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**Mikeal Rogers:** And I'm Mikeal Rogers. |
**Nadia Eghbal:** On today's show, Mikeal and I talk with Heather Meeker, intellectual property lawyer at O'Melveny & Myers. Heather spent over 20 years on legal matters related to open source, and has published several books, including Open Source For Business: A Practical Guide To Software Licensing. |
**Mikeal Rogers:** Our focus on today's episode with Heather is open source licensing. We talked about why open source licenses are historically significant, how much developers really need to know, and how much developers think they know about them. |
**Nadia Eghbal:** We also talk about mixing commercial and open source licenses, and how lawyers keep up with an ever-changing landscape. |
Heather, you started your career as a paralegal at a record label in Hollywood. How did you go from that to taking the leap into becoming a practicing lawyer? |
**Heather Meeker:** Well, I had a very zigzag course to my career - that's probably the nice way of putting it. There was a thing going around on Facebook a while ago about listing your first seven jobs, and when I did that I think I got up to the paralegal job, so... |
**Nadia Eghbal:** Oh, wow! Tell us about your first six. |
**Heather Meeker:** I've done a lot of different things. I was out of college for 12 years before I went to law school, and during that time I was a computer programmer, a professional musician, and eventually ended up working as a paralegal. I got into that because I was working as a musician and I desperately needed ... |
It was a long and zigzag course, but during that time I was interested in what we call content music, and also had worked as a programmer, so by the time I got to law school and this thing that they called - at least at that time - convergence of the content in technology industries was going on, so it was a very natur... |
**Nadia Eghbal:** Were you working on anything around intellectual property or the things you're doing now, while you were taking on all this lawyer work from previously departed lawyers? |
**Heather Meeker:** Actually, I was working on intellectual property but it wasn't software-related, it was music-related. So yes, I learned a lot about copyright when I was doing that, and then after I went to law school, I started applying it to technology. |
**Nadia Eghbal:** And where was open source when you started specializing a little bit more deeply? |
**Heather Meeker:** \[03:51\] Well, I first heard about it in around 1996. By that time, it had been going on for a while, but I would say it had not hit the business consciousness of the world. People describe it as a hobbyist movement before that point - I don't know if that's exactly accurate, but it wasn't somethin... |
I had started to take a look at free software, reading the GPL, trying to figure out what was going on there in around 1996, and I just found it incredibly interesting. I kind of pursued it as a matter of personal interest. My clients were asking about it, but it was mostly just something I found intellectually interes... |
**Mikeal Rogers:** You mentioned that you had a programming background before - is that one of the reasons why you took such an interest in it even before it was being demanded by your clients? |
**Heather Meeker:** Yeah, I suppose so. I mean, I have to say that my tech background is ancient, really. It's several generations back. It's like, every two years it's another generation back. But I was always interested in software, because I found software interesting from the work I'd done in it, and just kind of a... |
**Nadia Eghbal:** Were there any particular legal issues right around the time that you started diving in, that caught your attention or really rooted your experience? |
**Heather Meeker:** Well, I think everyone who gets fascinated by open source or free software probably starts by reading the general public license, and being interested in what it has to say. It's a very complex document, so it requires a lot of attention to try to figure out what you think it means. Also, there was ... |
**Mikeal Rogers:** That's really interesting. That's one of the earliest open source licenses, the GPL. How have things changed, and how has the open source landscape changed from then until now, and how have you kept up with all those shifts? |
**Heather Meeker:** \[07:49\] Open source licenses have gotten a lot more standardized over time, or at least people have fully embraced the benefits of having them be standardized. Today, there are still people writing open source licenses, but this notion of license proliferation is considered a definite negative in ... |
Most of them are shorter documents that don't have a lot of detail, so every time you write a new one, when you start on day one you don't have any history with the license to use to interpret it, and that's difficult. |
I should step back... For instance, GPL version two became widely accepted by industry, but a big part of that was that industry got comfortable with the community norms for how to comply with it. That is sort of outside the four corners of the license. Normally, when you're interpreting legal documents, you basically ... |
That's the long way of saying that today everybody understands the value of standardization in open source licensing, meaning standardization of the license terms in a way that was kind of a side benefit of open source. So if somebody comes to you and says, "I'm using this software in a tender Apache2 or a tender GPL2"... |
Over time, a lot of what has changed is that people have converged on a half a dozen licenses or so, almost to the exclusion of all else. There are still new licenses being written, but they tend to be at the margins. |
