Professor Bob Gomulkiewicz' Installation and Lecture

Fostering the Business of Innovation

March 6, 2013

Dean Kellye Testy

Well good evening everyone I'm Kellye Testy the Dean of the University of Washington School of Law and it's a great pleasure to welcome you this evening to the installation of Prof. Bob Gomulkiewicz as the UW Law Foundation professor of law. I am so pleased that you can be with us tonight here in William H Gates Hall. And I noted that as we were in the hallway taking pictures that are wonderful alum and namesake of the building Bill Gates Senior is with us this evening so I want to pay a special welcome to you.
And I also told Prof. Gomulkiewicz who is my good friend that there is no pressure or anything but my parents are also here this evening in the back. So I hope you'll all have a chance to say hello to them as well. I do greet you very warmly this evening. And these are just the events that I so enjoy. Our faculty and this law school are leaders for the global common good in every respect. And as we continue to advance as the law school the faculty continue to be our intellectual leaders in that regard. And so to have an opportunity to celebrate the fact of their contributions and scholarship and teaching and service and the advancement of this law school is a joyous occasion for us and so I am really pleased that you can be with us tonight to join in this special ability to honor Prof. Gomulkiewicz.
We also have an occasion tonight to think the UW Law Foundation. When I first became the Dean here one of the members of the board told me that the Foundations aim was to be the Dean's best friend. And I want to tell you that the Foundation has certainly delivered on that in every respect. I know that what it meant when it said that was to be an asset to this law school and to me as the leader of the law school. But I have to say that the members of that Foundation have also been the Dean's best friend in every personal respect as well. It's just an amazingly dedicated group of our alums and it's a particular pressure tonight for me to introduce the president of the UW Law Foundation Linda Ebberson.
Linda is a graduate from this law school from 76 and she is one of Washington's most distinguished family law attorneys. She practices with the firm of Lasher hose Apfel Sperry and Ebberson and I will note that three of the fair of those named persons are alumni as well as belief. As I noted, Linda is our leader of our Foundation as its president. She has been an incredibly good supporter of this law school in every way and I am constantly grateful for her wise guidance and dedication to leadership of the Foundation. So Linda let me ask you to please join me and share some remarks about the Foundation.

Linda Ebberson

Thank you for those kind words Dean Testy. I would like to begin with a brief history of the law school Foundation. The Foundation was formed in 1969 and its bylaws as many corporate documents enumerate all of our options and goals in supporting the law school and it's quite a lengthy list but is the Dean said and as Joe Brotherton my predecessor in this position for the law school Foundation dubbed us: our job is to be the Dean's best friend. And we are honored to have the opportunity to be the Dean's best friend by being also creating the UW Law Foundation named professor of law established by the board. Its purpose is to further the mission of the University of Washington school of Law and its professors as leaders for the global common good. This find is used to retain distinguished faculty at the law school. I am honored to represent the Foundation and the Foundation board is honored to find the awarded chair to a distinguished professor of law. We set this up and it is designed to encourage, enhance and reward faculty members scholarly work in recognition of the importance of engaged and committed faculty members.
I would like to introduce professor Calandrillo who will be speaking about and will introduce Prof. Gomulkiewicz. Prof. Calandrillo joins the University of Washington Law school faculty in 2000 and was named the Charles I stoned professor of law in 2009. Prior to teaching he clerked for Judge Alfred Goodwin on the Ninth Circuit and practiced corporate law at Foster Pepper in Seattle. Professor calendar local graduated Magnum coon Lottie from Harvard Law school where he was a John M Olin fellow in Law and economics and a member of the Harvard Journal legislation. Please help me welcome Prof. Calandrillo.

