Speakers at IFCLA on Public Procurement, Hybrid Open Source, FRAND Licensing and Web 2.0 Licensing

This is the continuation of my previous post on the bi-annual IFCLA (International Federation of Computer Law Association) 2006 conference in Amsterdam. This posts relates Friday’s sessions on Public Procurement from Pekka Takki of Fennica in Helsinki and Steven De Schrijver of Van Bael & Bellis in Brussels; on Hybrid Open Source from Ian Kyer of Fasken Martineau DuMoulin in Toronto; on FRAND Licensing from Maurits Dolmans of Cleary Gottlieb in Brussels and on Web 2.0 Licensing from Prof. Michael D. Scott of Southwestern Law School in Los Angeles. Again, there where many more excellent speakers in addition to those mentioned here, and I refer you to the conference website for the full program.

Day Two, Friday Morning: Pekka Takki and Steven De Schrijver on Public Procurement

As the participants trickled in on Friday morning, Pekka Takki of the Finnish law firm Fennica introduced the speakers of the first panel of the day, on public procurement in IT, and on the use of IT in public procurement. Steven De Schrijver of Van Bael & Bellis in Brussels provided a quick run down of the new EU Directives on public procurement (Directive 2004/17/EC and Directive 2004/18/EC) before turning his attention on what he expects from one of the major new features: the competitive dialogue. (See for a good overview of all new features of the Directives this overview from the Commission’s Euro Information Center in Ireland.)

In short, the competitive dialogue allows tendering parties to use the technical (and contracting?) know-how of the submitting parties, by soliciting their input before the final tender is made. To quote the Center mentioned above:

The competitive dialogue can be used in complex contracts where technical solutions are difficult to define or where development of the best solution is wanted. To obtain the know-how and technical solutions of enterprises, they can now be involved at an early stage before the drawing up of the final tender document.

In my opinion, the question remains whether the more advanced vendor is able to prime the tendering party for its solution. (This would then not be a large improvement from today’s situation, where I understand that RfPs, or Requests for Proposal, are occasionally written not on the basis of a problem or need of the tendering party, but with a very specific solution in mind, because is is the known entity.)

Day Two, Friday Morning: Ian Kyer on Hybrid Open Source

Ian Kyer of Fasken Martineau in Toronto, replacing his colleague John P. Beardwood, talked next about hybrid open source. Like it says, hybrid software refers to software that uses some proprietary code and some open source code.

Ian’s talk included two take-away points. One, be sure to aggregate components, and not combine them. This should allow you to demonstrate later on what exactly is and is not covered by a particular license. The main reason for this is that not being able to quickly show what is the level of ownership and control over pieces of your software might negatively affect a potential deal, in time, value or even likelihood of happening. (Granted, this would be a little different for 100% open source companies, but even there control over your source may be key to your value.) Saying that “you don’t use open source” is probably not true in most cases, and if it is, you want to be able to prove it.

Potentially hesitant buyers are also the main reason for Ian’s second point: when developing an hybrid source product, you should be careful about using code that is covered by “viral” (or copyleft) GPL-type licenses, and look at available alternatives. On the last topic, the viral trait of the GPL license and other licenses that contain similar clauses, I do not claim to have the definite answer, but the unconfirmed (as in, unconfirmed in a sufficiently large body of case law) nature of this feature might cause you to err on the safe side. If the buyer of your company or product-line starts to wonder what exactly the influence of using a copyleft-license is you might have lost some valuable time, and possibly value, right there.

(By the way, some of these issues where also raised in a good IT Conversations installment I heard the other day: “Open Source Code, Managing the Opportunity.”)

Day Two, Friday Morning: Maurits Dolmans on FRAND Licensing

Next up was Maurits Dolmans, on FRAND (fair, reasonable and non-discriminatory) licensing. In short, FRAND licensing is relevant in the context of SSO’s (Standard Setting Organizations), whereby participants to the organization pool together IP (mostly patents, hence “patent pools”) and cross-license it to all members. Problems arise when participants do not declare patents necessary (“essential”) for the standard, only to charge (exorbitantly) high license fees (that is, not FRAND) once the standard is adopted. Maurits highlighted, amongst other things, the possibility of ex-ante negotiations to prevent such behavior. (The evening before, Maurits, whom I used to work with when at Cleary Gottlieb in Brussels, talked very enthusiastically about a case he is in involved in these days, and that has FRAND aspects.)

After this Maurits moved into a higher gear, and I have to admit that I stopped taking notes. (You can read more about his take on FRAND in a 2002 testimony before the U.S. Doj/FTC here [pdf], and in a 2002 paper “Standards for Standards” [pdf].)

Day Two, Friday Afternoon: Professor Michael D. Scott on Web 2.0 Licensing

At the end of the conference, Professor Michael D. Scott of Southwestern Law School gave a heads-up on licensing issues that we are likely to see around the evolution of the Internet (Web 2.0! by another name). Professor Scott mentioned U.S. click-wrap cases and pointed out that we will have to deal again with the issues that surrounded those in connection with new web-services.

To give an example that I came up with (and I am not sure that I am really on to something): open API’s cannot discriminate between types of use, or users for that matter. Something to explore in a future post?

Book

You can order the 160-page book from Elsevier Juridisch with papers from the conference for only EUR 19 here.

‡‡
[This is a post from Technology Law Culture: http://tlc.oosterbaan.net//. Olivier Oosterbaan, ICT and media lawyer in Rotterdam, the Netherlands, maintains this blog.]