 Okay, so if you produce it, say yes, I'll practice because it's a privileged document. Work product privilege or probably yes. Work product of a consultant is protected if it's in anticipation of litigating. The best site for that is that I was able to find just the rules of civil procedure about what. Right, so you're investigating a violation of your license. I think that that's close enough to anticipation of litigation. You're right that you need to be thinking down the road. There might be a lawsuit and, you know, wow, we've come across this violation. We might want to file a suit. Let's investigate then, you know, the work product. Well, right. Well, it may not be a work product issue. It may be some other issue. But here, this is directed at work product. Okay, so team two. Yeah. All right, team two. You have the board. You're admitted in State A and provide pro bono services to an open source project whose developers are based in State A. You meet with the steering committee at a conference in State B and provide legal advice. I'll practice. Essentially, the right answer, rule 5.5C provides that you can provide temporary legal services outside of the jurisdiction if it arises in your jurisdiction practice. The developers are all in State A. You're in State A. They're like, hey, let's go meet at a coffee shop in State B or whatever. You meet with them there and you provide legal service. That's definitely arising outside of your, in your, you know, State A practice and your advice. It may not be very realistic in an open source project. You have the board. Team three. Sorry. I did this. I'm sorry. Team three. You have the board. You're in-house counsel at Black Shoe Incorporated, tasked with investigating potential GPL violation. You tasked a Black Shoe developer with the investigation. After Black Shoe filed suit, you produced her investigation-related documents. I'll practice. Producing the document was the document privileged or not. In other words, you made a call about whether it was privileged. You said it's not privileged. You produced it. Were you right or wrong? Let's say you're, let's say somebody else in Black Shoe Incorporated. I, I, I, I love lawyers. This is fantastic. It's like you're not in-house. You're not in-house. I mean, if you've retained outside counsel for the purpose of performing some kind of investigation about a potential violation, I think that's farther down the road to, you know, you know, you're, you're seeking legal advice about a violation. And here, I mean, it's a similar situation, but with an in-house counsel, the line is, you know, typically, you know, blurred a little bit more. So, so I, yeah. So, I, I, I actually, you know, I come down here with a, with a probably, you know, the, the federal civil procedure also, you know, there's a specific, you know, in-house documents, you know, for purposes of, of informing the litigation. So, you know, I think it's a similar analysis, so when we performed before about, about work product, although, you know, it's quite different to it. You can waive your own privilege, right? Yes, of course. Yes. And that, and that is a good point. Maybe we should award points over there for great, great discussion around this, around this. It's the corporate, I think what Louis was saying, he's making, he's the in-house lawyer for the corporation and is waiving it on behalf of the corporate, I think. Yes. Yeah, of course. Okay, let's see. That was Team 1, so Team 1 has the board. Project Awesome launches a crowdfunding campaign to directly pay your fees. The money from the campaign is direct, deposited directly into your account. It's paid directly to you by check and you deposit it into your, into your account. The one, no, no, it's, it's your personal account. Yes. To directly pay your fees. We, we had this, this exact question. So, people say yes, no practice. I think we said no. Because the question, and the question is, you know, is it payment, I think the question is, is this payment for, you know, fees that are going to be in the future, fees that have already been incurred, I think, is the issue with a trust account or not? You should be thinking from third party non-client or work for a client. Is that really that message? Not narrow question. Yes. But if you wanted to bring in facts about, like, what account it is, or whether or not the fees have already been incurred. So, if it's like, you know, you haven't done any work for them and you're like, give me a million dollars and, you know, they buy a house with it. Yeah, exactly. And you buy a house with it and you don't know what's going on. It's a little different than the situation where, you know, you've incurred, you know, $50,000 worth of fees and, and a crowdfunding campaign has been launched to, you know, pay your, pay your fees. So, these are the Rule 1.8 S sets out when you want to, want to do that. So, we're going to award, we're not going to take away points right now. We're going to award no points for focusing on a separate issue. This is a head fake question. Okay. Who had the board before with a team? One. One. Team one. Two sides of a fork project and either of them clients of yours dispute rights to the project name. You accept their request to help them resolve the dispute. Malpractice. No, it's not malpractice. Yes, you can do it. Rule 2.4, if the two, you know, 2.4 says basically you can act as a mediator, which is what everybody resolved to. But if they're unrepresenting you to explain to them that you're not their attorney, the situation arises. Well, there can be agreements, agreement in the mediation, you know, and that's a contractual thing not supported by a court order. But that's insipid. But, you know, typically, or in my experience in litigation, when you have these type of agreements, you'll typically say like, you need to notify the other party and the other party can, you know, go and try to squash it and that kind of thing else on that. I'm going to award points to Team 3, which is the back team. Team 3 for... Okay, so Team 3 has the board. Two daily doubles in this game. Maybe next year we'll throw in a daily double. Okay. The Free Patchy Software Foundation invites you to participate in a committee to draft Free Patchy v.3, which will consider changes to the patent license that could benefit your client who contributes many projects under the Free Patchy v.2, which is a license in this Free Patchy v.3 and Free Patchy v.2 are licenses. You agree to participate? Is this malpractice? Contrary views? Who is in the Software Foundation? Well, the question doesn't say you're representing their interest. It just says that the changes might benefit your client. Oh, so this is actually explicitly permitted by the rule. It permits a sort of participation in law reform activities. I think that this falls into the area of kind of legal reform. You think about, you know, if you harken back to the UCC days, you know, there were lawyers all working together to write the UCC back in the whatever 20s. I think that the interesting question there is really is law reform activities in the way that's contemplated by that. We're talking about drafting a private, you know, what traditional lawyers would analyze as a private legal agreement. But I mean, in open source free software, these licenses pretty much function as a sort of quasi-regulatory legislation that then has to get adopted by legislatures. I'm not sure about that. As long as, I mean, you're disclosing that, you know, you've been asked, it's kind of like the purpose of the rule is to make it so that, you know, according to the cause, the purpose of the rule is so that, you know, lawyers can have free discourse about, you know, what the law or the rights and responsibilities ought to be in a certain arena. And you shouldn't be hindered by the fact that, you know, reforming the law, reforming the activities that industry standards would be, you know, beneficial to your clients. You shouldn't still be able to participate. But you shouldn't be able to go in and, you know, expose that, you know, if you're advocating for dreams like, you know, this will material impact. Okay. All right, so I think, was that the team one answer that? Correctly, we