• Is Open Source Incompatible with Intellectual Property?
• Licensing Lessons: The BlackBerry and eBay Cases

Mr. Lehman was U.S. Assistant Secretary of Commerce and Commissioner of Patents & Trademarks from 1993 to 1999. He is the founder and Chairman of the International Intellectual Property Institute and Senior Counsel at Akin Gump.

Abstract

Proponents of open source software and other business models that seek to provide public domain access to creative works are often critical of strong intellectual property protection. In particular, this criticism extends to legislation recognizing the right of copyright owners to utilize digital rights management (“DRM”) technologies, judicial interpretations of copyright law that restrict file sharing, liability for contributory infringement of copyright, and patentability of computer software and business methods. This keynote presentation will discuss the relationship between intellectual property protection and the open source business model and will argue that intellectual property rights and open source can coexist. Indeed, copyright protection is the very basis of the licensing protocols that support the open source model. The primary issue is the extent to which the author of a creative work should be compelled to commit his or her work to the public domain. The tensions between the open source model and patent protection for computer software and business methods may be less reconcilable. However, this presentation will argue that creators should have rights to determine the business model to be utilized in the distribution, licensing and use of their works.

Coexistence and Compatibility

The title of my speech is not “Can open source and intellectual property co-exist?”; rather, it asks, “Are they compatible?” “Coexistence” and “compatibility” are quite different terms and concepts. The GNU General Public License, Version 2, Section 7, states: “it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.” Thus the GPL itself recognizes that other “systems” can and will be used to distribute software and recognizes the freedom of an author to do so. This is an acknowledgement that the business model represented in the GPL can coexist with other business models. When an author agrees to the terms of the GPL, he or she has made a decision not to use another system or business model. And the mechanism that prevents him or her and downstream users from placing restrictions on the use of his or her work is intellectual property, in the form of copyright – or “copyleft” as Richard Stallman calls it. Stallman’s insistence on coining a new term – copyleft – illustrates that the ideology of intellectual property is not compatible with the ideology of open source – at least the ideology of the founders of the open source movement. In fact, nearly everything written about or published by the Free Software Foundation suggests a deep hostility to the ideology of intellectual property rights. Copyright’s only worthy purpose according to this ideology is to ensure that GPL-licensed software and derivative works never leave the public domain.

The anti-DRM provisions in draft Version 3 of the GPL make it clear that the open source ideology is hostile to any business model that attempts to keep a copyrighted work proprietary – not just software, but other traditionally copyrighted content as well, including movies and music. Earlier this year GPLv3 coauthor Eben Moglen called DRM technology “fundamentally incompatible” with the principles of the Free Software Foundation. Draft Version 3 prohibits digital restrictions on any copyrighted material unless users can control them.

Who Is the Decider?

Our U.S. President George W. Bush recently coined a new term when asked by a reporter whether he planned to ask for the resignation of his Defense Secretary, Donald H. Rumsfeld. He replied, “I am the decider,” and stated that he had “decided” to retain the services of Mr. Rumsfeld.

Regarding open source, we might ask who the “decider” is. Is it Richard Stallman, Eben Moglen, or the Free Software Foundation? If it is, it seems clear that the ideology – if not the letter – of open source is incompatible with intellectual property.

However, I suspect that many everyday users of open source software do not share this ideological hostility to intellectual property. Indeed, many commercial users of open source software also market bundles that may include both open source and proprietary software.

In preparing for this talk, I came across a web log debate about whether TiVo, which uses Linux but collects information on consumers’ actions, could comply with GPLv3’s anti-DRM provisions. One of the bloggers argued that TiVo could comply because “TiVo is not a derivative work of Linux in the legal sense – [but] is simply a Linux application that happens to ship with a Linux distribution bundled as a complete package.” Recently I attended a legal conference in Mexico City where several speakers described techniques for combining open source and proprietary software into such bundles without violating the GPL. While I am sure that those for whom open source is an ideology object to such techniques, it seems likely to me that in the future more and more developers will avail themselves of a mixture of licensing protocols in creating new products and formulating new business models. Certainly, if the press is to be believed, even Microsoft is availing itself of open source software in some of its projects in development.

If these profit-seeking software developers are the deciders of whether open source and intellectual property are incompatible, I think the answer would be quite different from those who consider open source an ideology rather than a business model. They would respond that IP and open source are compatible.