Steve Calandrillo

Thank you Linda Ebberson and the Washington Law School Foundation. Your service and your contributions to our school have mattered so much. It has been really valuable to have your support.
It is my honor and privilege today to introduce the man of the hour, Bob Gomulkiewicz. He is one of the only faculty members in the school who has a harder last name to pronounce and spell than my own so I am pretty excited about that. I was really touched when he asked me to speak and give a few introductory remarks today because I think so highly of him and I want him to know that. It's not just for the work that he has done at the law school and what he has meant to this institution, but it's also because of his integrity. It's because of his leadership. It's because of how much he cares about our students. It really means a lot to this school. It means a lot to me that you are being recognized with this well-deserved honor today.
I want to start off by giving a few of the basics of Bob's bio and then I'll talk a little bit about what I think are the real highlights of the man. The basics: if you read the brochure you might think he was a lifelong North Westerner. Certainly I thought that reading his resume. That's not true. Bob was born in Pittsburgh, Pennsylvania. His dad worked for Alcoa, the aluminum company. When Bob was just three years old his dad was actually asked to go start up a plant in Veracruz Mexico, where he spent some time in his very early years. His dad was then transferred up to Vancouver, Washington. I think Bob was around age 5 at the time. You might think, “okay that's what started as Northwest career,” but no -- shortly thereafter his father then was transferred to Surinam in South America. Bob had to actually show me, he drew a little picture today about where Surinam is in relation to Brazil. And I actually expanded my geographical knowledge because of this. But that is where Bob spent some of his real formative years from first grade to third grade living in Surinam. And this international experience still colors his world-view to this day -- spending some of his formative years in poverty stricken countries--both in Mexico and in Surinam. It wasn't until fourth grade that he moved back to Washington State -- to Wenatchee where he resumed the rest of his fourth through 12th grade education. And that then led him to go to Pacific Lutheran University where he graduated magna cum laude in 1983. He continued to work through college by the way to pay his way through; working as a laborer on odd jobs because it was so important to have that experience through his collegiate education. Luckily for us, afterwards he decided to come to University of Washington School of Law. In 1987 he received his law degree here. He also received a degree at the Jackson School at the same time. While at the law school, he served as Executive Editor of the Washington Law Review. After graduating law school and having a very successful academic career here, he went to the law firm of Preston Gates & Ellis (now K & L Gates), where he represented software developers, got to work on the famous Apple v. Microsoft case. And obviously the work with Microsoft helped transition him to the in-house position as Associate General Counsel, where he spent a decade from 1991 to 2001 heading up their licensing team. It was in 2002 that we convinced him to come and join us again at the University of Washington School of Law, heading up our IP LLM program -- which I'll speak more about in a moment and Bob's role in developing the program. He spent 10 years making it into a leading intellectual property program. He is now the faculty director of our Law Technology and Arts group. He was also a Visitor at Oxford in 2008-2009 and today he is our newest endowed professor, the Washington Law Foundation Professor of Law.
There are three important themes that I think we need to discuss when we discuss the work that Bob has done both here and elsewhere that means so much to our community. First is the impact of his scholarship. These professorships are often awarded for scholarly impact and there is no question that Bob meets that test easily. Secondly, I want to spend a fair amount of time discussing his transformational role when it comes to intellectual property education in America -- his role in building our IP program here and the model it has become for other programs across United States. And thirdly, I want to talk more broadly about the principles of leadership, the leadership that Bob has running through his veins that we can all look to and act as a model for us all.
First, the scholarship. These professorships are often awarded to recognize scholarly impact and Bob has been a transformative thinker when it comes to intellectual property licensing -- transforming an incredible business career at Microsoft, the practice of law as a licensing expert there, the head of their licensing team into numerous articles on mass-market licensing and open source software. I'm sure we’re going to learn a lot more about that when Bob gets done with his talk today. I did a quick literature review in preparation for this introduction and I found no less than 19 separate law review articles that Bob had written. I found at least three books/treatises on intellectual property licensing, at least 500 citations to his work in at least 100 different places to what he has done. I also did a quick Google search. If you do a Google search on your own name -- I don't know how many folks will admit that they have ever done that, I did one on his name earlier. 50 pages of hits, every single hit relevant before I could find one nonrelevant hit. It is very tough to count anybody's pages and not get to irrelevant hits 50 pages on down the line. But it's not just the quantity of his work; it is the incredible impact that his scholarship has had. It has really been profound. His 1998 article, “The License is the Product” is credited with framing the debate about mass market software licenses. I spoke to Scott David (the Executive Director of the Law, Technology & Arts Group, yesterday about this and he said decades ago when he first met Bob and certainly by the late 90s he remembered Bob saying, "In the world of software the contract is the product. The contract is the product." And in saying that he wasn't trying to downgrade the efforts of the developers and the software engineers; and obviously those technological innovations are key to much of the success that we have seen of the last 10 or 20 years when it comes to computing. What he was trying to say is that in the absence of the contract (i.e., a license) there is no business plan. And Bob really was among the first to see the relationship of law and technology and how they work together to create value. Just the product itself will not do it. The license is the product. He followed that up with “How Copyleft Uses License Rights to Succeed,” providing a legal lens through which scholars understood or began to understand the open-source software movement. More recently, maybe 5, 6, or 7 years ago, I remember an article of his he wrote entitled, “General Public License 3.0: Hacking the Free Software Movement's Constitution.” In this piece he created a simple license alternative to the complex existing models that were out there. He didn't just criticize the models; he actually provided a model that others could use. So many of us criticize others in our work. Very few of us actually provide solutions. If you look at Congress today, they are very good at criticizing but much less good at actually creating solutions. And today obviously the topic of his talk, “Fostering the Business of Innovation,” which we will all come to learn a lot about once he gets a chance to stand up here.
But it's more than that -- it's not just the law review articles. It's not just a Ginsu knife. It’s not just the knives, you get more! You get at least two casebooks, “Licensing Intellectual Property,” and a new one on “Legal Protection of Software,” coming out by Aspen. And it's not just that – you also have his exhaustive treatise on “Intellectual Property, Software and Informational Licensing.”
The significance here is Bob’s scholarship has this very rare combination of serving three different audiences. He has stayed on top for all three. He has the law review articles for the academics and for the theorists in this room. He's got the casebooks for the students of intellectual property law and he's also got the treatises for the practitioners on the ground actually doing intellectual property licensing. His scholarship truly walks the talk of combining theory with practice. We talk about that all the time. Bob actually does that. He combines theory with practice reaching multiple audiences. He realized early on, even during his business career, the impact that legal scholarship could have on the world of intellectual property licensing. That's number one, that scholarly impact.