kind of went around. Yes, the team one has the board. Our in-house counsel to accompany running an open source project with a contributor license agreement requirement. You answer some questions on IRC from a potential contributor about interpretation of the contributor license agreement. To your knowledge, the contributor has no lawyer. Raise your hand, answer the question, and say what you're assuming. Say assuming, go ahead. Yeah, probably not. You know, you must make sure that we're representing the company behind the project and not the developer. You know, the way that I like to think about this is, you know, if that person, the person is unrepresented, right? So you need to tell them, you know, I'm a lawyer. I'm representing the other side. You need to have a conversation with them about, you know, what's going on. And if they were represented, you'd say to the other lawyer, look, you know, the way I see the agreement is X, Y, and Z. Just because they're not represented doesn't mean that you can't, you know, have a frank conversation with them about the rights and responsibilities that, you know, you intend from the contributor license agreement. You just need to be a little bit more careful because, you know, you're an attorney and you're not representing them. You don't want there to be a misconception that you are, because you are our representing them. Okay, so that goes to Team 3. Okay, Team 3 has the board. You throw a client advice memorandum up on your website at a non-index, non-linked to URL, and send the client the link instead of emailing them directly. Malpractice, we said it's definite yes, definite yes. Okay, all right, yeah. I mean, let's say that you've taken measures, proactive measures to get make it so it wasn't, I think we're all, I think we've danced around this long enough. The answer is all of your instincts are correct. The question is, have you been, it depends. And the question is, have you been reasonable or not in your use of electronic means to protect privilege? Yeah, well, I think that they started, and you jumped it, 250, 250? Okay, okay. Richard's the final arbiter of all things. Richard? He's splitting. Yeah, but I think with that, I think there's been a, my touch was sort of maybe a bad idea. Yeah, I definitely agree. Yeah, I mean, I would try to make it so your communications with your clients are secure and not discoverable by someone going to your website and typing in random characters. Whoa, that's interesting. Okay. So, well, did we split on that? Okay, so why don't we do a score check and whoever has less can choose in that. Okay, so team two. Okay, a large group of developers are statistically working on Project Awesome. The two main developers ask and you agree to file a trademark, Awesome. A third main developer instructs you to abandon the mark and you refuse. If you have questions, you can answer the question and say what you're assuming. I have a limited amount of space here. This slide, so I can't give it. Yeah, go ahead. I just mean, well, I could have said a group of developers working as an unincorporated association but that's a little more boring. Right. Right. So, let's hear it, Pam. Yeah, I mean, yeah, so there's a lot of, I mean, anarchistically, it's a very, you know, is there some kind of like, you know, general product project guidelines? I mean, all these are important questions and I think we've hit all the different kind of assumptions that we could make about this. I mean, so, you know, I think the real answer is, you know, who's the client? It depends. You know, it's permissible to represent an unincorporated association. Perhaps that's kind of where this question was driving at. I think that Karen raised some really important points about, you know, how do you make sure when you're, if some developers say like, hey, we're this project, you know, how do you make sure that they really are and they really have the rights to that trademark as Pam said. There is somebody who owns that mark. That mark is being used in commerce by something. What is that thing? What is its structure? Who makes the decisions for it? And figuring that out is an important and difficult task. Probably don't. So, to go into Karen's point, you may want to have the idea for the project to kind of figure out that governance question first and that will then sort of shape who the client is. Presentations you need to make when you file it. I think, yeah, so many both. Yeah, so another concern is the duty to investigate, you know, what the actual ownership is before you scorekeeper. Which is the point. And Team 3 has been growing massively well. Team, because being in the back, you learn that your company is using complicated and valuable source code written by a friend that is licensed under the GPL. Your company is not complying with the license. You tell your friend. You'd be amazed at how hard it is to rearrange these slides. So no exception applies. So, yes, everybody didn't think it was right. This was a clear cut one. Who did we hear first, Richard? I'm going to reward raising the hand in Screaming Know versus just sitting in the front in Screaming Know. Team 1 gets the point, so you have the board. Maybe we should go for a score so we know where we stand with... Team 1 at 1,100. Team 2 has 350. Team 3 has... All right, so wait. Team 1, you have the board, I think. You advise Unicorn, a former client, regarding administering Project Awesome, a free software project. Mr. Contana seeks and you provide advice on how to contribute to the project. Malpractice. Raise your hand. Yes, Pam, I don't think you... As long as there's no... It's good practice to disclose it, but I don't know that it would be a per se violation not to, if you didn't think in your judgment that it would affect your judgment. Maybe not very legal advice. How do you contribute? Yeah, like, I mean, it's still legal advice, but it's legal advice that there's unlikely to be, like, a complicated strategy behind on behalf of the project, so... Where your advice would draw up on your prior experience and knowledge of the client or the past client strategy? So, I mean, for example, I mean, if you represent a particular... If you've represented somebody in 500 real estate transactions, right? I mean, just to kind of take this to kind of a more general, you know, lawyer land. You represent the same client. They just bought land 500 times, and they have a playbook that they use in their negotiation. And all of a sudden, you know, you have a following up with that lawyer, and all of a sudden you represent someone on the other side of that transaction. If you have, like, a detailed knowledge of the playbook that that corporation or that person uses in when they're trying to purchase property, and you're using it to your new client's advantage, and that playbook is confidential or privileged or a strategy or issues as noted in the comments. Okay. What is the board? That was 400. They provide pro bono services to an open source project whose developers live across the world. No developer is based in state A. You can raise your hand and answer with caveats and assumptions. It's really hard to write a question that all lawyers will accept and say, yes, this set of facts is right on, and I have no other caveats. I agree with everything that there is it's probably not permitted under the rules as they stand right now. There's, you know, there, there, it's an antiquated system that we have where, you know, there's these state bars and this really is a federal question, but the rule is very clear. Like, you can practice in, like, other states if there's no nexus to your state. There's something in the comments I think about facts, fact patterns where where the lawyer's expertise lawyers actually need to consult if they have this reputation and expertise in an area of law that is like sort of passed by the federal area of law if it transends any particular state law. I don't know how realistic it's going to be for a project to consult on an open source life issue that is going to be purely federal copyright and sort of not draw upon state law issues. I think that's a conservative answer that's definitely proud of it. A conservative answer is it