versions of Microsoft Word itself!

So could you make the switch? Would the cost savings be worth the potential hassles?

I mostly have switched away from Word. Unfortunately, I’ve had to keep one licensed copy of Word around to deal with strange issues that may crop up. Usually, these involve collaborative editing projects (“track changes”), or tightly formatted documents, like resumes (which just don’t perfectly translate).

But I have not switched to OpenOffice, nor to Lotus Symphony. I increasingly believe OpenOffice and its kin are courting irrelevancy now that Google Docs and other cloud based office suites are gaining ground, and my tools reflect this.

Is the future in the cloud, not the open-source desktop? My work habits say, “Yes.” (But not without a nagging worry about confidentiality in the cloud.)

So where is the future of legal computing going?

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• Interoperability eludes Office and OpenOfffice (theregister.co.uk)
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Randy Picker responds by saying:

We should review how the public domain works. The public domain is sold every day. Every time you buy a copy of Hamlet you are paying for a public domain work. I do H.G. Wells’s The War of the Worlds in my copyright class on this starting with Project Gutenberg — free, of course — and then heading to Barnes & Noble and Amazon, where the prices range from $2.50 to $13.95 see slides 3 to 13. That is precisely the nature of the public domain: anyone can use it for whatever they want, including selling it. The AP is fully within its rights to sell public domain content just as Amazon does every day.

via The University of Chicago Law School Faculty Blog: The Associated Press: Selling the Public Domain?

To restate: there is absolutely nothing legally wrong with the AP licensing or selling public-domain content. To paraphrase concepts from the open source world, public-domain content is free (as in speech, “libre”) not free as in beer.

As Picker puts it, “Public domain content is outside the copyright system. Again that is its nature.”

You have no right to access of public-domain materials (perhaps unfortunately). You have no right to get them without paying. Instead, such materials are free for anyone to use in any way they wish. The AP can sell the material. You can sell the content. Anyone can do with it what they wish.

(A side note: a license by the AP to such content may be invalid, in the sense that once you have it, you can do with it as you wish — although potentially you may still breach a contract you have with the licensor. Picker, for example, writes, “Ordinary rules regarding contracts and licenses should apply to circumstances under which someone is given access to public domain content.” I can envision counterarguments. In other words: it’s complicated. Thus the existence of lawyers.)

Bizarre? Unfair? Strange? Perhaps. But consider that the protections of copyright are a modern addition to the world. Pre-18th century (to grossly simplify things), if you sold your manuscript, you sold the “copyright” as well. All intellectual creations were, in a sense, in the public domain (although the concept didn’t quite exist — without modern copyright, there is no concept of “public domain” either — there is simply one state, not too).

Modern copyright changed this, and arguably encouraged creation — but it also locks up works in various ways as well. Thus the need for a balance, I believe, between the protections of intellectual property (which is not quite like ordinary property, which is why you only “infringe” IP) and the dizzying freedoms of the public domain.

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• Associated Press will sell you a license to quote the public domain (boingboing.net)
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The  (IFOSS L. Rev.) is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes.

via the International Free and Open Source Software Law Review.

Cearta.ie adds some more details:

It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

via cearta.ie » New Open Source Law Journal.

So what’s in the first edition? Here’s the (very interesting) table of contents:

Foreword and statement of purpose: an introduction to IFOSS L. Rev., Iain G Mitchell QC

Articles

• The Fiduciary Licence Agreement: Appointing legal guardians for Free Software Projects, Ywein Van den Brande
• Collaborative Approach: Peer-to-Patent and the Open Source Movement, Christopher Wong, Jason Kreps
• Bad Facts Make Good Law: The Jacobsen Case and Open Source, Lawrence Rosen
• Introducing The Risk Grid, Shane Martin Coughlan, Andrew Katz

Case Law Reports

• Jacobsen v Katzer and Kamind Associates – an English legal perspective, Mark Henley

Book reviews

• ‘Open Source Technology and Policy’ by Fadi P. Deek and James A.M. McHugh, Andrew Katz

Tech Watch

• Tech Watch, Adriaan de Groot

Platform

• Collaboration Among Counsel Celebrating the Formation of a Community of Lawyers for the Advancement of Understanding of Free and Open Source Licensing and Business Models, Karen Faulds Copenhaver

This looks like a journal to watch going forward.