Number two: his role in building up our intellectual property LLM program -- now the Law, Technology and Arts Group -- of which he is the faculty director. It is not an over statement, it is not hyperbole, to say he has actually been transformational when it comes to intellectual property education in the United States of America. When he first asked me if to offer these remarks today I thought it would be a good idea to talk to Toshiko Takenaka, because I knew she was also heavily involved in the development of our intellectual property program. I wanted to talk to her about how it came about and Bob's role in building up our Law, Technology and Arts group. Toshiko, as you know, had developed CASRIP -- the Center for Advanced Study and Research on Intellectual Property. I memorized that because nobody can tell you what it stands for. And it had become such a success that in the early 2000s there was a discussion of starting an actual intellectual property LLM program and really expanding our reach in intellectual property law. And she had discussions at the time with then-Dean Joe Knight and then Associate Dean Pat Kuszler (who is again our Associate Dean) about creating the very first intellectual property LLM program on the West Coast. There were maybe only 10 or so such programs in all of the United States -- and none on the West Coast. And this was a risky and new venture. And the first thing that was decided upon was that we needed to recruit a faculty director who could lead and build this program from scratch. Fortunately for us she knew Bob and his great work at Microsoft. He had already served as an Adjunct Professor at the University of Washington School of law teaching Legal Protection for Software. By the way what better professor for Legal Protection for Software than the Associate General Counsel at Microsoft? And fortunately for us, unfortunately for Microsoft, we persuaded Bob to come and join the University of Washington School of Law because of his incredible leadership and managerial skills. And he set out to create a blueprint for what IP LLM advanced intellectual property education in America has become. Again, balancing the theory with the practice, creating the “I.P. Core,” this boot camp of intellectual property courses which combines an intensive review of patent law, copyright law, trademark law, trade secret. And around that he built maybe 15 to 20 other advanced complementary intellectual property courses, hiring some of the best intellectual property lawyers in the country to teach as part-time lecturers here, as well as many of our own faculty to teach some of these courses. It's really been an incredible success from the initial days; I mentioned back 10 or 15 years ago, there were 10 programs across United States and now there are something like 40 programs across the United States -- many of which have modeled their programs on our own. We graduate maybe 30 or 35 new IP LLM students per year -- over 300 graduates from this program in the last decade. What an incredible success involving many faculty members. I mentioned Toshiko, but also Signe Naeve, Jane Winn, Anita Ramasastry, Sean O'Connor (who is the director of the Entrepreneurial Law Clinic), Zahr Said, and many, many more.
I want to speak briefly about a quote that Signe Naeve gave me about her experience with Bob, not just working with him as a teacher in the intellectual property Law program, but she was also a student. And she said to me, "Don't be fooled by Bob's goofiness. He is truly a brilliant man. Only a brilliant person could take concepts that are complex in nature and make them seem so simple. That is Bob's talent, that and moot court and teaching basketball." She also added that Bob's favorite thing to say is, "there is no better time and there's no better place to study intellectual property". And she is right about that. But the reason she is right about that is because Bob made it so. His leadership made it so.
And his transformative work on our intellectual property program has also manifested itself in leading scholarship. In addition to all of the articles that I previously mentioned, in 2011 he published, “Towards a Better Model for Educating Future Leaders in Intellectual Property Law.” Again, looking at all of the challenges in IP education, all of the opportunities and the successes that our program has created. And I'll tell you that many others around the country operating similar programs have been threatened. Others have simply copied many of Bob's great ideas. They say that imitation is the sincerest form of flattery. And at the core of all of it is his critical analysis of what intellectual property education should be like. He has transformed the University of Washington School of Law into a leading institutional thinker on that account. Again, bringing together practical and theoretical learning.
My last main theme is that of leadership. Obviously I have already been discussing leadership throughout -- with respect to the scholarly impact of his articles and his work on building our intellectual property program and the Law, Technology and Arts Group. But it is worth addressing the notion of leadership more directly as well. He is what I like to call a quiet leader. He is not the Dean. He is not the Associate Dean. He leads under the radar. He leads by example. In addition to his role in building the IP program, he served as Faculty Advisor to the Washington Law Review. He is still doing that. He is serving as Faculty Advisor to the Washington Journal of Law, Technology and Arts (the former Shidler Journal). In that capacity he has convened all of the editor-in-chiefs of all of our journals to come together to help facilitate collaboration between all of our journals. You'll note the quote in your brochure from Katherine Kirklan, former Washington Law Review Editor-in-Chief, who describes Bob as, "The Zen Master of Leadership." And I thought about this quote. It's incredibly accurate because he is this quiet, modest, under-the-radar leader. He doesn't try to impose his will. He doesn't try to solve your problems for you. He listens to all of the interest groups and all the folks involved. He understands their concerns. He helps facilitate them in reaching solutions and that is what real leadership is all about. It's not about telling people, “this is what you need to do.” It's about understanding concerns, leading by example, leading quietly and helping people come up with mutually beneficial resolutions to problems.
He has also chaired multiple committees here at the law school and the university more broadly. Right now he is chairing a committee that includes a strategic overview of all of our law journals. I sit on this committee with him. I marvel at his leadership on this committee as well because again, he is balancing interest groups that have very deeply held stakes and interests in the process and want specific outcomes. He listens carefully, he leads quietly, he doesn't impose solutions. He helps people figure out solutions that will lead us all forward.
All of this by the way again is at the University, either at the law school or at the University level. He is also an absolutely incredible leader outside the University of Washington. In fact, his leadership there is even more impressive. I would imagine many of you, until you read the bio today, may not have known about a lot of his leadership outside of the University. He was on the Board of Regents at Pacific Lutheran University for 10 years. He chaired the Board of Regents at Pacific Lutheran University from 2006 to 2010, receiving the President's Medal from the University in 2010 in recognition of his leadership and service. He also earned the Distinguished Alumni award in 2012 from Pacific Lutheran University. He has served on the Board of Directors of no less than three major organizations, including Independent Colleges of Washington, Campfire USA, and also The Rural Development Institute (now LANDESA). Beyond that, he has coached his kids’ basketball teams, soccer teams, softball teams. Now his daughter’s high school debate team. That is no easy task. I can tell you from some experience of my own. But it is this incredible community engagement, all centered around giving back, that shows what a leader he is by example. His leadership, his thoughtfulness, and his modesty have made him such a success at his teaching and scholarship and his service to this institution and to the broader community. And really it makes him a model for our students, for staff, and for our faculty about what being a leader is all about.
I am very proud to have Bob Gomulkiewicz as a colleague. I am vicariously thrilled for him to receive this award today recognizing his extraordinary impact on this institution. Please join me in congratulating Bob Gomulkiewicz as our newest Washington Law Foundation Professor of Law.