depends. But, yeah. Sorry, go ahead. I think that if the answer is no, it's going to be because of the point that the PAM makes that, let's say that's kind of a trademark registration of that other hypothetical I mean that's your lawyer who has expertise in that particular area of law. I think this is something that in our world seems kind of strange but it's just maybe it's something that should be reformed for questions of federal law generally but there is nothing in the comments about saying well, if you're advising about patent law or advising about copyright, like matters of pure patent or pure copyright law that there's an exception for you it's not there in the comments it's not there in the rules. This is the model rules may vary by state. The ethics rules sort of reflect the protections of that. I think no points and we're going to back to team 3. Your client is the target of GPL Informant brought by Mrs. Softy. You email Softy asking her about an issue of GPL interpretation. I'll practice. Okay, if she's over that then yes, let's see where we, yes. Okay, that was a I got in my face situation where I should have said in the question that meme3 wins again. Cursal enforcement and non-profit that handles GPL for Linux kernel developers, Pro Bono invites you to join its board. You accept even though you have a client who ships proprietary kernel modules let's assume that Linux kernel enforcement views proprietary kernel modules as infringing the GPL and your client doesn't provide complete and corresponding source code for those kernel modules. It's worthy of a bar answer. Very concise, that's correct. Rule 6.3 actually explicitly well, maybe I would have deducted one point for not citing the rule specifically but serving on the board of a non-profit program does not make it your client but you can't participate in decision that would carry to concurrent conflict of interest with your client. With a free and open source software legal issue you have no experience but take the case. Well, it would be unless you do exactly what everybody said which was, you know, you need this skill and oh, I'm sorry there's an exception which is you can then associate or study or gain knowledge in other ways to become confident even if you have no idea what the heck your client's talking about when they walk in the door. I'm going to link issue, I'm sorry but it was not. So I'll get us there, hold on. Client retains you to audit their code base to ensure there are no license violations. You hire a software developer to help you understand how the client's code base works. You later turn over the developer's notes in response to a subpoena of practice. Those notes need to be turned over. The documents are actually likely to turn to client privilege because if you're an attorney you don't understand the technical details of what your client is doing. And you hire somebody to help you gain that understanding. There is precedent admittedly in the Second Circuit. There's precedent in the Second Circuit that says look, if that's just to advise the lawyer so they understand what the facts are in the case so that they can then provide their advice that is attorney client privilege. It's information given for the purpose of providing legal. Right, exactly. That's a good way of thinking about it. No one would claim that a translator, if your client doesn't speak English, they could then subpoena the translator for everything that went on when you were advising your client. It's a similar concept of applying a technology. If you're ever presented with that in court I would use that analogy. That's very good. Okay. Five minutes. Should we move on to final malpractice? Okay, so let's get a tally for the scores. Team 1 has 1100. Team 2, I'm afraid, has 350. And team... Team 3 has had a lot. Okay. 2950 if I calculate that. Write down what you're wagering. And you can wager up to triple Okay. Write down what you're wagering everybody. Imagine the Jeopardy music playing. We're going to say you can triple... You can quadruple your bid. Just to keep it interesting. I'm changing the rule of midstream here. Does everybody have it written down? Okay. Team 2 has not even been talking to one another. So there's no way there's a consensus on what... There all is. Four times. Okay. You have done some work for a seller on license compliance in the past. When seller is getting purchased by acquisition, acquisition retains you to do a code audit on seller. You agree and fire off an email to seller that acquisition asks you to look into the code and provide an opinion. You tell seller it's a good idea because you're familiar with the seller's code. Seller tells you about a compliance issue that you put in your report to acquisition. That'll practice. You can talk about it around to yourselves. Take a minute. Think about it. There's a lot of parties here. Lots going on. In the interest of... You've had your discussion. Let's... Should we move on to the answer or should we... Do you guys want to go around in circles? This is an issue spot. There's a variety of different problems here that you could fix it on or talk about. Why don't we just... Because we're kind of up against it, we'll see what Richard and I say, which is maybe because it's really heavy hitters up here. So you're permitted under Rule 2.2 to provide a legal evaluation for use by third party. So seller retained you to provide an evaluation. You're permitted to do that and disclose that opinion for third parties. But it's essential during this whole process that you're very clear who the client is. So you... The best way to handle this or my advice on handling this is to be to provide an opinion for acquisitions use. So anything that I find out during my investigation, I can tell to acquisition. Yeah, sure, yep. The issue here is that... That would have been bad. The fact that acquisition retained you causes a lot of issues. Because all of a sudden you've been unclear about who the client is. You weren't... It was seller. So you have duties to not disclose things that seller has told you. But acquisition wants to hire you and they want to pay for you. I mean, maybe the best way to handle this would be to say something like seller's the client. Acquisition's paying seller's bills, but it's not going to interfere with your judgment maybe. I mean, there's a lot of issues to unpack here. Everybody... And was everybody all in? Okay, so there we go. There you have it. No prizes this year, unfortunately. Yeah, sure, please, yeah. Yep. That's an important point, I think. I think it's... A lot of people use engagement letters and then a lot of... Even very sophisticated firms never terminate because it just falls off the radar. Okay. That's it. Thanks, everyone, for being a great contestant. I think we're going to be going full on. I mean, the first question that people have... I think you can just give out the URL and maybe that will... Well, so I have... I mean, well, the people need to type in their own questions anyway. I mean, that's a great device. We've got an extra mic so we're taking it away. We've got an extra mic so we're taking it away. Yeah, I mean, I think we'll be fine. I just was... I was thinking that there would be a blackboard, but there's no place to just write down what the URL is for the... So I'll just have to dictate it. Because I don't want to... I want a computer for the... Or actually, I can't... Maybe I will, just for the time being so they can get the URL. I just need it for a minute. I'm just going to give them the... Oh, wait, why don't we get a... Would you mind grabbing a fourth chair for their own assistant? Yeah. Oh, wait a minute. I don't have a... Wait a minute. I was assuming that there was... I don't have a connector myself. That's okay. No, no. Because all I need it for is a URL. So I can just tell them what the URL is. Yeah, so you can turn that off. Is this mic working? Can you hear me? You can probably hear me without it. But what we're going to do is this is going to be a panel discussion and we have... This mic is not cooperating. No, it's fine. Don't worry about it. It's totally fine because I don't plan to talk. But one of the things that... There is an etherpad set up for audience members to