Related articles

• International Free and Open Source Software Law Review Launched (computerworlduk.com)
• New Free/Open Source Software law journal launches (boingboing.net)

If WordPress were a country, our Bill of Rights would be the GPL because it protects our core freedoms. We’ve always done our best to keep WordPress.org clean and only promote things that are completely compatible and legal with WordPress’s license. There have been some questions in the community about whether the GPL applies to themes like we’ve always assumed. To help clarify this point, I reached out to the Software Freedom Law Center, the world’s preeminent experts on the GPL, which spent time with WordPress’s code, community, and provided us with an official legal opinion. One sentence summary: PHP in WordPress themes must be GPL, artwork and CSS may be but are not required.

via WordPress › Blog » Themes are GPL, too.

Lloyd writes at A Fool’s Wisdom that:

Talking about licensing really is the suck. Matt’s article became necessary lately as some commercial theme developers have been very aggressive to WordPress community members, who have shared theme code as allowed by WordPress’s viral GPL v2 license.

It frustrates me when I read commercial theme developers complaining about people “stealing” their themes after the thousands of hours they have worked. They make no mention of the hundreds of thousands of hours others have worked on WordPress (counting on the  GPL protecting their freedoms ).

via Commercial WordPress Theme’s PHP Code is GPL 2 Too.

The main point of the legal opinion is that any WordPress theme is so entwined with the main WordPress code as to make it a “derivative work,” and thus subject to WordPress’ copyright and licensing (which is the GPL).

There has been some disagreement in the community about this legal opinion — based on the “viral” nature of the GPL — that WordPress themes also need to be GPL. The main argument against seems to be based on the idea that a WordPress theme could function independently of WordPress. If this were possible, then it would not be an independent work at all.

James Vasile, who wrote the opinion, noted that there might be a situation like this, but that it would be unlikely:

[I]magine using WordPress to serve a single static page. You would use a WordPress theme that does not contain any php but is simply HTML. The HTML would look a lot like data that just passes through the PHP process to the client and does not include any blog entries or sidebar functionality.

It’s a trivial case that turns WordPress into a very complicated version of cat, but that theme would probably be a separate work.

via comments to CMS Themes and the GPL.

I must say that I find the legal opinion to be strong and defensible, and the alternative opinion — that themes are not derivative works — much less convincing based on current copyright law. Actually, as much as I appreciate the GPL, I do not think this is necessarily correct public policy, even if it works in this specific GPL case (right result, perhaps, wrong policy basis). After all, if WordPress carried a non-GPL, more commercial license, then themes could be banned or controlled in very negative ways — a result I would not appreciate.

To restate again, I think themes would legally be too tied to WordPress and are indeed bound to the GPL — I don’t like the law that makes it so — but I do generally like the GPL (which undermines traditional licensing, but is only powerful because of public-policy problems with the law).

Finally, Mark Ghosh, in an article provocatively titled “Licensing is the vehicle, our users are the environment, writes:

In all of our vacillations, are we getting away from our core philosophies? The freedoms that the GPL and WordPress have offered to the folks who choose to make money from WordPress, are also designed to help another, larger group of people. The people who use the software.

via weblogtools collection.

Indeed.

Sean, a Zotero co-director, announced yesterday that the lawsuit filed by Thomson Reuters (makers of EndNote) was dismissed yesterday:

I’m delighted to announce that this morning the Fairfax Circuit Court dismissed the lawsuit filed against Zotero by Thomson Reuters. The lawsuit had claimed that the Center for History and New Media “reverse-engineered” Thomson Reuters’s EndNote software to provide data interoperability between Zotero and EndNote.

via Thomson Reuters Lawsuit Dismissed at The Quintessence of Ham.

While some are billing this as a victory for open-source software — which, in some sense at least, it is, since it avoids a further attack on this front against Zotero development — the case was never quite about copyright or open source. In its essense, this case instead focused on a contract claim that George Mason University violated the EndNote contract by developing an “import” feature for Zotero. The GMU site license for EndNote (which I understand GMU did not renew) forbid reverse engineering, and Thomson Reuters believed that this was the method used by Zotero’s developers to create the EndNote import function.