Dean Kellye Testy

Prof. Calandrillo that was a lovely introduction. I only have to say it's a funny thought to wonder if anyone in this room of law faculty had ever types their own name into Google. I am sure they haven't I'm sure they haven't. Prof. Gomulkiewicz please join me. It is a great honor today to bestow the University of Washington Foundation professor of law metal on you and to congratulate you on achieving this honor. I want to endorse really everything that Steve said. I think he did a wonderful job of explaining the kind of success that Prof. Gomulkiewicz has enjoyed. For me as you all know it is important that our faculty do have a commitment to excellence not only in scholarship but also in teaching and also in service to this institution so that we are constantly making the false coal even greater than it already is. And so it's really that combination of what you have achieved and the admiration that we have for you in making the transition from practice into the Academy and of all those fronts so very, very well. But I also want to note today that my recognition of you in this role is not just about what you have already achieved it's about my belief in the future. And this area of law and technology is one that this law school should be one of the world's leaders in and I think we have been very strong. We are getting stronger every day in that area and it's a very very important commitment in our school to continue that trajectory of excellence. And it's my absolute belief that you will help us achieve that as we move forward. So Prof. Gomulkiewicz it's my honor to bestow the UW Foundation professor of law award upon you today.

Bob Gomulkiewicz

Well when Dean testy told me about this professorship I was very excited and so I went and told my family and friends that I had received a professorship. And they could sense the excitement in my voice but they said what is it all about? They were confused. What is all about? Well my family and friends thank you for coming. Hopefully this ceremony will tell you a little bit about what it's all about. But let me just say simply what it's all about to me. That is that it is the highest honor that I believe a professor can receive and so I am deeply honored and very grateful to Dean testy for honoring me with this award. I am particularly honored because of Steve alluded to I have taken you might say the road less traveled to get here. I spent 15 years practicing law before I came here. But it's because I came by a different path that I come here every day deeply committed to teaching both the deep theory and the deep practice of law. And so that is what keeps me going. That is how I want to be is a professor. I want that to be central to my teaching and scholarship at this law school and it resonates so well with the mission that Dean testy has set out for our law school which is educating leaders for the global common good.
I would like to thank a few people before I get into my remarks. First I would like to thank Steve calendar low for that wonderful introduction. Steve has been one of the people that I have tried to model myself after as a professor. In fact not only that I rely on Steve to be somebody who reviews my scholarship and normally I give my scholarship to lots of people to read and it never comes back. I just assume that people are deeply touched by it. They are deeply moved by it and so they just put on their coffee table. But Steve usually within a few days returns a draft to me completely marked up with blue pen. And if you know Steve there are a lot of exclamation points at different points and things underlined. And so as I was thinking about my scholarship when Steve and I were talking about it I think Steve has probably read nearly all 19 of those articles well at least half of them and I am really grateful for him as a colleague both for the example that he sets but also how he has been personally helpful to me as a colleague. I would also like to thank another one of my colleagues and that is Toshiko Takenaka. As Steve mentioned I wouldn't be here but for Toshiko Takenaka. I received a phone call literally out of the blue one day where Toshiko first said would you like to go to lunch to talk about and IP LLM program? Yeah everyone should be great. Then she called me back and said would you go to lunch and discuss who would be the director of that IP LLM program? Will that sounds like an even more interesting lunch. Then a third phone call the day of the lunch would it be all right if the associate Dean Pat Cussler came along to the lunch? Well that would be fine to I'd love to meet Pat. And from that simple phone call, those simple three phone calls, started a process in which I was able to come here and join this faculty of a law school that I love so much. My journey here as part of the IP program has been particularly rich because of some of the staff I work with every day: Sidney Navy and Jennifer Snyder I see sitting back there and Toshiko Takenaka they have been the core group of people and IP that I have worked with since I've been here and I'm grateful they are here today and I would just like to take this opportunity to thank them for being such amazing colleagues.
I would also like to thank the Washington Law Foundation. Kellye has already done that. Steve has already done that. I would like to do that as well. The contributions they make to us faculty pay off in real dividends. They enable us to do more scholarship, to do better scholarship and to work with students on that scholarship so it really enables us to bring students into the scholarly process as well so I just want to say thanks again for that.
I want to thank my family whom is here supporting me and in fact I have to confess that they also have to endure a ritual that I started. Whenever I publish an article at dinner that night I read the introductory paragraph. I do, I really do. And they endure that. Maybe even like that but they endure that. And so I want to thank them for that.
I want to thank in particular my wife Andrea Leersen who is here. And many of you know that I met Andrea at this law school and in fact I met Andrea on the Washington law review. And when I told the Washington law review students this they said wow we knew the Washington law review was a great networking opportunity but who knew that you could find a spouse there. And so I think that has been a transforming idea for some of those law review students so thank you so much for coming and supporting me.
I would also like to recognize my daughter Kate Gomulkiewicz. She is the debater that Steve was referring to. She is a senior in high school at the bear Creek school. She is currently trying to decide whether to be a physician or lawyer. Do the right thing. I believe that Dean testy said that she will be speaking to you at the reception following. My other daughter Abby is at St. Andrews University this year so unfortunately she couldn't be here this here. She is pursuing a joint degree program at William and Mary and St. Andrews so I just want to say hi to Abby if this is streaming over the Internet.
Okay a few other FAQs before I talk about fostering the business of innovation. As Steve mentioned I come from lots of different communities so I just want to say thanks to those different communities for people coming here and supporting me. I want to start off by acknowledging my colleagues from Scheidler McCrimmon Gates then Preston Gates and Ellis and now K and L Gates. But I have to start with the name of the law firm when I started and it was Scheidler McBroom and dates. And the reason that I am mentioning that is every day when I walk into this law school I walk by a picture of Roger Scheidler and I walk by a picture of Bill Gates. It just doesn't get any better than that ladies and gentlemen in terms of thinking about the people who have inspired you and really that was an amazing law firm. It is one of those law firms that still does together every year and around the Christmas season and just enjoys one another because it was such a collegiate place to be. And I really thought it was such a privilege to be a member of that law firm. And while I was at that law firm I was particularly privileged to be one of those young associates that Bill Gates Senior took an interest in. And he had this tradition of taking associates out to the rainier club just to chat. Just to get to know us and just to teach us what it was like to be a professional and to be a lawyer. And so I am grateful to that firm and I am grateful to Bill for being one of my mentors.
I would also like to add knowledge my colleagues from Microsoft. Several of you are here. It really those 10 years were 20 of the best years of my life. I am again Kevin Frank and I think Kevin and Andy, you know what I mean when I say that. Again, working at Microsoft was a wonderful experience. It was an intense experience but it was one of those experiences that was transformational for me and I think all of those friends and colleagues for being here today.