add questions that they want to pose to the panel. So we have some prepared questions that we're going to start with, so come to the mic, step forward to the mic kind of question. Question solicitation, what I prefer to do instead is there's an etherpad set up so that you can just add any questions you might have as we go along to the etherpad and then we'll sort of feel those... I'll moderate and we'll feel some of those questions too. So the etherpad address, which I can't project because I'm technologically challenged without an adapter, is... It's etherpad.wikimedia.org and then when you get that far it's going to be forward slash P, forward slash, and then scale 16 XTM. And if that's case sensitive let me know because I can tell you what the casing is. Yeah, sure. So it's etherpad.wikimedia.org forward slash P. So is there text on it already? Yeah, so it's going to be forward slash P, forward slash after that. It's all capitals except for the letter A. So scale 16 XTM. Every letter is capitalized except for the A. 16 X. I have written it down. So when you get there you'll see it will say welcome to WMF Etherpad but you got it. All right, super. So that's where if you have audience questions we go along then type those in and we'll take a look at those and we'll keep an eye on those as we go along. So with that introduction what I'd like to do is start out with everybody giving a brief introduction. I will... Why don't I do last because then I'll ask the first question. So why don't we have... Jennifer, why don't you introduce yourself? Oh, Stephen. They're on my... And Louis? I am the job council and co-finance startup that is working on enterprise open source support that also supports the maintainers who actually do the creation and innovation around open source. Previously I have been a co-worker of Stephen's at the Wikimedia Foundation. I've been an attorney at Mozilla, at Greenford Torrig where I'm represented among others. I've been in legal litigation very, very long time ago. I got a CS degree and wrote some very ugly curl. Stephen? You are the nonprofit in media and maintaining a few other media... So, and I'm Pam Chastek and I have been a trademark lawyer for my entire legal career. I moved into software and then free software. Software about 10 years ago and free software free software maybe for even close to 10 years. I'm in private practice now. I have a solo practice. Before that I was Red Hat and I was a trademark council for Red Hat which is where I got my feet wet with trademarks and free and open source software. So, with that the title of this talk is Trademarks Explaining Its Importance to Engineering and Executives. I'm very thrilled about the topic. I'm kind of tired of doing trademarks 101. So, I have to do something a little different. So, I have some questions and I'm just going to start with the first question that I've kind of prepared for the panel is do you believe that trademarks that are used for free and open source software or open culture are qualitatively different from those used in proprietary fields and if so in what way? Do we have a volunteer on that? Yes, I mean a couple of us. Actually, before I go, can those of you in the back hear me okay? It's not a huge amount. Yeah. You know, fundamentally trademark law is about protecting people's understanding of the source of a product and implicitly tied to the source, the quality of the product. And collaborative what Yochai Benkler and Hartford Law are inherently involved in muddling of the concept of source, right? There's a spectrum of that like some places the source is better defined than others, some anarchically a difference that if you want to do trademark in this space you really have to wrap your head around and you have to have health especially executives who come from outside of open source you really have to help them understand some of the questions that they have been told by their old lawyers are really cut-dried are no longer white. Well, you know, supporting you and building you up and also you have to benefit the community and so, you know, it goes old ways as opposed to, you know, you have perhaps greater requirements to go control that far and make your mark that much stronger because when you have all these people who have this stuff. Yeah, I mean absolutely. A community can be, as I'm sure Stephen has a community can be your greatest asset in promoting it, right? In a way, a lot of those stuff about freedom and sharing and the project itself. It also serves, I mean tying together what both of you were saying, I think people who are really passionate about there was a guy at Wikimedia who had the Creative Commons logos tattooed on his knuckles and Red Hat announced that they're re-branding and in their FAQ about the re-branding there was something like we know have logo tattoos and they all said they were okay with this, right? So it really becomes let's say for your community. We have a provision on making a cake with our logo on it but do you have a provision for tattoos? Now I'm fascinated, I want to read my question. We don't get that many questions about tattoos. We get a lot of questions about the cake. People want to make use of the logo and that's a good thing, creating more value for the project. Yeah, I think, Jen, I like Jen's point that it's a plus and a minus to have this community involvement. I think one of the transitions I think a traditional trademark law now is this concept of social media and having constituencies and they're all on Twitter and people want to use their icons which is all well and good. One thing I think, we've been doing this for years so it's not new to us this concept of community involvement but it's also a little different in that if you're a traditional, say you're a luxury brand and you're trying to broadcast your message and you want to have people express affiliation with you it's still sort of one directional broadcast. It's still the company that's trying to direct the messaging, direct the branding and instead here, in this situation it's a much more collaborative effort that directs the branding and the goodwill in that trademark. It's definitely an interesting world to live in. Moving on to the next question it says that I have in my experience executives and technology companies have a hard time in general understanding the value of trademarks and in what way is it better or worse for trademarks for open source and free software projects or products? With a lack of, those are executives who are going to be well prepared clients to be able to control like this so much like but that can have champions of trademark oh I need to control everything those are not people to do that let's slow down a little bit what's the reliant trademark controlling as we do the whole product? So let me just interrupt is there an etherpad that has questions because the one I'm looking at that was for public I haven't seen so I may be on the wrong yeah but there's nothing there has anybody posted a question on an etherpad? Huh? Okay I see test alright so you're just not that's okay nobody's curious that's totally fine but let me just leverage off of some of these particularly Jen one comment that you made which is what let me see where's my question no it was no it was so what is your experience with engineers and their approach to sharing a trademark because I think this is where this is where things people say well you know why can't we write a copy left why can't we write a trademark left license so how do you know how do you kind of corral this this sort of need for the trademark to do its job but maybe people don't understand sort of how trademark actually works particularly in comparison to copyright which they're much more familiar with do you get pushback from people on sort of thinking that they should be allowed to use that more community members I'm thinking that they should get to use the trademark when you when you have to pull the reins and on that or maybe wikimedia wikimedia wikipedia would have sort of experience with that trademark is sort of like a discipline for lawyers it doesn't quite have you know to elaborate a little bit on that to give you something when Stephen says epic we usually