I’m hoping in the next few months (possibly weeks) to practise what I preach: I’m working with a client, Emerge Open, to release a suite of legal documents under a creative commons licence, provisionally BY-SA (attribution-share alike, which means that anyone can take the documents and use them for any purpose, provided that if they republish, they have to credit us as the authors, and also release any amendments they make under the same liberal licence).
What are the documents?
It is a suite of technology procurement documents, including systems integration, open-source friendly software licensing, software and web development, support and maintenance and will expand to cover associated services such as training and consultancy and service level arrangements. They will be released under English law.
Why haven’t I done this before?
There are a number of reasons, some obvious, but some more subtle. See below.
Lawyers rarely know who owns the copyright in their precedent documents.
Stephe Walli, in his blog post Do lawyers ignore copyright law? makes the point that lawyers habitually reuse existing texts, clipping bits from contracts that they come across which they feel work, particularly well, without much regard for who owns the copyright. I avoid this, myself (if I come across a particularly neat way of dealing with a particular contractual problem, I will often reverse engineer the language, reducing it to the neat idea - which is not protectable in copyright - and then re-expressing it in my own language). However, we have as a firm developed a large precedent bank of re-usable documents, and whilst a large proportion of the text will have been written by our lawyers, there will also be portions which have come from third party precedent banks, of which there are a number, and for which we have bought a licence.
Hence, we can use our precedents in the usual course of our business, as this is within the scope of the licence granted by the commercial precedent provider, but is unlikely that this licence would extend to us being able to allow the precedents to be generally available for re-use under a liberal Creative Commons licence.
Clearly, if we are going to license our documents under a Creative Commons licence, then we must either own the copyright in them, or you we must have them available to us under a compatible licence - one which allows us to license them out under that Creative Commons licence.
Therefore, the precedents we are releasing in this way have been drafted solely by me (and, to some extent my colleagues), without incorporation of any other text, and we can be comfortable that we own the copyright in them, and can consequently release them any way we see fit. Without this, we would be unable to release them freely.
We need to release them through a client.
There are two reasons for this. The first is that drafting documents, especially from scratch, is an expensive, lengthy process. A client like Emerge Open willing to sponsor the process is extremely welcome. However, the second reason is more subtle. If we release the documents directly to the public, there is a danger that we might be deemed to be initiating a client/solicitor relationship with anyone who downloads the documents, even if they are not paying for them. Even though the Creative Commons licences contain disclaimers of liability, there are strict limits on the extent to which solicitors are allowed to limit their liability to clients, so the disclaimer may be seen as a way of trying to circumvent the rules, and cause us problems with our regulator and our insurers.
If, on the other hand, we draft the documents under a retainer with Emerge Open, and Emerge Open choose to release them under a Creative Commons licence (after having assurance from us that we can license them to do so), then Emerge Open, which is not subject to regulatory restrictions, as it is not a law firm, can freely release the documents under a Creative Commons licence with our blessing (and the disclaimers and exclusions of liability in the licences are much more likely to work).
Allowing free use of documents is like giving away the crown jewels
This objection is frequently raised by other lawyers, and merits some analysis. An environment in which an open source software business thrives is where the software provides important commodity or infrastructure functionality, where there is an opportunity to add value by providing software around the services, where the software is not in itself, a key differentiator of the business selling services around it. Apache is a classic example: a web server is important infrastructure, there is plenty of opportunity to add value by providing additional services, but the surrounding services will provide differentiation to any business providing web-based services, not the fact that they are using Apache itself.
Another way to view this open source business model is that creates an environment in which ad-hoc collaborative R&D can occur on the underlying software.
The rationale applies to law firms, and the precedents they use, in the same way that it applies to businesses developing and providing services around open source software. Just one example: I would be very surprised if anyone chose Herbert Smith on the basis that it had a better precedent bank than a competitor.
The advantages of open source software also apply to the development of legal precedent banks. There are a number of reasons why open source precedent banks haven’ t arisen to date, which I will explore in a subsequent article, but my hunch is that the time has come for this business model in the legal world.
The Creative Commons suite of licences is the most widely used and understood for open documentation. However, there are a number of options in the Creative Commons canon, many of which are not technically open licences at all.
Although I am generally not a supporter of the authoritarian nature of the copyleft/sharealike approach, it can be a good way to launch a pathfinder project, in that it does (or should) cause users of the documents to re-examine their existing business models. An academic style non-sharealike licence would enable other users of the documents to take their contents with no obvious incentive to change their business model. Using a sharealike licence, will, I hope focus their minds on the necessity to allow the recipient to re-use the material (and republish it, if they desire).
There are some problems here. The main ones which need considering are
- legal documents are generally only transmitted by private distribution to other parties and not to the public. This makes it less easy to enforce the licence, and also makes it less clear as to when the sharealike provisions apply.
- There may be undesirable interactions between the sharealike provisions and the requirements of commercial confidentiality.
- Law firms will be reluctant to credit the precedents they use to other law firms.
I believe these are surmountable. For example, I don’t think the confidentiality issue is a big one anyway, as creative commons permits private distribution (as does the GPL). However, it does suggest that there is some sense in drafting the documentation so that there is a core set of terms which are covered by a sharealike licence, and then a schedule with appropriate and variable commercial terms, a template of which can be released under a non-sharealike licence, allowing that to remain separate from the main agreement. Software engineers will see the parallels with linking, using shims to avoid the GPL and so-on.
On reason, possibly unexpected, for the popularity of certain open source and free software licences is that they are well-understood and commonly used. Someone using GPL code in a project may not like the GPL, but they know, or should know, how it works, and, except in limited cases, they will not be able to negotiate its terms, so the business decision is a much simpler process (accept the code under the GPL, cognisant of the effect that will have on our business model, or reject the code) than entering into negotiations with the provider of the code. The procurement process becomes much simpler and quicker, and much less expensive. This is very attractive to the CFO (if not to the counsel whose workload is decreased).
In an ideal world the suite of documents itself would become a de-facto standard for ICT services procurement in a similar way. The parallel is not perfect: the fact that we are releasing under an open licence means that the agreements can, by definition, be modified. There is an argument for saying that that a no-derivatives licence would be better, or a standards-type licence. It’s too early to make plans for this at the moment, but one option may be to produce a definitive version of the agreements from time to time, with the proviso that only those agreements can be described using a specific name, in the same way that I am free to modify the Apache licence, but I can no longer call it an Apache licence if so modified.
Is anyone doing this already?
Take a look at www.docracy.com
Once the master suite is complete, Emerge Open plans to publish it on its web site for commentary, criticism, use and development. We’re in discussion with government and private sector companies, and a number of lawyers in the twitterverse have shown interest. Watch this space.