Open Source and Copyright

Copyright is the most widely used form of intellectual property. After I got the invitation to speak at this conference, I started to give a lot of thought to this apparent contradiction that the very legal mechanism used to keep open source software from being hijacked by proprietary developers is intellectual property, even though IP is contrary to the ideology of open source. I asked myself why shouldn’t we make life simpler by going back to copyright law as we knew it in the United States before 1976? Prior to that time if an author published his or her work without first registering it with the Library of Congress, it went into the public domain.

The only reason the law was changed in 1976 was so that the United States would be able to adhere to the Berne Convention, which had long been the primary copyright treaty governing relationships among European states. The Berne Convention specifically prohibits member states from requiring formalities such as registration as a condition of copyright protection. However, this prohibits the mechanism we had long used in the United States to give an author the ability to give up copyright at the moment of publication. It occurred to me that maybe we should rethink this provision of the Berne Convention and permit countries to have the kind of choice we had pre-1976 in the United States.

I quickly realized that while this certainly would make it easier to place contemporary works of art, music and literature into the Creative Commons, it would not meet the strict requirements of those for whom open source software is an ideology. That is because one of their primary objectives is that all derivative works and downstream uses of an open source program should be open source as well. As I noted earlier, this need for a legal mechanism to keep open source open requires the use of copyright so that all downstream licensees can be compelled to make any derivative work open source as well. So not only is copyright compatible with open source, it is a core element in enforcing the ideology of open source. It makes no difference that some choose to call it “copyleft.”

Open Source and Patents

In the abstract of my speech I stated that patents may be less compatible with open source than copyrights. While copyright law is the mechanism for enforcing open source licenses, there is no role for patents in the open source protocol. Organizations such as the Free Software Foundation passionately oppose software patents. Ideological opposition to software patents surfaced virulently during the recent debate in the European Parliament on the Directive on Computer-Related Inventions. The objective of the directive simply was to harmonize the law of E.U. member states to conform to the decisions of the European Patent Office, which grants patents on computer-related inventions involving software as long as the software has a “technical effect.”

Originally proposed by the French government, it was expected that the directive would be uncontroversial. However, a firestorm of populist opposition developed. And much of this opposition came from the free software and open source movements. Nongovernmental organizations such as the U.S.-based Consumer Project on Technology (CP Tech) became deeply involved in opposing the directive as well.

The backlash was so strong that the directive’s proponents declared victory when the Parliament decided to do nothing rather than to approve a version that would have been more restrictive than the existing rules of the EPO.

There is no question that the notion of patenting software is completely inconsistent with the ideology of the founders of the open source movement. But I believe that their fear of software patents goes further than an ideological distaste for patents. The reason is that the scope of patent protection is much broader than that of copyright protection. Patents grant to the patent holder exclusive rights to prevent others from using the very ideas embodied in the patented invention. Copyright, by contrast, only prevents others from copying an author’s work or using it without his or her permission in a number of very limited ways, such as public performance and display or – under the 1996 WIPO Copyright Treaty – making it available to the public through a mechanism such as the Internet. If someone independently writes code that does the same thing as another software program, for the most part he or she is free independently to control the copyright in the new work and license it under an open source protocol such as the GPL.

The much stronger rights of patent owners mean that it might be possible to fence off large areas of software development so that it would be impossible to develop open source programs in those spaces without licenses from patent holders. This concern is acknowledged in Section 7 of the GPL, which prohibits taking a patent license that restricts the making and distributing by the licensee of the patented code. This provision of the GPL prevents the very strong patent right from being used to control use of licensed code downstream by other open source developers. However, other open source licenses, such as the Mozilla Public License (MPL), the Common Public License (CPL), the Apache License and the General Public License (GPL), do not contain such limitations. Thus software licensed under those open source protocols could be used to create a new work that would contain patent restrictions on downstream usage. This would be incompatible with the ideology of the Free Software Foundation. However, it is not necessarily hostile to those who want to use open source as a business model for the development of new products. Using licenses other than the GPL that do not contain GPL’s restrictions would permit open source developers – particularly commercial developers – the freedom to operate on an open source platform, but to add patented material to the mix as long as they had obtained the consent of the patent owner.