measured our comments at wikimedia in units of Moby Dick so like you know the trademark policy was one Moby Dick's worth of comment the privacy policy was two Moby Dick's worth of comment that kind of thing right like I don't remember exactly how much the trademark policy was but it was large and the other thing that I think that wikimedia did really well that folks should take a look at if they're curious was actually engaged with some user experience designers to like make it not just a traditional Roman on a white background document be much more interactive that's not going to be appropriate for all organizations but I do think you know wikimedia Mozilla has some similar I think Mozilla may have been the first open source brand to do a trademark FAQ the price of having a really successful open source brand is getting a lot more questions about if he wants to identify with it which also means they're going to ask your lawyers and just to follow up particularly with with Jen and Steven can you give us examples when you mentioned that you had to push back on some people when they asked for things can you push back the same thing with you are there any examples that you could share with us on where you thought that there might be what developers or what community members wanted to do maybe was a little beyond what you were comfortable doing with respect to protection protecting the trademark maybe they do have the tattoo across the map I don't know if I've ever looked but we do have the ability as a company to direct them to our open source projects and to keep them from being you know so just sort of working with that mindset but also you know versus any other what are people often want to use the trademark by Hélio and that's different and very consistent and that's going to be very different from if you're not familiar with it it's essentially like wikimedia but for meps even in that in some ways very similar for adapting the wikimedia policy to use for open street map there was still a lot of leaks around how the open street map commercial community has a different relationship to open street map than like commercial users do for wikipedia so we just have to adjust that quite a bit so that's going to be one of those things where definitely it's not been copyright you know really cool that's surrounding for good reasons there's not cold weather I would say in my experience there I've only heard the mic in my experience it is this is the most changeable the most changeable areas are sort of what about merchandise whether or not people are allowed to make merchandise on their own and the meetups and the conferences and all of that and whether or not people can use the trademark and that's and from my perspective it's all okay we just have to paper it up the right way it is a very sensitive issue for in each community will be very different on one some will say we're happy we don't care if people make t-shirts and sell them that's totally fine and other people say well no you can make a t-shirt and give it out to your meetup group but you can't sell them or if you sell them you have to give us some of the proceeds I mean there's a lot of different ways to do it but it does change a lot but let's use this as an opportunity to kind of jump to the question which is how does having and I think you've alluded to it a lot but maybe we can see if there's any more how does having a proprietary product affect the name of the open source project like you know that you're kind of trying to use the same name for two different things and how are you trying to balance that do you find that how does the use of the name for the open source project have a positive or negative impact on the proprietary product yeah my experience is it's hard it's exactly right it's very hard to get people to listen to this when it's actually as we've said the trademark actually turns out to be probably the most important facet and it's really hard to get people to understand that and to pay attention to it and to critically understand how it affects everything going forward and why is it to pay money for it yeah right do you have sales typically about this I said I would love and it can be hard sometimes to explain and sales telling some of those stories in my experience telling some of those stories about like hey we sat down at the table and we tried to sell the thing and everyone at the table was confused like when you can tell those stories effectively a lot of people who have previously been through prejudice in their thinking can be like oh I understand why this concerns me yeah yeah there's a question coming in well it's a follow up so I was kind of waiting for whoever's typing it to finish typing let's see it says following up on Jennifer's comments about product naming and branding choosing to trademark your open source project and use the same name for the company can end up requiring you to use that name for every project the company creates in order to maintain the brand association I think if I'm yeah exactly and one of the things if I'm understanding it correctly for example Apache you know Apache tries to enforce the use of Apache as umbrella for also Apache was just originally the web server but now it's you know foundation it's a home of many many projects and they try to they try to get everyone to say it's Apache Kafka it's Apache Cassandra it's Apache Hadoop so that's maybe one example where you know the sort of the naming strategy sort of a naming strategy but I don't know if that's that's one example can I ask a follow up on this actually so I mean this is I think really for both of you correct yeah I think that open source creates an additional umbrella brand right you know and they've got history with open source and in the past yes of course they're seeing the light you know and you know moving forward and it's a good direction but you know I'm just thinking for a second I'm just wondering if it's a different way like you could imagine the situation where the CEO says we're going to rename that to the Wikipedia you know I think the complexity of the open source project is you have the community involved and so what you have to consider there and this was when I worked with John Adams at Red Hat who is the brand manager there he always thought about it as being an open source he thought about traditional marketing as having two constituencies which is the seller and the buyer the open source you have of this third leg which was the community and we thought about it as adding a third leg which actually adds stability to it but for every decision it's not you know I think it's for every decision that is made about the community name you have to take that constituency into account also you're not just worried you're not just bringing in the branding company that says well if the name can't be too long or it won't get resonance you know you have to really invest the community in what's going on too so that kind of affects how it's going to you know what's going to happen and the chef not the problem that Apache has but I wouldn't characterize it as a problem but the situation that Apache is in is they became known for their flagship products the Apache web server and people still think people just I refer to Apache I don't refer to it as the Apache web server I refer to it as Apache so there's and I think that's the problem when you start to gather those other products and try to put that when you start with a name that's already very strongly associated with one project or one product to then try to you know build that out and say oh but now there's also chefs you know whatever it just it's it just I think it takes years if not decades to get people to appreciate that you've trans transmogrified this product's name into into a house brand. Right. Yeah. Yeah. Apache web server project has not been Apache for decades 15 years. Yeah. Yeah. So what should projects what should a new project consider when thinking about naming a new project what should they think about whether it's from a corporate perspective who's getting one or never name anything it's too much work. Yes. No. They have decided they've already drawn their own logo and they will start going