I would also like to thank my former teachers at this law school. It is kind of a mind-bending experience to become a faculty member at a place where you have been a student. And you just wonder what it's going to be like the first day when you become a colleague of Phil Troutman and Roy Prosterman, Dick Kummert, Ron Hjorth and when I came here it was so natural. It was so comfortable. They just embraced me as a colleague and I am so grateful to them for doing that because they could of made me feel like a little child, as law students sometimes feel when we are law students. And so I am so grateful to those colleagues. And I especially want to hold up the name today of Dick Kummert who passed away recently but Dick Kummert was the you law review advisor when I was a student here and was truly one of my best mentors and influential people in my life.
While I am on the subject of professors I do have to recognize one other professor who is not from the University of Washington school of Law but really is the person who inspired me to become an academic. And that is Phil Norquist who is here from Pacific Lutheran University. He was my favorite history professor and really I wanted to be a history professor like Prof. Norquist but even though this is the roadless traveled that was a road I just was not even prepared to travel to become a PhD in history. But I still was inspired by Prof. Norquist and I am so grateful that he is here today with his wife Helen.
We are almost on the think used a we can get to the talk. But I just the same conclusion that as it was thinking about all these people and how they have been influential to me I was reminded of that great quote from Isaac Newton about how if we have seen further it is because we have stood on the shoulders of giants and I hope you don't get tired of that quote. I like that quote. I think it's very inspirational quote. But as I was reflecting on it and as I was reflecting on the mission of this law school which is really to send us out to serve I really thought that there is another variation of `but I would like to start today. And that is something like this if I had served better it is because I stood shoulder to shoulder with giants and giants like Bill Gates giants like Roy Prosterman, giants like Lauren Anderson who is here today who is the 20 year president at Pacific Lutheran University and giants like Dick Kummert who I wish was here today and who I remember as a talk.
Speaking of talks let's talk about the business of innovation. That's your cue Len. Lenny is our technical guy and he is the one who is making this all happen.
I think it's best to start by saying that we live in an information economy and it's really an economy that is no longer dominated by that production of hard goods. But it is really dominated by the creation of ideas and information. And when we look at that economy we can see that intellectual property is really critical to fostering creativity and innovation in the innovation economy. We know this because US lawmakers have really been very focused on passing and amending intellectual property laws to ensure that we are fostering creativity and innovation. Lately for example we you have seen an amendment to a patent law known as the America invents act. And you have seen multiple attempts to try to amend the copyright law to try to keep it up with the digital economy.
It is also important to know that this focus on intellectual property law is not limited to the United States. Economic powerhouses such as Germany and Japan have put intellectual property at the center of their industrial policy. And recently China has joined that club as China has become a net IP producing nation. Last summer I had the privilege to travel to China with Prof. Takenaka and some of my other colleagues to put on weeklong training session for the IP tribunal of these Chinese supreme People's Court. I got to see that transformation first-hand because I spend time with those Chinese judges. But I didn't have to go to China to see the international impact of intellectual property. All I have to do is walk around here in the halls of Gates Hall. We have IP lawyers from around the world studying here at the University school of Law and I have come to believe and I would like to say that the University of Washington school of Law has really become the gathering place for the next generation of leaders in intellectual property law.
But despite this critical importance of intellectual property law and fostering innovation there is more to the story. And so today if I can borrow from the late broadcaster Paul Harvey I want to give you the rest of the story. And the rest of the story is that creating intellectual property is great but it is not very useful or very valuable unless you do something with it. Getting a patent feels good but it's better if somebody can pay you to use that patent. And having a copyright in a song is great but it's even better if you enable people to sing it and share it. And for those of you who like to read books it's even better if you can write a book and then enable people to read the book.
And the best legal tool for allowing people to do things with intellectual property is contract law. Contract law puts intellectual property into action. Intellectual property law is important, no question about it. But it's contract law, the subject that every 1l takes and unfortunately I have found every 2L and 3L forgets. That is the hidden hero in fostering the business of innovation.
Using contracts with intellectual property something that we call licensing and licensing simply means giving somebody permission to do something with your intellectual property. When I was doing research on the history of intellectual property licensing when I was visiting at Oxford I discovered that intellectual property licensing is as old as intellectual property itself. Intellectual property licensing is mentioned in the oldest intellectual property law that we know about, the 1474 Venetian patent act. So licensing is old but what is new and significant is that licensing has really become the predominant transaction model and this information economy.
So why is that so? And that is so because licensing plays a critical role in two types of innovation: technological innovation and business model innovation. Technological innovation refers to the use of licenses to build inventive and creative products. Licensing enables the sharing and collaboration that people need to do to build these information products. Let's just take Microsoft Windows in this an example. Microsoft did not write every line of code in Windows. Microsoft Windows is written by hundreds of individuals and firms. And the legal tool that Microsoft uses to bring all of these contributions together is a license. Competitors to Windows such as Linux based operating systems are built the same way. And so just as Bill Gates the third did not write every line of code in Windows, Linus Torvels did not write every line of code in Linux either. Licensing is the legal tool that both of them used to build their products with these third-party contributions.
Licensing also plays a critical role in the innovative business models that companies use to take their products to market. Companies distribute software these days and a multitude of ways: by download, by upload, by e-mail, by bulletin board, by Facebook, by CD-ROM, by flash drive, by hard drive. And licenses on top of that also allow end-users to do innovative things with the software they get. Licenses allow software companies to provide different packages of rights to end-users at different price points. And so I know you hate mass-market licenses. They annoy you. But you like the things that they enable. You like free mobile phone apps. You like cheap home and academic edition software. You like clipart that you can use your presentations. You like the android operating system. You like the power of shopping on Amazon.com. And you like sending Google mail over the Internet. And all of these things are brought to you courtesy of end-user licensing.
Well that's a happy story. But IP scholars have concerns. They have serious concerns. And one of their concerns is that intellectual property gives software companies too much control. IP scholars taking darker more skeptical view of licensing and if you think that they are worried about intellectual property they are really concerned about combining intellectual property with contracts because they are concerned that gives intellectual property holders far too much control that combination of IP plus contract.