**Nadia Eghbal:** I hadn't really thought about that before... I guess proprietary licenses - everyone's drafting their own version, so it's almost like a meta benefit of open source itself as what it's done for licensing. |
**Heather Meeker:** It is, and when you hear people complain about license proliferation, I think it's very interesting. Because in proprietary licensing, there is nothing but license proliferation, \[laughter\] so it's a little hard for lawyers to hear complaints about license proliferation... It's like, "Yes, and...?... |
**Nadia Eghbal:** It's actually something that we talk about at GitHub where I'm at now... |
**Heather Meeker:** Yeah, it's hard for lawyers to get used to, but I would kind of turn it around and say that the standardization is actually a benefit, it's kind of an extra added bonus of open source licensing, and that's a great thing. |
**Nadia Eghbal:** \[11:55\] Then how much do we pair it down to... Like, do we really only need one type of license for each situation? Something we suggest is like Apache 2.0, GPL and MIT, but then we hear complaints from BSD saying "Why aren't we included in that list?" |
**Heather Meeker:** Yeah, I mean... If anyone can tell me the difference between BSD and MIT, I'd really like to hear it. There's really no difference between the two. They're obviously different documents, but substantively they're so close to identical that nobody really treats them any differently. Then I think what... |
**Nadia Eghbal:** Biased. \[laughter\] It sounds like licensing has changed a lot of times since you last went to law school, right? So for a space like open source, where everything is changing so quickly, where do you go to keep yourself fresh and learn about what's going on, and how do you continue to self-educate? |
**Heather Meeker:** Well, I always tell people that being an open source lawyer is kind of like being a tax lawyer, in the sense that you spend an incredible amount of your time keeping up on what the rules are and what's going on. I think compared to other legal practices, you have to spend more time doing that. There... |
For me, maybe 15 years ago I would read everything I could find about open source licensing; now it would be impossible, because there's so much out there. I've gotten more selective in what I am reading, just because I don't have the time to read everything anymore. There are a couple of discussion groups I'm on that ... |
I have maybe half a dozen people I'm looking for the stuff that they've written. Then the IFOSSLR, the law review that's done by the people who started the Legal Network and Free Software Foundation Europe - that's a great law review. If you are disposed to read something more like a law review article, that's a really... |
Honestly, there's been a fair amount written about open source licensing in traditional law reviews, and I usually don't find those terribly useful. I'm more interested in stuff that's very pinpointed, on a pinpoint issue, or something that is practice-related. And of course, anything that gets published by Free Softwa... |
**Mikeal Rogers:** \[15:50\] Are there any things that you just decided to opt out of staying on top of, because they just got to be too much? Like, "You know what, I'm not gonna keep following the Oracle/Google lawsuit..." Is there anything like that? |
**Heather Meeker:** Yeah, I had to follow that, but... |
**Nadia Eghbal:** Yeah, note for our listeners - you're involved in that lawsuit, right? |
**Heather Meeker:** Yeah... So for example, there's a discussion group to discuss new open source licenses, and I pay some attention to that. There's no way I could possibly read all of it, so I'm trying to figure out what am I gonna be reading and what am I not. I don't know, there's just a lot of stuff written out th... |
**Nadia Eghbal:** Do you think formal law education in law schools knows how to teach open source? |
**Heather Meeker:** I don't think they know how to teach law... \[laughter\] |
**Nadia Eghbal:** That's the bigger problem! |
**Heather Meeker:** I mean, that's the real problem. I could go on all day about that. Law schools teach people to be judges, they don't teach people to be lawyers. Or at least, I would say that's probably true of the top echelon of law schools. Ironically, it's probably true that the lower tier of law school you go to... |
There are certainly classes on open source in a lot of law schools these days; there will be a seminar or something to that effect, but all law school classes tend to be pretty theoretical. That is the problem with legal education, or an issue, I guess. There are probably people who would disagree with me and say it's ... |
It's a great idea to learn the basics of open source, and one of the reasons I say that is that open source licensing tends to be... I've called it "Bizarro-World IP", and that's because it tends to be very opposite from everything you learn about IP, and rightfully so. As I said, it's kind of a mechanism to get people... |
So it's great to get exposed to it, but realistically people who are studying law really should not be expecting to learn very much about what's actually useful in counseling clients. That's just the nature of a law school. |
**Nadia Eghbal:** And you published a book, Open Source For Business, last year. Why did you decide to publish that book? |
**Heather Meeker:** You know, I am the kind of person who works out what I'm thinking by writing. If I come upon an idea that I wanna focus on, the way I work through it in my mind is by writing something about it. What I did over the course of the years as I was learning about free software and counseling clients, I w... |
\[20:13\] Then, in about 2006-2007, I started feeling like it would be useful to collect all that stuff into a book. So I took all the stuff I had written, I added a few more things and put it together. Of course, the stitching together of it took hundreds of hours, \[laughs\] but that is the nature of writing books...... |
So I did that book, it came out in 2008, and then it really needed an update and my publisher was not inclined to do an update, because unsurprisingly, my sales were less than that of Harry Potter books. \[laughter\] |
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