Details are still sketchy, but Sean promises to have court transcripts up next week.

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Mike Masnick responds to the complaint of some people that providing “free” information, tools, and so on (open source, for example) is not a sustainable business model going forward because “everything is free” cannot work:

No one is suggesting any business model where “everything is free.” Everyone’s been focusing on ways to take some stuff as being free and use it to make other stuff more valuable and worth paying for. And it’s working. So why is Baptiste pretending that people are pushing “everything is free”? It’s because the new business models upset the apple cart for an organization like CISAC, which wants to create a big collective licensing deal (collective licensing is easy, compared to actually giving people a reason to buy).

His real fear isn’t that “everything is free,” because that’s not happening at all. His real fear is that the new business models don’t require groups like CISAC.

via Dear Free Haters: No One Has Said ‘Everything’ Is Free | Techdirt.

This is a typical sort of argument I hear from entrenched business interests who have a model of operation that has worked (music, Hollywood, newspapers) appears threatened. Instead of adapting, these interests attempt to legislate greater legal protection (extending copyright as long as possible, for example) and set up “straw-man” arguments like “everything is free can’t work” to justify these protectionist approaches (generally termed “rent seeking” in economics).

I am sympathetic to some level of protection through copyright for example, but not to protecting a business model simply because it worked before. Innovation requires adapting, and as we’ve seen with GM and Chrysler, a changing world will eventually catch up to your business, and the result isn’t pretty.

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Consider this idea: without copyright protection for digital media, we would have even more Digital Rights Management. Why? Because without it, recouping up-front investment without restricting distribution would be difficult or impossible. Since I often see a confluence of beliefs around those who hate DRM and those who hate copyright laws (I myself fall into this belief system in certain circumstances), I think this is an important point to remember.

I do think that a reasonable argument can be made that in many situations, especially in regards to mechanical devices that take time and resources to reverse engineer and reproduce, that “first-mover” returns (as just one example) are sufficient to recoup initial costs (especially if the business is handled in a savvy way) and that therefore patent protection is not necessary to encourage innovation.

But what about when reproduction costs approach zero, as with software or electronic books, but development costs are potentially high? (Despite open-source success stories, software development costs money, and authors of novels spend real time — and money — writing).

Alternative business models might help if we lacked copyright protection (subscriptions for the latest software patches, selling software support services, or other creative business approaches), but I suspect at least some businesses would decide that DRM would be a good model.

After all, without legal protections, the only way to limit copying would be through private measures. DRM is one such private method. This would lead, I suspect, lead to an “arms race” between hackers/crackers and publishers, but the pay off for publishers in gaining additional monopoly time through technical measures would be large enough for be worthwhile. The user market might push against too much restriction, but again, without any legal prohibitions against copying, publishers would be incentivized to use at least some DRM-based restrictions. The pay off in protection would simply be too large, and business might well decide that customer unhappiness could be managed through various other mechanisms (like reduced prices or marketing), rather than “give in” to those who would copy without paying.

Of course, in reality it is not necessarily a black vs. white kind of proposition. We do not need to elect either full copyright or no copyright. We could choose a more limited form of copyright than we have today.

In truth, I believe limiting current copyright is the right approach to the situation. Unfortunately, it requires complex thinking and analysis, and all the factors are hard to quantify. (I suppose this is another example of why lawyers almost always say “it depends” when asked their opinion.)

This kind of analysis also gives us “fair use,” a doctrine sadly neglected (in my opinion), and one that could use some more clarity and strength.

But for now, just remember you need to consider all the ramifications if you rail against copyright, just as those who favor stronger copyright need to consider the negative impacts of that approach. Remember that a likely outcome of eliminating legal protections would be an increase in private enforcement alternatives like DRM, and pontificate accordingly.

