The Stack Overflow Podcast

A history of open-source licensing from a lawyer who helped blaze the trail

Episode Summary

The home team is joined by Heather Meeker, a specialist with a deep history in the world of open-source software licensing. Heather tells the home team how the open-source landscape has changed since the 1990s, how access to air conditioning helped nudge her into a computing career, and how, when her dad worked in a computer lab in the 1960s, his work was considered so esoteric that she used to tell people he was a spy. (Can we bring that back?)

Episode Notes

Heather is a General Partner at OSS Capital, which provides VC backing to seed-stage COSS (commercial open source) startups. Her law practice focuses on intellectual property and open-source licensing, and she serves on the IEEE-ISTO Board of Directors.

Connect with Heather on LinkedIn or explore her work on her website.

Today’s Lifeboat badge goes to user keshlam for their answer to the question Why do we need abstract classes in Java?.

Episode Transcription

[intro music plays]

Ben Popper Hello, everybody. Welcome back to the Stack Overflow Podcast, a place to talk all things software and technology. I am Ben Popper, Director of Content here at Stack Overflow, joined as I often am by my wonderful colleagues and collaborators, Cassidy Williams and Ceora Ford. Hey, y'all 

Ceora Ford Hi!

Cassidy Williams Hello! 

BP So it's a bit of a heat wave. We're going to try to keep things cool today. We have a great guest, Heather Meeker from OSS Capital. And Cassidy, full disclosure, you also work with OSS, right? 

CW Yeah! And I'm very excited to talk to Heather more deeply because she is incredibly legit and knows everything. I guess that's a slight exaggeration, but not really.

BP Right. Too legit to quit for sure. It's funny what a small world. We were just discussing I know some folks from DEV2 and OSS who also moved to my little section of the Hudson Valley, so part of the exodus from New York City. But anyway, we're very excited to chat all things open source. Heather, welcome to the Stack Overflow Podcast.

Heather Meeker Thank you. I'm happy to be here. 

BP So we usually ask folks to start us off by just giving us a quick flyover. What brought you into the world of software and technology? 

HM Well, I learned to program when I was eight. I learned more later– listen, but my first little program was when I was eight. My dad taught me, and this is a podcast so maybe people can or can't tell, but I'm no spring chicken so this was a long time ago. 1968 that would be. And my dad was actually working in a computer lab, which at the time was an extremely strange thing. In fact, it was so strange and people were so uninformed about what computers were that when people asked me what he did for a living I used to tell them that he was a spy because it was easier to explain than to say what he was doing which was actually pretty complicated. Anyway, so he kind of introduced me to it and I guess I was always kind of interested in logic and systematizing things. It’s just the kind of person I am. And then when I got into college I was going to summer school and it was really hot and the computer science lab had air conditioning so I took a couple of computer science classes. Now, I was at a liberal arts school and I don't even think it had a major in computer science and not a lot of schools did at the time, so I learned Fortran and I think SPSS, which was this old statistical program. So I thought that was really fun and interesting. And then when I got my first job there was a computer in the basement and I figured out where it was and talked the operator into letting me use it so that I could save myself effort doing my job which had really nothing to do with computers. Anyway, I was always interested in it and then shortly after that I got a job as a computer programmer. That was when we called ourselves computer programmers, I don't know if that's really what people call themselves anymore.

CW Less job titley, I think.

BP Yeah, I go to that for a synonym after I've written developer or software developer, but it's definitely not something you see in a job description. 

HM Yeah, exactly. But I worked writing application software for what at the time was called mini computers, which were something smaller than a mainframe, but they didn't really have desktop computers yet. And so I did some programming work for a while and then very stupidly probably, I decided there's no future in this job, I'm going to do something else. So I did some other things including work as a musician and going to law school. But then when I graduated from law school I was really interested in software and technology and so I decided to go into law practice doing software deals, and I've done that for nearly 30 years. And I got into open source in particular pretty early on, like in the late 1990s. And I was just fascinated by it and I was interested in software and I knew a little about software. I mean, everything I knew was completely outdated, so I had to kind of extrapolate. But I was very interested in it and it was great to help clients get their goals done in the software space. And then I joined OSS Capital a few years ago. It was a little I guess unexpected for me to go into venture capital because I'm not really a finance person, but by that time I had been working with so many clients on business strategy around open source and it was kind of a natural move. So that got me where I am today. I still do a little programming kind of for fun. I'm very bad at it but sometimes it's fun. You go, “I really need to do this thing. Maybe I'll write a little program to do it.”