The fact of the matter is that – in spite of all of the noise generated by anti-patent activists – it is extremely unlikely that in the United States the subject matter of patents will be restricted to exclude patents on software. It must be remembered that the extension of patents to software in the United States was the result of a U.S. Supreme Court decision more than 20 years ago, a decision that now constitutes an extremely strong precedent in our common-law system. To overturn it at this point would require intervention by the U.S. Congress through legislation. As someone with over 30 years of experience in dealing with the Congress, I can assure you that this is not going to happen. Open source developers will have no choice then but to deal with the increasing presence of patents covering software innovations.

While the situation in Europe is different from that in the United States, the European Patent Office has made it clear in the wake of the failed effort to enact a directive that it will continue to abide by the decision of its Expanded Board of Appeals to grant patents on computer-related inventions embodied in software. So, it appears unlikely that software patents will disappear in Europe anytime soon either.

The Ideology of Open Source and the Ideology of Intellectual Property

On the surface it certainly appears that the ideologies lying behind the two business models for developing software are in conflict. However, I would like to suggest that this may not necessarily be the case. I believe that leaders of the free software and open source movements are largely unfamiliar with the ideology of intellectual property, and that this accounts for much of their hostility.

The founders of the open source movement were, for the most part, computer programmers functioning in the context of academia, rather than business. Their training, skills, and experience were and are in the field of science and technology, generally not in law or economics. Intellectual property law as we know it today was the creation more than two centuries ago of political philosophers, who were often lawyers. While on the surface it would appear that the ideologies of these two groups are very different, I believe that they have much in common.

What the intellectual property ideology and the open source ideology have in common is a deep respect for the freedom of the individual creator.

In the case of open source, this takes the form of opposition to restrictions on the right of programmers to access and use the works of others, or, in other words, to restrict his or her freedom. This is essentially a libertarian motivation. However, intellectual property law also has its origins in the notion of freedom of the individual. This is particularly true in the case of copyright law in Europe. Copyright, or droit d’auteur, as we know it in continental Europe, had its origins in the French Revolution. It must be remembered that prior to that time all scientific and artistic creation took place under a system of patronage from the nobility of Europe. A great composer, for example, had no means of making a living except by holding a post at the court of a wealthy monarch or nobleman. All of his creations were, in effect, owned by his patron. With the revolution in France, this system was overturned and authors themselves were given direct control over the use and exploitation of their works. This included the right to exploit a work economically as well as “moral rights,” such as the right to prevent others from altering or changing the character of the work as envisioned by the original creator. Indeed, droit d’auteur is directly translated into English as “right of the author.”

In the United States the intellectual property system was the creation of one of our most prominent founders, Thomas Jefferson. He was truly a Renaissance man with a deep passion for the arts and sciences. He was a writer and inventor himself, and identified deeply with the creative community of his time. He was the author of the provisions of the U.S. Constitution that mandated the Congress to “grant exclusive rights to authors and inventors,” in their writings and discoveries. He saw a larger social purpose in this, which was to “promote progress in science and the useful arts.” His reaction was not unlike that of his counterparts in France. He was rebelling against a system in which the word “patent” meant an exclusive grant of property or a monopoly to favorites of the British monarch. Or, in the case of copyright, the grant of printing monopolies that were considered to serve the interests – often involving censorship – of the Crown.

By awarding patents and copyrights to inventors and authors, the individual was rewarded and encouraged to add to the storehouse of knowledge that would be available to all of society.

Can the Ideologies Be Reconciled?

I would guess that most individuals, entrepreneurs and companies working in the business of software development don’t really think much or care much about the ideology of copyright and patents or open source. Usually, their motivation is pretty selfish. It is to do whatever they want to without hindrance from others, and in the majority of cases to make money from what they do. The business model they select often determines what they think about open source and intellectual property. If they have a business model based on providing custom-made packages and supporting services to clients, they probably dislike the constraints of IP-protected software. If they are looking to make it into the big time with a killer application, they may be strongly in favor of intellectual property protection.

I have long been considered a proponent of strong intellectual property rights. I do not consider myself to be anti-open source. I believe that the two ideologies are reconcilable because they are based on individual choice. Those who wish to follow an open source model for whatever reason, because of altruism and a dislike for profit, or because they have a business model that works better with open source, have no argument from me. I encourage them to follow that path. Likewise, those who want to follow a proprietary model based on strict IP protection are fine with me. The main issue to me is the freedom of the individual to choose.

