In this episode, weâre joined by tech Lawyer Luis Villa to explore the question, who owns code? The company, the engineer, the team? What about when youâre using AI, Machine learning, GitHub Copilot⌠is that still your code?
Luis Villa: Well, itâs been a long time since I wrote anything approaching useful code⌠But I have been involved â I had an interviewer ask me while I was interviewing for my first law school job out of law school, law firm job out of law school, and they said, âWell, you seem to really like tech. Why did you leave tech?â and I said, âLook, Iâm not leaving tech. I am only interviewing with law firms that are very much tech-forward, tech-first kind of law firms.â So the goal was never to leave tech. The goal was â I was at a startup, open source⌠Back in the first year of Linux desktop, I was at a small startup, we got acquired; during that acquisition process I worked with the attorneys, and I was arrogant, I was young, I was âOh, I can do a better job than these people.â So I decided after a little bit of experimenting, and I took like a night school law class that I enjoyed, a couple of night school law classes that I enjoyed, and so I decided to go to law school. But the goal was always, all along, to continue to focus on tech, and specifically very much to focus on open law, because there seemed to me at the time to be a body of lawyers who were sophisticated about technology, but they came at it very much from a patent-first, control-first kind of mindset. And that was something that was already starting to break down at the time⌠So I was in law school 2006-2009, and it was beginning to be an understanding amongst legal academics that open was a thing.
I had attended a conference of legal academics where Creative Commons was announced; that was 2001. So there were some legal academics who got it. And in fact, I pretty only applied to law schools that had at least one faculty member who had written something that indicated that they got it in the slightest amount. So that meant applications were easier, because there wasnât that many schools to apply to. And I think that has worked out well. Itâs been a good career, itâs been a fun career, because I very much â the point was not that âOh, I can make my piles of money and work 3,000 hours a year, or whatever.â It was, âI have friends who are open lawyers, who deserve better lawyering than the lawyering that they were getting at the time.â
[06:19] I think thatâs been that sense of, âHey, Iâm doing this to help open people get better lawyeringâ has served me well as a sort of motto and mission, and has led to a lot of fun outcomes⌠Because open people are doing a lot of fun projects, have been doing a lot of fun projects, and that hasnât changed, and I certainly donât think itâs going to change anytime soon.
But a lot of it does come back to this question of âWho owns the thing?â And I admit, I have enough lawyer brainworms at this point that my immediate thought goes to âOkay, well, the contract of theââ and then one of you during the top prep said, âWell, what about like team ownership?â and I was âOh, right.â We talk in law school about this analogy that ownership is â for reasons I donât remember, or maybe never knew, we talk about ownership being a bundle of sticks. And the idea is that we sort of â we talk about it as if itâs like one big trunk. But itâs actually a lot of different small things. And ownership in the code world is very fragmented, because thereâs this sense of well, okay, for almost all of you, if youâre working for a company, at the end of the day your company owns the code that you are writing, at least on the company time, unless youâre very careful to not do it on company time, not do it on company hardware, and to do it in areas that are unrelated to what the company is working on. If youâre doing those things, then you keep it, but otherwise, as a general rule of thumb, the company owns it.
So thatâs like the sort of lawyer brain answer, like âWell, yeah, okay, weâre done here. Itâs been a nice podcast. Glad to talk to you all.â But thereâs very much of, course, all these fractal little senses of âWell, okay, but what does it mean when the team â team versus individual ownership?â Because in a lawyerly sense, the company is the one who can sell it; but who has responsibility for it within the company? Like, thatâs not a legal question. Thatâs a team norms, team behaviors, kind of question.
And thereâs also these questions of what exactly is it that you own? Because I spent several years of my career â I am what we call a transactional lawyer. Basically, I do contracts. If the contract goes wrong, for some reason, that is somebody elseâs problem to argue about it in court. And so Iâve only ever been to court for work once, which was a little case called Oracle v. Google, and you might have heard of that one⌠And the question at some level was about who owns, or can anyone own the idea of an API? And thatâs probably not something youâre thinking about too much in your day to day, right? And your corporate lawyers probably arenât most of the time, either. Theyâre not thinking about who owns the API. Theyâre just thinking about this file, or this binary that weâre distributing, or these days, often, this SaaS that weâre putting out over the internet. Your customers never actually see code, except for whateverâs JavaScripted, or WASMed, or whatever. And of course, thatâs a whole other thing. Anyway, itâs just fractal, and we could talk about it for way more than an hour, but sort of my 10,000-foot overview is that thereâs both this ownership in the legal sense, but very much also in the code and culture sense, and we can talk about any or all of those, including to some extent how Go is different. its packaging system is one of those things that occasionally makes lawyers tear their hairs out a little bit, because itâs not something â so many of our lawyers⌠Not our lawyers. Well, our lawyers too, but our licenses predate Go; they predate some modern language distribution practices, and sometimes that shows up. We wrote technology-specific things for like C or C++ into our licenses, and then somebody says, âWell, how does that work in the case of Go?â and the answer is, âI have no idea.â
[10:10] I guess those of you listening to this as a podcast canât see the face I just made⌠So just assume, like, perplexed; search Giffy for your favorite perplexed GIF, and that was me just now. So yeah, so where do you all want to start with that? [laughs]