BP Sweet. What a great history. Thank you for sharing that. I have a couple little questions just because I want to get the history right. So your father, he was a spy, but maybe you could tell us what was he working on in the ‘70’s and what was the language that he was teaching you? Was it also Fortran or something else?

HM Oh, he taught me Basic first. He worked at kind of a think tank in the late ‘60’s and early ‘70’s and then he set up a computer based behavioral lab and I'm not really sure what exact languages he was using or anything. I mean, it certainly was old ones like maybe Fortran and Basic and things like that.

BP Right. And then just one other quick history question and I'll pass the mic to Cassidy and Ceora, but you mentioned you got into open source in the ‘90’s. What were the projects that were emerging then at the beginning of the open source world that you were involved in or hearing about that got you interested in this area?

HM Oh, well at the time of course everyone was interested in Linux. That was the granddaddy of them. And of course because it was under GPL, that was the license that nobody understood, so part of what I was doing was trying to help people understand it. And don't get me wrong, it's not like I really understood it. I was learning along with them. 

BP Sure. Somebody's got to interpret the law for the first time. Right? 

HM Yeah. And then many of the Apache projects were well underway at the time. If I can say one thing about GPL and figuring out what it means and everything is that lawyers don't really have any incentive to take chances. They're supposed to give conservative advice. And perhaps because I was like unsuited to be a lawyer, I was one of the ones who was willing to say, “Okay, this is what I think this means, and this is probably your best choice,” even though there was no law and almost nothing to go on. So not many people at the time were interested in kind of walking out on the wire in that way. I was more driven by what was interesting and what my clients needed, rightly or wrongly. 

BP That makes sense. Yeah, move fast and break things isn't legal advice, but it's certainly interesting advice. 

CW But it's fun!

BP It’s fun. 

CF One question I wanted to ask was, you've been in the open source space since the ‘90’s. How have you seen it grow, change, evolve from starting out with the Linux projects and the Apache projects and things like that? 

HM Well, that's a good question. At the beginning it was considered sort of the purview of hobbyists and a sort of group of people that most people outside that group found impenetrable. They just didn't understand what they were doing or why they were doing it or what these licenses meant. And then as we moved into the 2000’s it just took off like a rocket and all of a sudden everybody was using open source. When I started a lot of people were saying, “No, that's too dangerous. We can't use it. We don't understand it.” And then you fast forward to 10 years later, 15 years later, it's everywhere, which is an enormous sea change. And things don't usually happen that fast, a paradigm shift like that. So it was really interesting and exciting. 

CF So how did you navigate that increase in participation in the open source space?

HM Well, first of all I just kept getting a lot more questions about it. I mean, I was sitting at my desk working on software deals and the way that things work in organizations is if you know 10% more than the person at the next step, you're the expert. 

BP You're the subject matter expert.

HM Yeah. So people would keep asking me about things and then other people kept calling me about it and I kind of thought it would be a flavor of the month and it was kind of this interesting weird little thing that was happening. And then all of a sudden it was everywhere and so I just kept trying to learn more about it. And as I said, nobody really understood it so I was just thinking, “Okay, I have to do my best to tell my clients what to do because they need answers.” So that's kind of what happened during that process. 

BP Cassidy, you brought this up once before, but Heather, I'd be curious to hear it in this context. You're doing software deals, companies acquiring one another or working together, were there questions about, “Hey, if we use this open source project can we then sell our company? Or if we buy this company that's using open source, can we then patent the software?” Or were people more just curious about how should we approach this? Where was the intersection of law and business and open source that you worked on?

HM Yeah. So in the world of tech entrepreneurship the question is always, “Can we sell our business? Are we doing something that will cause us to have trouble selling our business?” By the way, tip for young lawyers, if you want clients to pay attention to what you say, what you say is, “If you do this, your stock will be worthless.” That line always is extremely effective. 

BP See, you were already thinking like a venture capitalist. Can I sell this business at some point down the road? 

HM But yeah, they were very concerned about risk and how things would look in investment transactions and acquisitions. They were concerned about how open source interacted with patents and trademarks too. And to sort out all that stuff you had to extrapolate from existing rules and figure it out. So yeah, they were asking all sorts of questions like that. But the basic question people were asking was, “I want to do this with the software. Can I do that? How do I do it without violating the license?” And that's what we spent a lot of our time on. 

BP Very cool. 

CF It's so interesting because this is a side of open source software that I never even considered. I never thought about the lawyer licensing side of things before so it's interesting to hear your insights around what that whole process looked like, and then starting from scratch since this was such a new thing, having to come up with that kind of stuff. I just never thought about that before. That's so cool. 