Related articles

• Consumers and Copyright: Thoughts about reforming the Digital Millennium Copyright Act (DMCA) (inpropriapersona.com)
• Electronic texts and rent-seeking publishers (inpropriapersona.com)
• Copyright’s Paradox: a book by Neil Netanel (inpropriapersona.com)
• Fair use of copyrighted material benefits US economy: report (inpropriapersona.com)

• You Think U.S. Copyright Law is Bad? (plagiarismtoday.com)
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• Piracy Has Become Mainstream, Studies Show (torrentfreak.com)
• 5 Stupid Copyright Questions That Aren’t (plagiarismtoday.com)
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Instead of using the noble scroll, Origen decided to take advantage of the page structure of the humble codex. Dividing each of two facing pages into three columns each, he began placing six texts side by side to compare them word for word. This monumental undertaking ultimately required many codices and is known as the Hexapla.

Origen also introduced a form of critical reading that was rather uncommon in the 3^rd century. Until then, writing was little more than a way to externalize memory. Reading was really a way to help reciting. The reader read aloud and, so to speak, was inhabited by the text projected by his own voice. Critical reading, by contrast, seeks to scrutinize the text and engineers a psychological space, a sense of distance, where the reader has an opportunity to exert his critical faculties.

The description above reminds me of the critical tie that exists between paratext, text and readers, something I’ve been fascinated about for years (and a connection I would love to carry into an analysis of legal writings and texts).

He continues into the modern world of academic publishing:

This very first phase in the transition to the digital world reminds us that in any communication system, it is important to look at who can produce documents, who can preserve them, who can organize them in order to facilitate retrieval, who has access, and what can be done with the accessed document. A number of rules long organized around copyright laws were suddenly superseded by licensing rules that are contractual in nature. Also, 10 years ago, the art of contracting licences was quite esoteric among librarians. Meanwhile, we academics were going on with our usual business, largely impervious to the sea change that was taking place under our noses. As authors, academics act largely like peacocks and want to be featured in the “best” journals, whatever the cost to the library; as readers, academics want access to everything and if it is not available, they view it either as the fault of the librarians or as the responsibility of the university administrators. Again, as readers, academics simply do not see publishers and pricing issues. The same is almost as true of academics as authors: how many know the publisher of a coveted journal title?

And a problem that those in libraries — especially anyone working on a budget in a library — knows all too well:

Very few firms dominate academic publishing, and they extract profits that can reach and even exceed 40 per cent before taxes. Let us remember that we are talking about research articles made possible by large amounts of public money supporting research and universities. They are given away by their authors when they sign their rights away. These articles are peer reviewed for free by other researchers. The result is then sold to libraries, often supported by public money.

Then he moves on to open access, a topic dear to my heart, and describes some of the recent moves towards open access (or, in terms of the NIH, what I prefer to call “public access,” since much of the freedom associated with open access is removed, leaving mostly — but arguably most critically and importantly — the freedom to read a work without paying an exorbitant fee):

For open access, the most essential step emerged when funding agencies began to realize that it was to everybody’s benefit, including their own, to have open access to the literature they funded. The Wellcome trust in the UK, was a leader in this regard, but some American and European institutions followed quickly. The National Institutes of Health (NIH) in the United States became a battle ground between publishers and open access supporters. Ultimately, open access won despite the deep pockets and lobbying efforts of the publishers. In December 2007, the large omnibus law signed by President Bush contained a provision stating that all research papers financed by NIH had to be deposited in NIH’s repository at most 12 months after publication. Other funding institutes began to follow suit, notably Canadian Institutes of Health Research in Canada.

(For more, see also the Taking the Long View: Guedon and Changing Technologies at Slaw.ca.)

Image by krisnelson via Flickr

The Northwestern Journal of Technology and Intellectual Property has accepted a paper I co-authored with Professor Robin Feldman of UC Hastings School of Law. The name of the piece is Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks. It should appear in full published form before the end of 2008.

The piece deals with so-called “patent thickets” and the extent such bottlenecks may be impacting research, especially in the field of biotechnology. Whether they really exist or not may be immaterial, as several approaches have nevertheless appeared to deal with their potential to restrict research. The piece looks calls three current approaches: “open source,” “open access,” and “open transfer,” and looks at the ways in which these approaches are used to deal with potential “thickets,” and, indirectly, to thus see their possible scope.

Much of this is based on Professor Feldman’s extensive intellectual property and patent work, some of which, at least, is openly available through SSRN.

UPDATE: Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks is now available on SSRN. The article is also available on the Northwestern Journal of Technology and Intellectual Property.