But without enforceable intellectual property laws, there would be no choice. We would return to the time of the 18th century when the only viable business model for a creator would be to rely on the patronage of others – whether that be in the form of a sinecure in a university, contracting out to clients for services with your software being thrown in for free, or relying on the patronage of advertisers. For the proprietary model to remain an option, we need intellectual property laws that prevent others – without permission – from overturning your choice by simply taking your work product. To me it is as simple as that.

(Originally presented as a speech at the LinuxWorld Summit, Milan, Italy, May 16, 2006. Reprinted with permission.)

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Introduction

The ability to prevent another from making use of your intellectual property (whether it be a patent, trademark, copyright or trade secret) is an essential and critical right. The primary leverage that an intellectual property owner has to prevent others from infringing its rights is the ability to sue and to potentially recover monetary damages or equitable relief (usually in the form of an injunction). In the case of licensor and licensee, it is often the licensee that has the primary interest commercially in enforcing the intellectual property right. For example, if someone else is using another’s intellectual property without having to pay a licensing fee or royalty, that entity may be making more profit by the ability to have a higher margin. That entity may also be taking away sales from the licensee. In addition, if the license is exclusive in some aspect (territorially, for example), it is the licensee who is most harmed by an infringing use in the territory.

It should come as no surprise that it is normally the licensee that wants to litigate and seek protection of the intellectual property rights it has licensed. However, the licensor, which as the owner of the right is usually the entity which must initiate the litigation, may resist taking such action due to either the cost of the prospective litigation in relation to the possible damages or the minimal impact the infringement has on the commercial market involved. In the United States, the exclusive licensee may be the entity to bring the suit if the court finds that the parties intended, and the license expressly grants, such a right. If the court finds that the license implies such a grant by giving substantially all rights to the exclusive licensee, it can also decide that a licensee is entitled to bring suit.

From a licensing perspective, two relatively recent cases in the United States involving the “licensing” of intellectual property rights provide some valuable lessons on how to handle offers to license from the perspective of both the licensor and the licensee. In each of these two cases, a large damage award was made to a small company, which had initially offered a license, where the high profile and larger defendant had a very successful consumer product. The “classic” game in litigation involving a well-off defendant and a plaintiff with arguably fewer resources is to try to prolong the proceeding as long as possible. In addition, terms such as “stonewalling” and “scorched earth” have earned a prominent place in the litigation vocabulary, the theory being that a defendant can cause the plaintiff to spend all its money in order to obtain a settlement on terms more favorable to the defendant than could otherwise be achieved on a level playing field. This strategy failed miserably in the BlackBerry case discussed herein. Not only did the defendant not get more favorable terms, there was the very real possibility of having the company’s most successful product shut down if a license agreement could not be reached between the parties. When a business’s primary product is threatened by an injunction, the pressure to settle the matter is intensified (as shown by the $612 million paid by RIM (Research in Motion) to settle the case).

The BlackBerry Case

It would be hard to believe that anyone who uses a cell phone or e-mail has not heard of the “BlackBerry” case, NTP, Inc. v. RIM. The BlackBerry case reflects the situation where an intellectual-property holding company (while “patent troll” has been used liberally to describe NTP, there are several reasons that it is arguably not a patent troll) is able to use an injunction threat as settlement for a license.

This astounding case began in January 2000 when RIM ignored NTP’s first “form” letter offering a license for several of its patents. In fact, NTP had sent numerous letters (perhaps as many as 40) to various companies offering to license the patents owned by the company. In regard to protecting trademark and copyright rights, the usual letter sent by the intellectual property owner to the alleged infringer is known as a “cease and desist” letter. In such a letter, the owner of the intellectual property right is demanding that the infringer stop all further use of the intellectual property at issue. However, it would not be unusual for a trademark or copyright owner to offer a license as well, depending upon the circumstances and whether or not the owner is using or licensing the property, so parallels to the BlackBerry case thus come into play in evaluating other intellectual property rights as well.

As to patent rights, it would be normal for the first letter to be phrased in terms of taking a “license” to use the invention or technology at issue rather than an outright demand to stop. This is often done so the alleged infringer cannot go to court (in a jurisdiction arguably more favorable to it) seeking a declaratory judgment of noninfringement. An offer to license is often seen as lacking the “threat” necessary to bring a declaratory judgment action. However, if the BlackBerry case shows nothing else, it shows that any offer to “license” needs to be taken seriously enough to evaluate whether or not it is threat to the business, any of its products or any of its technology that it may license (or already has licensed) to others. One of the complicating factors for RIM was that, at least as early as August 2004, RIM had introduced an extensive licensing program that allowed other manufacturers to incorporate BlackBerry technology and software applications. RIM no doubt had not only its own substantial stake in the matter, but a substantial stake as a licensor as well. However, RIM was not the only entity to “ignore” the NTP letter. While, not surprisingly, others have since taken licenses from NTP, it appears that no one that was offered a license by NTP back in 2000 accepted the initial offer.