you know and you know as an attorney involved you can see it like a check by a prior of yours. Open source projects we really loved and we were ready to go and test with Jen and make sure that's okay and it wasn't going to be two weeks before we it was already live just you know our challenged lawyers you know and companies always getting there early and this is a good example and you can take my pain if hopefully you should. If I could just take a poll in the room how many of you are aware of or have assisted with any company open source not open source any company who got that letter it happens all the time. It's not just limited to open source it happens all the time I consider it my employment but Fedora names are there. So I'm going to have a prepared question I'm going to combine with one of the public questions so that the next topic of discussion for the panel was the very tricky area of enforcement of how to enforce the trademark in this communal environment and then one of the questions was I think this falls into it thoughts on using trademark in a user name or a handle like Twitter for example Linux girl what if they had a patron and were getting money using this ID so it's enforcement not just sort of traditional enforcement but let's also expand a little bit sort of into social media which I know is just like you know when I was at Red Hat the number of icons the the not the favicon but like in Twitter when you have your picture avatar thank you the avatar like the number of shadow men I saw in avatars you know so what exactly how do you go about this delicate task and you know where are your lines the same or maybe different because of the communal nature of the trade you don't have to tell up two stories here we can really just privilege here too I love your brand because they love your project they're going to donate their time to write codes they're also going to tell you about people using your mark there are sort of results that you don't require a lawyer just to get them all so thinking about ways to and open source projects in particular you should be like we used to talk a lot we still do talk a lot about dominant use right that if you're using the brand I'm nominatively calling this same software by the same name and you know and I think we're not just accept internally but to affirmally say hey we think nominative fair use of the thing and we're not going to go after it and really be sure what are the different approaches and projects that's really hard one right I mean I have a former client of mine they were no longer my clients one but there was an interesting twitter bot that and one thing I wanted to kind of tie together was the concept of enforcement and how it ties into the trademark policy which is it's very easy when you have a good trade mark policy it's very easy to point to it and say and hopefully and you know hopefully keep it updated as new situations arise and use cases come up you can keep updating your policy and so it's very easy to say I'm really sorry but this is the policy and you know we've said it so it gives everybody it's much harder I think on the company to be that clear because we like to you know we'd like to sort of keep it close to the vest so that we have some ability to you know take into account different situations it's very hard to be to sort of put down these bright lines on what you're allowed to do and what you're not allowed to do but it is much to the benefit of the enforcement when you can point and say well no really we said you're not allowed to put the project name in the banner it only has to be you know at the bottom or in a badge or it has the hyperlink or whatever you know whatever ways that you allow people to express their affiliation and appreciation for a project that isn't going to but and it is you know a lot of it is so much in the context that you know I see I know infringement when I see it I know when it looks misleading but to try to define that in sort of you know in ways that you can give people some safe ground it's difficult but it's usually important and then I think it's also important for the even though the project owner doesn't necessarily have to abide by those guidelines that the project owner abide by those same standards that that's it's the same rule for everybody and it's not the company who's doing something different because they're the owner and so nobody's going to sue them for you know whatever they do but that's you know not just good branding as to always have this very consistent branding message message coming out but that's why I think Mozilla had that you know why the trademark guidelines are so much more in open source projects than just regular commercial companies because the commercial companies just say don't use our trademark and they in many in a lot of words they say it in many different ways a lot of words but that's fundamentally what they're saying yeah yeah right I'm not a big fan of those to begin with I just think it's a little more nuanced requires a little more nuance than that I like to think I as a human being offer some value in the proposition wow two plugs thanks yeah I have one question I don't know if anybody has any thoughts it says interested in thoughts comments on books written about trademark technologies I'm not quite sure what that trademark ED technologies I'm not quite sure what the question is I don't know if anybody wants to jump in and elaborate on what you know any other sort of new lighting thing I want to be an advisor for employees to say we support open source we support the truth and I would add that it's also important to be the technology that falls apart so like not so like there had to be a whole out of and settlement on that and in a more concrete specific to this group there's a pretty high technology in the other day and the trademark a couple months back there's no companies I would say more than anything else in the kind of situation I have a general question here for all of you so how has working in open source changed you as a lawyer so you had a CS background before becoming a lawyer I went to a school okay and what about I was in space yeah okay I've got people on both sides of the equation I mean that they've stumbled into it I was in the stumble into it camp and then we have people who so it's a question still open yeah for me or maybe I should say how does how does being how does working in open source change you as a lawyer how does being a lawyer change your approach to open source we could go both ways on that yeah sure five minutes how does open source change my approach to be a lawyer like I I'm very pragmatic about my lawyer I think in a way that don't all have lures for a role get a bulldog and look at what it looks like I love it too I think that there's two one of them is talk about how open source were the trademark 101 but trademark 101 is a fun conversation they are often sort of like I think I agree with the point that the developers and engineers you work with tend to be much more interested in legal aspects so those who work in open source are much more interested in legal aspects than in traditional companies yeah yeah true I'll just relate one story I did a settlement between an open source project and a proprietary company and I kept telling the lawyer on the other side they kept asking for things that would be very traditional in a settlement agreement one for example being the terms would be confidential and I kept conveying these various things to the lawyer on the other side and he would take them and go away and I ended up having to have a call with the legal department on the phone I was with the company that I was adverse to and said exactly the same things that I had said to him but apparently they didn't believe him when he was saying it because then when I was there and I was like yeah it's not going to happen it's going to be confidential and they were just like dead silence on the other end of the phone it's just beyond their ability to understand how it was possible to just give them a lot of money to make it go away actually you know it's not going to work and it was and I had not realized how far I had come until I had this conversation with someone