I wrote an article about six years ago now and I found over 100 articles criticizing the use of end-user licenses. And just a handful praising them all of which are written by me. The concern of the IP scholars that IP holders are going to use contracts and IP to stifle innovation in small firms and reduce consumer choice and prices. So it's complicated. It really is complicated.
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How do we uphold the value of contracts and at the same time maintain balance and intellectual property law? The scholars have a point. And it's fair to say about what we are trying to do is get the best out of licensing but not have the worst out of licensing. We want parties to be able to freely shaped their transactions, to allocate risk and to have certainty about what their contracts are quality same time not unduly detracting from follow on inventors and stifling creativity through too much control. So it's, get it. But fortunately we have help. We have boundaries that try to keep this combination in check. The law has an array of tools to keep licenses within their productive boundaries. For example we have this equitable doctrine called intellectual property misuse. We have antitrust law which unfortunately my former employer found can be a very effective tool to keep abusive licensing practices in check. We have doctrines like unconscionability and construing contracts against the drafter. We have all these tools and I argued in my early scholarship that these boundaries would be sufficient to allow the software industry and software consumers to enjoy the benefits of licensing without the significant negative consequences.
Well I am happy to say that despite the loud chorus of scholarly criticism the courts have come out in the same place that I have. And so looking at all of the good points and bad points of licensing courts starting with the Pro CD case in 1996 and coming up to this more recent case from the ninth circuit the burner case have pretty much uphold mass-market licensing of least as it doesn't go over the boundaries that I talked about before. So if you want to stand back and kind of look at the big picture I think it is fair to say that in the 1990s scholars and others really had this fear that dominant firms would use licensing to squeeze out innovative new firms. But now we have this interesting reality in 2000 which is the innovative new firms and actually some old firms are using licensing to unseat the firms of the 1990s.
And now I'm going to turn to the best example of that because the best example of how licensing has rocked and shocked the established order in the software industry is something that we call open-source licensing. Open-source licensing is licensing for revolutionaries. Open-source licensing is about licensing for revolutionaries. It uses licenses to give freedom to software users. It uses licensing to actually give away all of the exclusive rights of copyright. The most important software license was written by this fine gentleman here Richard Stallman. He wrote the slices called the general public license. He is the founder of the free software Foundation. He is a master programmer. He was a MacArthur genius. He is a firebrand. But actually he is the most famous for being a drafter of software licenses. He drafted this general public license to give away the exclusive rights of copyright to reverse the copyright with a license that he called the copyleft license. Very clever right?
So what do we get with open source? Let's drill down into that a little bit. I think the simplest way to summarize it is that you get four freedoms when you get open-source software. You get the freedom to view the code in source code form. That's the form that programmers can actually work with. See negative quick computer science lesson. View the source code, run the software for any purpose, modify the software in any way, and then distribute the software and those modifications: that's what open source license gives you.
Well Richard Stallman is not the only one that loves licenses. Bill Gates and Linus Torvels love licenses to as I already mentioned. So something good must be going on here. Okay so let's spend a couple of minutes talking about a couple of key open source licenses. Now that you have been persuaded so far that these open-source licenses are great. Everybody likes free stuff. Everybody likes things that are open. But whenever you hear free everybody should be getting a little bit nervous. Everybody should be saying we know there's no such thing as a free lunch what's the catch? And well the catch with open source licenses as this: that the open-source programmers want something back in return. They are going to give you the copy left but they want something back in return. There are two important types of givebacks in open-source licenses and so I want to talk about those two different types of givebacks.
One giveback is attribution which just simply means that if you use the programmers code they want to to give them credit. So I'm going to call that particular giveback and attribution license. I license that if I give you my software, you agree to give me credit for using that software and attribution license. The other kind of license emphasizes the sharing of modifications to the software. So if you make a derivative of somebody's software you must share those derivatives with everyone else forever. I'm going to call this kind of license with that kind of giveback a share-alike license. And Richard Stallman's general public license is that kind of share-alike license.
So open-source licenses is interesting but why am I talking about it today other than to give you general education? Well let me conclude my talk by showing you how open-source licensing actually provides an incredibly useful lens through which to look at difficult licensing law issues. Open source licensing lens really keeps us honest to scholars. It forces us to both look at the value contracts but at the same time value maintaining balance in intellectual property law. So let's use that lens.
So we're going to use that open-source lens to understand an important current issue in software licensing law. And the issue is this plan is a particular provision in the license agreement a contractual covenant and when is it a license condition? So a covenant is a straight up promise, "I promise to do X." A license condition rants rights but has a proviso, "I grant you a license provided you do X". Okay those of you who have been following me so far you are about ready to take a mental break. I know it. You are about ready to take a mental break from now until the reception. But let me give you three reasons to stay with me just a few more minutes. Don't take a mental break just yet. Here are three reasons to stay with me. First as we probe and explore this covenant condition distinction we get to illustrate three important things. Thing one: it shows us the power of contract to amplify the control that intellectual property law provides which takes us to the outer boundary of acceptable licensing practices. So we are now on a licensing law throat ride. Is that enough to keep you awake? As if that wasn't enough number two: probing this distinction provides an excellent demonstration of how the deep knowledge of legal doctrine is directly relevant and incredibly useful in the actual practice of law. And if that wasn't enough, three: the open-source lens can help us analyze and solve challenging licensing law issues. So I'm going to help you seek all of that hopefully in five or 10 min.
So what about this distinction between covenants and conditions? Well covenant/condition distinction is a distinction with a big difference, huge difference because it affects the remedies that a licensor for the breach of license. If you just breach of contract the normal measure of damages is monetary damages. But if you breach a license condition you don't just have a breach of contract you have an infringement of copyright law which opens up an incredibly robust set of remedies. Most important of which is injunctive relief. Injunctive relief is an incredibly powerful remedy and people who have licenses would love to be able to take advantage of that remedy. And in the context of open source licenses injunctive relief is actually the only remedy that matters. It's the only remedy that matters because most of the time no money is exchanged in an open-source license. Open-source licensing depends upon the ability to enforce that attribution requirement or that share-alike requirement with injunctive relief. In other words, open-source licenses absolutely depend upon the ability to create a license condition enforceable by injunctive relief.