The initial “license” letter from the intellectual property owner may often be, as in the case of NTP, be a form letter and not contain much information. In fact, RIM argued that the letter was inadequate notice of NTP’s rights, as no particular licensing fee was set forth in the letter. Needless to say, this argument presumably did not carry much weight with the jury.

Probably one of the most critical facts was that NTP apparently never offered to “fully” license RIM; that is, it did not offer a comprehensive license for products already sold and a license based on an ongoing royalty for future products that would use the intellectual property. This position (or variations of it) is very common in the licensing of all intellectual property rights, not just patents, the theory being that the more products you sell using the intellectual property right, the more you generally are obligated to pay. However, according to RIM, the fact that NTP would not offer a fully-paid license (a license fee which would cover all past and all future sales in one amount, not necessarily one payment) left it “no option” but to continue to litigate. Only time will tell whether or not requiring a fully-paid license was a good position to take in this matter.

In response to this argument, and other arguments as to why RIM was willful in its infringement, the trial court noted that the amount of time dedicated to the investigation of the matter left “considerable doubt as to whether an investigation actually occurred.” The issue of RIM’s investigation of NTP’s claims was critical to the court’s finding of willful infringement. In fact, RIM could not even produce its copy of the initial license letter from NTP. Further, the copies of the NTP patents RIM claimed to have obtained (and reviewed) contained no markings or notations (a fact that could not be explained even by the witnesses who took the stand to testify in the case). Finally, and perhaps of most concern, was the fact that RIM did not seek outside legal counsel to review and investigate the matter, nor did it seek any independent technical review of the patents in issue and the technology used by RIM, which was accused of infringing these rights.

Ironically, it was most likely the press generated by RIM that it was suing a competitor for what it claimed was an infringement of its rights in the BlackBerry product that led NTP to first contact, and later sue, RIM. After getting no satisfactory response from RIM, and no longer willing to be ignored, NTP sued RIM in U.S. district court in Virginia. Of critical importance to the development of this case was the fact that this particular court has a “rocket docket.” A defendant cannot use a long delay to try to get an advantage by prolonging the matter in such a system. The RIM case was off to a very swift start that clearly worked to NTP’s advantage and to RIM’s detriment.

A jury verdict in the BlackBerry case was obtained one year later (November 2002) and resulted in a finding of infringement, $54 million in damages and an injunction against further infringement of the patent claims at issue. However, the judge allowed a stay of the injunction pending a court appeal. Lawyers for NTP had argued that RIM should be prohibited from any and all sale of BlackBerry products unless RIM takes a license on NTP’s intellectual property rights. RIM had sought a stay in the matter as the patents at issue were in the process of being re-examined. This was a wait that the district court indicated was not acceptable. Once the U.S. Supreme Court turned down RIM’s case, despite (or maybe because of) tremendous political pressure to intervene, RIM finally saw the proverbial light and settled the case. Accordingly, while the patents at issue in the case could still be rejected by the U.S. Patent and Trademark Office, it will not provide much help to RIM at this point.

Even though RIM now faces the fact that it licensed intellectual property that may be invalidated (and therefore not infringed by RIM’s BlackBerry), the litigation and probable injunction were seriously affecting revenue and customers, and the license now removes the cloud that threatened the company. RIM did get a license that protected the entire BlackBerry system for a fixed amount (no ongoing license fees). Of note is that the licensing resolution of the case covered not only RIM but also all the wireless carriers and channel partners who sell BlackBerry products. It also covered the other manufacturers who have licensed software from BlackBerry for use in their own devices. The press that this case has received will arguably have an impact on how future “license” letters are viewed by parties on each side of the issue.