who was like still way back there so completely outside of this environment I just could not wrap their head around the things that I was telling them it was a very entertaining conversation so let's see how much we're done and it's up. Thank you so much for your questions appreciate it and then the rest of the history so then I became a technology lawyer and then the former CEO of Avanade was the first CEO of SHEP so he gave me an idea so yeah I'm going to take a few lawyer to open store for you are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? are you okay? Yeah, I'd like to see you. I don't have a... No, I don't... You don't get it? You don't get it? I like that. I want to see you. Um, do you know how to do this? I'm not gonna eat that. No, I don't. I can eat that because I think you're gonna get a stomachache. Yeah, I'll eat a little bit. You know that I can... I'm probably not... I'm not gonna eat that. No. Well, um, you know, the only thing that she did is call the cops. Come back after you're in the parade, and if we have rules, we can come in and sit down, but when you drop your stage, they are out. And you can't be going in and out, in and out, in and out. But they are not... they want to go in and out, in and out for a minute, in and out of the... It's not even..... them narrow extending... Okay. ... That's great. Well, I'm lucky that I read it on the copy and it was five minutes late. Yeah. Um, out of bed. You don't write this... Tell the это... Okay, so it's usually funny when I just start crying. I'm just not going to go with the microphone on the schedule, but please fill in because David's the one who wants to make it. I do offer the kind of perspective of the company when they're doing it. One is once we usually get kind of a template together for the company, they don't need us anymore. We kind of give them a framework how to do this, how to think about it. I also think that companies are becoming much more attuned to open source contribution. A lot of them are doing it as part of their business, and so they're just much more comfortable with the topic. And so there isn't that initial on what you mean. Okay, I've got to go get some special counsel on that, but certainly I do see it. So, again, lower on the tone of who you are, you're not going to get to someone. You don't want to. You're right. No, no, no, that was very fine. But actually, when you think about it, when you talk about the abstract, it has a great deal of the way you start the whole big project and say let that employee own the contract in that project. So is there any argument that if you allow an employee to negotiate against yourself, Pam? I mean, it would be, you know, it is, it is the value, I mean, it's the whole value of what's open source and why not. And he talks about how it's not over. But if you're talking about everything that I do while I am in an employee's value, but, you know, that's pretty, that's pretty big. There are also some cases that recognize that software development in particular is not an enterprise job. And so if you try to say, well, it's only during work hours, that's not fair to you. For example, he owns the company that was related to their technology or he's licensed and even involved in related technology. If it is rated on the employee on time, even your own resources and materials, why is this area so that they get from things that come across and say, oh, there's also corporations trying to grab everything. It's not that low. The most company favorable, I suppose, is the most, you know, one contract or one thing that I see quite a lot with the company will agree basically that any of the development of this employee will be contributed to this project. Under the license or, you know, under those terms. Going a little bit more favorable to the employee. I've seen where the employee is actually authorized. And the problem with the first one is, okay, you've agreed to contribute it, but if you don't, is the employee going to choose the company to make the contribute it? Do they have the resources to do that? So actually authorizing the employee. So the company says, yes, we own it, but I guarantee you a license to reuse all these developments under the MIT or some really broad, permissive, open source license that enables them to go around and contribute it. And maybe a test changer employee will work on these. They have a discussion about what they're going to be working on. I'm always reluctant to rely on what would be always better to have it codified than not, of course. But I wonder how that would work. You wouldn't see the source property or the... I think we're getting the organizers of this check. It's actually related to what about hiring people located abroad and selecting them as a contractor versus employee given their geographic set. Yes, as the companies have to... I'm just trying to see if they have a place pushing back to enable it. Just be really careful. And you know, I do worry that people in these sites would have gotten hired above them because there were a lot of responses. You know, they claim to have owned it, but then they go to Schedule A and it's pledged. The whole contract is invalidated. We talked about that. And so this is sort of our retortion of a policy decision. Employee we want to remember, which is to get this and this provision. Never this provisionally. They have a policy that provisions are standardized across the... Technology is a problem. So if you choose like, hey, the third party code anyway, maybe we know. Thank you. I admit I was fishing a little. So much got to do it. Yeah. That's what I'm trying to learn. It's there. Yeah. Yeah, right. Yeah. Yeah. Yeah. Yeah. But, yeah. So are you located in Cal Poly? Yeah, we're in the middle of the year. Yeah, I deal with them. California, Indiana, tobacco. I dealt with them last year on tobacco trade. Uh, okay. Yeah, I'm located in Colorado and I try to be closed in between so I can deal with those. And I have a call, I call myself a wife, I have a friend, I support them. Yeah, I think it's pretty cool. All my, we've got action, deploying, we've got on-track stuff, we've got the project deal, we've got all of that. Yeah, that's cool. There's the other people dealing with it, but I'm sure there are other people. Yeah, I think that's what I want to kind of hold with that. Yeah, I'm just kind of going to give you a little context here. Yeah, I'm just trying to get enough of my trumpet. You want to give it a rotate? Sure. I want to do it. How do you carve off that little bit? Yeah, I have to do it. Just point on where you stand to do on this thing. Yeah, that's why. Yeah, I usually have it. I usually have a try over triads. Yeah. Yeah, that's cool. Yeah, it's fun. I'm not ready to go deep. Seriously, we're not. We're just talking about what you call a collection. Yeah, I think that's great. And that's why I got to this area of the law. You know, not just to open the doors, but to allow yourself in general to share with the law. There's a lot of stuff to be said. Property law is pretty well written. Yeah, then you're right. People on the other hand, I got to do it maybe 10 years after he was arrested. So, you know, I thought it's time there's a lot of stuff still to be clarified. There's a lot of that has to do with this. Yeah, but then we even see the carving moving a lot. Yeah. Yeah, that's right. Yeah, no, that's not the case with the law. The law moves in a fast pace. And he seems to be ahead of the curve. And there's so often the subject matter technology moves so fast. So he was just going to settle this and figure it out. Oh, yeah. A lot of times the technology moves in a fast pace. Yeah, no, it's very interesting. I work for it. Oh, you're right. I am a main member of Edmond for many years. Yeah. It's very cool. We appreciate that. But yeah, a lot of stuff has to do with it. We've done, you know, we've even had to argue a little bit at the U.S. versus Microsoft. I think we have to look at the record. Yeah. It seems to be more ahead of the curve. I'm a main member of the law. I'm a main member of the law. Can I hear you? We're trying our best. Right, so what we're going to do is we're going to have fish for each game, and we're