Alright I didn't just make that up. There are several recent cases that start to get into this issue beginning with this case in 2008 from the Federal Circuit Jacobsen versus Server which was the first case to really enforce open-source licenses. It mentioned the condition/covenant issue but it didn't take had on. But just a couple of years ago on the Ninth Circuit the MDY industries case didn't take on that issue head on and so we're going to now look at that case.
But before we do I want to say that this covenant versus condition question is particularly challenging because of the power wielded by experienced license drafters. So this is a tool that can be used by experienced license drafters like the students in my intellectual property licensing class I am giving them this power. Now a skillful license drafter can turn almost any covenant into a license condition as illustrated by this slide and all of the slides that you're going to see from here on out. Let me just put it a different way in a way that should raise a red flag for you. This puts a lot of power in the hands of sophisticated parties who can hire expensive lawyers. That should raise a red flag for you. In fact it raised a red flag for the Ninth Circuit Court of Appeals in the MDY industries case. In that case blizzard entertainment's lawyers turned a requirement about playing its World of Warcraft's game by the rules. In the license it wanted the users to agree to play by the rules and it did it by turning back condition into a license condition. You may play the game provided you play by the rules.
Well as get to the court also thought about whether you could turn the payment of money into a license condition. It discussed that question because that question comes up and loss of license agreements. In other words, you may copy the game provided you pay hundred dollars per copy. It turned what could just be a promise of hundred dollars into a license condition. Any student in my class can do this.
Now let's move to the open-source context. In Jacobsen versus concert as I mentioned raised this issue but did not address the issue. And the issue is can attribution be a condition? Another words you may copy the software provided you put my copyright notice on all copies. But does that work? And then while we're at it we might as well think about whether you can turn share-alike into a condition as well? We have to ask that question. You may modify the software provided you always share your modifications of everybody. Okay hang in there two more slides.
So the MDY court wanted to create a boundary that would balance the great things about contract with keeping IP in check and in balance. And so the way it decided to do that was by creating a test: A test for when you can decide when something is a condition and when something is a covenant. And the reason I am sympathetic to that approach is the first time I tried to write an article on the subject that's exactly what I thought I was going to create and then I realized it's impossible to do it. But I am just a scholar. They are the courts. They get to do it so now it's the law.
But let's work through these examples and see how this test really works. In the test by the way the way that the District Court, the trial court is supposed to decide whether something is a covenant or condition is they are supposed to see how much grounding it hasn't copyright and whether there is a nexus with copyright. Clear? Okay so just like we do class, let's run through four hypotheticals which use that FairPlay condition from the MDY case. I put that in red because there is no grounding in copyright. There is no grounding in copyright just to tell somebody to follow the rules of the game. And the MDY court said that can't be a license condition. That's just a covenant. In other words you can't get an injunction for violating that from the agreement. So that's in red. As I said the court also talked about royalties in dicta and you might be thinking to yourself well there is no grounding in copyright for the payment of money. Is that what you're thinking? That's what I was thinking. But you know what the Ninth Circuit said well because the payment of money is so prevalent in licenses we are going to create a special exception. So you can make the payment of royalties into a condition. In other words you can make it a term enforceable by injunctive relief. So I put that in green. You can turn that into a condition if you are clever enough to do so.
Okay well now let's think about attribution. Let's think about those open-source licenses. What about attribution? Well attribution is not one of the exclusive rights of the copyright holder at least not in this country. Attribution is what copyright scholars call a moral right. But the US doesn't recognize moral rights well except and only limited way. So in France, France recognizes moral rights but the US doesn't really recognize moral rights. So I put this condition in the gray area. It's moderately related to copyright but not exactly. And what about share-alike? The thing that really makes Richard Stallman's license work what about that? Well I promised to share is just a promise to do something with no particular grounding in copyright. Now notice copyright students that it is a great example of a nonmonetary type of consideration. In fact from my experience with the software industry many, many licenses, I might even say most licenses are licenses where money is not exchanged, where people are trading promises to do different things. And so one of the interesting things about this MDY test is that it allows monetary consideration to become a condition but it doesn't allow non-monetary consideration to act as a condition. So I unfortunately had to put share-alike in the red category.
Okay last slide. The problem with the MDY approach is it asks trial courts to apply an amorphous test. And I think that the trial courts, the district courts are going to find this test difficult and frustrating to apply. And the reason I know this is I have watched them try to apply different tests in patent law by construing claims and trying to figure out things about novelty. And one of the big complaints you hear from trial courts, district courts is how difficult it is to draw those lines and they are so frustrated because they're constantly overturned by the Federal Circuit. So I know that the district courts find these types of tests very frustrating to apply. But I have a better idea. I think there is a different approach that we can take.
I think the better approach is to focus on remedies. Remedies: the class in law school that none of you ever took, but it turns out it's just as important as contract law. Here is the big point: that the only time that the covenant and condition distinction really matters is when you ask for injunctive relief. That's where the rubber meets the road. Otherwise it's just an interesting academic discussion. But the only time it really matters to the parties is when somebody is seeking injunctive relief. And that's really helpful for us in understanding what to do here because as much as trial courts are not particularly good at applying amorphous tests they are good at looking at all of the facts and circumstances including grounding in copyright and nexus. But not just grounding in copyright and nexus all of the other factors that would go into a license-they are very good at looking at the totality of the circumstances and using their wise judgment and deciding whether to grant injunctive relief or not. And so a multi-factor remedies based approach really parlays into the strengths of trial courts and allows them to better respect freedom and uncertainty of contract as well as respecting other important values in copyright law such as authorial control.
Okay last thing, so this diagram I think in this diagram I am trying to show a trial court how they would waive those various factors and as this chart illustrates a remedies approach I think works better in two important scenarios. Scenario number one is commercial licenses were too sophisticated parties have decided to draft a license that requires a condition. And those sophisticated parties fully know and fully intend for that contract to be enforced with injunctions. And so this approach allows that contract to be enforced. But I think more interesting and going back to my point about looking things through the open-source lens is that with this approach both attribution share-alike licenses I think would be enforced because the way the contract is drafted indicates condition. There is at least a moderate nexus to copyright law on the attribution license and most importantly these open-source licenses promote copyright goals of distribution of works and ideas.
Alright well thanks for allowing me to explore these ideas about how we can foster the business of innovation by using contracts and remedies.