The eBay Case

The second case dates back to 2001 and involves a small plaintiff, MercExchange, against online auction giant eBay. After the initial licensing negotiations with eBay (and a related company, Half.com) failed to reach a resolution, MercExchange brought suit in federal court. This case, while having elements in common with the BlackBerry case, has had a very different course from the BlackBerry case at certain critical points. However, this case, like the BlackBerry case, has also attracted significant interest and attention among those who believe it has become too easy for so-called “trolls” to hold businesses hostage through intellectual property suits. As such, this case may have much more impact than the BlackBerry case on the way intellectual property cases are actually litigated in the next few years. Several of the amicus briefs in the case (from the likes of Microsoft and Cisco) supported eBay’s position that an injunction should not be automatic, and echoed the concern that a position of entitlement to an injunction allows intellectual property owners who do not provide a service or produce a product to threaten companies that are predominantly “noninfringing.”

This case really started in 2003 when a jury sided with MercExchange, and found that its two e-commerce patents had been infringed. MercExchange received an award of $35 million. However, the district court judge declined to issue a permanent injunction. The injunction would have forced eBay (and Half.com) to stop using its “Buy it Now” feature. This feature allows a seller to set a fixed price for an item and allows a buyer to complete the transaction instantly by accepting the fixed price rather than waiting until the ending time of the auction set by the seller.

The judge, applying the traditional four-part test to determine whether an injunction should be entered, found that the test was not met. This ruling may turn out to have significance in how such cases are tried. MercExchange had argued that “irreparable harm” would occur and that it would be “deprived of its ability to…have the exclusive right to license its patents and technology to others on the most beneficial terms available.” However, substantial evidence had been introduced during trial that MercExchange exists merely to license its patents to others. Further, MercExchange had made statements at trial that it sought appropriate damages from eBay, not to enjoin it. Finally, the lower court noted that MercExchange had not sought a preliminary injunction in the matter. All of this evidence was sufficient to rebut the presumption of irreparable harm if an injunction was not granted in favor of MercExchange.

On appeal, the decision on the injunction was reversed by the U.S. Court of Appeals for the Federal Circuit under the “general rule that courts will issue permanent injunctions against patent infringements absent exceptional circumstances.” The appellate court stated that it is customary to expect an injunction “once infringement and validity [of the intellectual property right] has been adjudged.” However, it stayed this ruling pending a review by the U.S. Supreme Court. Unlike in the RIM case, the Supreme Court took the eBay case, and subsequently ruled in eBay’s favor.

According to some intellectual property owners, the threat of an injunction is the only way of forcing companies (the intellectual property “pirates”) into fully considering and accounting for their actions. However, making injunctions more difficult to receive (as monetary damages could arguably be paid by most large defendants, such as eBay, RIM, Microsoft and Cisco) would increase the pressure on intellectual property holders to license rather than litigate. The eBay case also provides insight into how properly to prepare the case so an injunction is still a viable option to the plaintiff.

Conclusion

Businesses should view licensing as a way to spend less time in court (and less money on litigation lawyers) and more time and money in creating and promoting new technology and products. In order to do this, businesses must be diligent in investigating any intellectual property rights they are thinking of a licensing or have been offered a license to.

In evaluating a license, it is also critical to address adequately the intellectual property issues at issue in order to avoid the potential damage of an injunction. While the eBay case may mean that permanent injunctions are harder for plaintiffs to get, as they are no longer “automatic,” they are still obtainable and remain an appropriate threat. Accordingly, one should always take infringement and “license” letters seriously. If nothing else, the RIM case clearly establishes the necessity of conducting a careful analysis, and that you should document your thoroughness. The RIM case also supports the position that it is very important to get competent, and perhaps independent, advice in the matter. Don’t let the only people who review and analyze an infringement matter be in-house personnel. While this means hiring outside counsel, and perhaps outside technology experts, to review the matter and/or provide a written opinion, the cost of such steps will be offset by the substantial proof they provide that you took the matter seriously. Taking these steps will hopefully allow you to determine the difference between a serious case, a nuisance case, and a specious case and to respond accordingly.

(Originally published by Knobbe Martens Olson & Bear LLP. Reprinted with permission. The Cyberspace Law Committee sponsored a CLE program at the Spring 2006 Business Law Section Meeting addressing open source issues in mergers and acquisitions transactions. Program materials for “Another Technology Wrinkle in M&A Practice: Open Source and Free Software” are available for free download to Business Law Section members at http://www.abanet.org/buslaw/apps/updatedsearch/materials.html. (Tip: Search for Cyberspace Committee, Spring 2006.).)