going to have a guy that's right under the study, and we're going to have a show set for each game. So it's kind of a tough endeavor, but, you know, I was just curious because on my opinion, I think we're just trying to make sure order is going to be a tough one. It would be fun. It would be a great experience. I don't know. I got to have like a nose for litigating. I handle that. I just play a few of the crazy things. Yeah, I don't think you've played enough. Yeah, that's right too. You don't want to have deadlines. You have to go to the EVDA to do the marshal hearing or whatever. You're going to screw up some stuff. I don't want that. I'm sure they always happen as a person. You probably know, but I think she is going on par with me. I'll say a few places. You're going to have to do this. You're going to have to do this. You answer yes. You're going to play with me. You're going to play with me. Yeah. Yeah. Yeah, but I can't play anymore than I sure have. Yeah. I can shake my head at that. Yeah. Yeah. We're going to play on the right now. If you're like a non-product, you might be going to do that too. That's cool. And you have two people on the phone? Yeah. Well, it's right on. Yeah. What's your background? What's your question? Uh, it's one of these things. Is that an open lab? Yeah. Yeah, I mean, she goes, all right, I'm going to have to try this. Yeah, we basically work on the answer, but she doesn't have to be answering all of these things, but... I think you already learned it because I told you a lot of people do it right now. I know. Oh, yeah. All right, that's cool. I like that. I think my head is giving me more of that open work for most of you. Okay, but do you have any answers to that? How come you didn't answer? I don't know. I'll take it on the path. I don't know where you're going to get the answer. Are you going to do a question test? Right. Uh, I don't know. You're going to get the answer. I really don't know. That's why I'm doing this. You're going to get your answer. All right. I know I'm learning a lot of things from you. There's no reaction. We're talking about one of them. Oh, my God. And I think she's been like a big litigation. Yeah. Oh, my God. Yeah. That's a great hard one. I don't know what I found out more than the whole thing. So once I kind of knew I was going to do that, I wouldn't know what I was going to do. Yeah, it's a fair answer. Yeah. That doesn't feel right. It's supposed to be a good challenge. It would have been a good idea. I think it's used more to have a wide field and more complicated. There's a lot more complex stuff. There's a lot more. But that's why I'm curious, you know, what other people do, especially given that you've got the real form of that. That's a good one. Yeah. Yeah. I do that every time I go in. Do you think I just want to give people some ideas? Yeah. That's a great idea. Oh, you're right. We've got an idea right here. Yeah, I like the idea. Not, not, not a problem. Yeah, right. It's a different person. Yeah. And that's reasonable, especially as a software that has clients on the outside of the game. Yeah. That's the other game. Yeah. That totally makes it less palatable from a reasonable perspective. Yeah, right. That's just a applauds number. Yeah, it would make it less数able. You know, you know, it's just a pretty good one. Yeah, you know, the general style of social media with the world of social media, with the world of social media, with the world of social media... Yeah. ...and that really it. Yeah. But if you, if you see what I'm trying to do with the world of social media, Yeah, I mean, you can't think what that is, like, no, I think that's cool, man. If I were in the area, I would take one of those. Yeah, I would. I just wanted to see what you do. I just wanted to know what you do. I mean, you can stay in this area. I just wanted to know what you do. I just wanted to know what you do. Yeah, I will work with you. Yeah, right. I just wanted to know what you do. People have a question. I'm not sure. I can definitely tell you that and everything about there, maybe Seattle has an area where we don't have much. But what's the question? How do flights pass the law? I mean, open source and software sometimes are slow. That's a little bit of a barrier right? You don't understand that software compilations, with other public lightings and stuff like that. So there is an understatement for my degree. Because it's hard enough software to be determined out there, right? Yeah. And I think that also needs to be done more specifically than a lot of people, even not a lot of people. Yeah, I like having that together with my cast. I mean, I think it's certainly a stellar point. Even yesterday, somebody contacted me about that, and said, your profile, just get out and compare it to the majority of other lawyers I see. Sure. That's a good thing. Yeah. So yeah, I think it's a smart idea to go in that direction. What made you decide to just go into CS to get with it? I didn't know what else to do out there. Set? You're up a computer. You're building my computer. I'm building my computer. I'm building my computer. I'm building my computer. I'm building my computer. I'm building my computer. I'm building my computer. And it's my time. I'm entering a tournament. So that would have been college or college. Is there a college term in American history? Yeah. Yeah. Right on. No, that's a good one. I'm curious how the people see it, where they did. Yeah. I'm like, I said, you're a similar track to myself. Yeah. I went a little bit more throughout. It was psychology, but I realized that I was a different person. Yeah. A better way. Yeah. In retrospect, I love that. I'm still excited. If I were to go purely off of, like, letting you know something, but I thought it was a happy chance to vote. Yeah. Yeah. That addition or something, like a fun-defined correlation. Yeah. Variable how to properly correlate. Yeah. But I think that's new. I think that's new. Yeah. And I realize that you're a law school. Like, if I weren't going to teach law school, I'd do a video game company out of there. Based on things for me, but they had a president to do soon. Yeah. Because I was there. I was there. I was there. Yeah. Yeah. Okay. Yeah. Yeah. Yeah. Yeah. But, yeah, I work at a company. Yeah. Yeah. And I work in a company. Yeah. Yeah. I'd do definitely more. Yeah. I'm going to do more into software, etc. Yeah. Yeah. Yeah. That's kind of a problem for me to be like, if you're not going to do law school, there needs to be an elective of someone. Yeah. I could do it. Yeah. Yeah. Yeah, formerly T.I. Yep. I thought they eventually changed me. I don't know. I was there. Yeah, it's been a while. Yeah, it's been a while. It's been a while. Now that I've lived in elsewhere, I don't really need to choose. But after living in... I agree. I would say, make her... Yeah. Yeah. But it's been a while. But it's been a while. Yeah, right. Yeah, yeah. Yeah, you can get good barbecue there. But... No, I didn't. I did it. I did it. You know, and this is one of those situations that I use... I use... I use... Yeah, my wife found a barbecue. Yeah, we got a Christmas holiday treat from New York. Yeah, I did it. They get it from here? Yeah, they basically... Yeah, that's it. They get the order for whatever, then they send it to the restaurant, the restaurant that overnight did it, dry ice or whatever. You get it, and literally, they've got LA, Delhi, Kirtada, stuff like Texas Barbecue, Great New York. Let's forget it. Yeah, yeah, yeah. Yeah, I was wondering if you would follow me on Instagram, I don't know. Yeah, I would. Yeah, I would. Yeah, yeah. Yeah, okay. Yeah, I would. Yeah, yeah. Yeah. Yeah, yeah. Yeah, yeah, yeah. Yeah, yeah, yeah. Yeah, yeah, yeah. Okay, so I try to, as I said, it's kind of like a good middle ground, you know, that it kind of embodies a lot of the value of California and, I suppose, maybe some of the customer experience. Who would accept it as a text? Yeah, yeah, yeah. If I reach out, do you know the one thing that's frustrating is not to get a call from the Walmart? Yeah. Like, I would say that. And so, it involves cycling through a lot of... Yeah. However... No, no, no. I just want to know if people like to sleep. Yeah.