Dean Kellye Testy

I want to thank Prof. Gomulkiewicz so much for that lecture. It's a wonderful example and is a contracts teacher myself of course it all does come back to contract law. But it's also a particularly good example I think that one of the challenges of contract law is that it always applies both in the consumer context and also in the very sophisticated commercial context and this is a wonderful example of where sometimes that conflict ensues from that dichotomy. I want to ask you to please join me again in recognizing Bob as the UW Foundation professor of law today. Congratulations Bob. And we look very much forward to your continued leadership in the area of law and technology here. And I want to thank all of you for being here. And so many of you in this room today have been such an important part of our history and our strength in this area. I also invite you to continue to be with us to be part of our exciting future in that regard too. We have a reception down the hall in the Perkins Cooie room. It's in room 115. You just exit out this room to the left and take the long haul down to your right and you will see a reception there where you can visit further with Prof. Gomulkiewicz and also enjoy each other's company. So have a very good evening and thank you for being here.
And we look very much forward to your continued leadership in the area of law and technology here. And I want to thank all of you for being here. And so many of you in this room today have been such an important part of our history and our strength in this area. I also invite you to continue to be with us to be part of our exciting future in that regard too. We have a reception down the hall in the Perkins Coie room. It's in room 115. You just exit out this room to the left and take the long haul down to your right and you will see a reception there where you can visit further with Prof. Gomulkiewicz and also enjoy each other's company. So have a very good evening and thank you for being here.

Last updated 3/14/2013