HM Well, I mean, it may sound like I'm tooting my own horn here, but unless there was somebody like me in a role like mine, like an outside counsel who was knowledgeable about intellectual property, to tell clients this is okay to do, it couldn't have gotten adopted in business. And so that was actually important to me to play that role, like to try to talk people off the ledge and say, “No, you can really use this stuff and it won't be catastrophic for your business.” Because at the time there was a lot of FUD out there about open source and various people were trying to say it was too dangerous to use and risky and stuff, which has actually turned out to be extremely wrong. But to explain why it was wrong, you had to construct a lot of logic and that was an important role. 

CW How have licenses evolved? You mentioned the GPL license but there's also the MIT license and all of these other standard ones that you see in repos all over the place.

HM Well the new ones are a little better than the old ones were. The old ones, you kind of wonder as a lawyer who came up with this stuff.

BP Not lawyers. 

CW Was it me? 

BP Somebody on an email listserv somewhere. 

HM Well, the things like MIT and BSD, I don't think people understood how important and pervasive those would be and so they were written a little bit on the casual side. From a legal point of view, they're written in a very vague way and many lawyers over the years have asked me about what they mean because they just can't figure it out from looking at them. They think that BSD is like a copyleft license which it’s not just because of the way it's worded. So the early ones were kind of casual and for legal documents that's not a good thing. And then there were the copyleft licenses, like GPL is really written almost as a political statement rather than a license. And there's a lot of detail in it, but it's not written the way a lawyer would write a license, for better or worse. And then there were some that came after that like Eclipse and Mozilla and some of the others that actually preceded those and those were more traditionally written so for lawyers they were easier to understand. And then if you go to the really modern ones, I think the craft of drafting open source licenses has improved greatly as more people got involved in it and more people who had experience drafting licenses. 

BP Right. That's interesting. Were those early ones written more from like a mission driven perspective of software developers who wanted to foment open source, but maybe as you pointed out, didn't have a ton of legal training to craft the language in that way?

HM Yeah. Well first of all, to be clear, they were trying to do something that really had never been done before so there wasn't like a way to do it. And they did have legal advice, but I don't think they wanted the licenses to sound like traditional licenses. They wanted them to be developer manifestos and that's what they were. It's just that then when people asked their lawyers, “Can we use this stuff?” and someone had to say yes in order to green light the use, then the lawyers actually had to understand it. And if you ask people who wrote those first licenses they would probably say, “Oh, well this is perfectly comprehensible to developers.” I'm not sure that's exactly right but it certainly wasn't comprehensible to lawyers. 

CF Unless anybody had any more questions about licensing? No? Yes?

CW I guess my last question would be, do you have a favorite license? Like a go-to where you’re just like, “This is what you should use on your projects.”

HM Well, those are maybe two different questions. So from a craft of drafting, most of these things are drafted by committees so it kind of limits the absolute quality of it. And this will probably be self-serving, but I was on the drafting team for Mozilla 2 and I think that was very good work product. I know the people who worked on it worked really hard to get it right, and we did have to work with starting from Mozilla 1, but we really did a lot of work on that. And then GPL-3 and so forth, those are much improved compared to the earlier versions. As to what I recommend people use, honestly it really depends on what the objectives of people are. It's very important to use licenses that everyone understands, so even if there were a perfect license out there that nobody used it wouldn't be the right license, because part of open source and getting people to participate is that they have to understand what you've done. And the great thing about open source is it’s at this point very standardized so there are about six licenses anybody uses. And so it makes almost no sense to pick any but those six, because then you're just making people educate themselves about what you're doing. I sometimes call that the understanding tax, so that's usually not going to accomplish your goals if what you want to do is have people adopt and use and contribute to the software. 

CF We talked a lot about your experience as a lawyer with open source licensing, I want to hear how you made that transition into venture capitalist work. Were you approached? Is this something that you had in mind that you wanted to do and then you decided to somehow figure out how to get into it? I want to hear more about that. 

HM Well I was plucked out of my lawyering by JJ, Joseph Jacks, who was starting this fund that specifically invests in early stage commercial open source development. So just for context, it's very unusual for a fund to have a focus that specific but that's what he wanted to do. And then he came to me and said, “Would you be interested in being involved?” And my first reaction was, “What do you want me for? I'm just a lawyer.” But then as I thought about it I realized that I had actually been spending a lot of my time focusing on strategy instead of pure legal advice by that time and so I thought, “Well actually, this kind of makes some sense and it sounds really fun and interesting.” And so I said, “Okay, I'll get involved in this,” and it was great. I was close to retirement by that time as a lawyer and so this changed the whole trajectory of my career, probably in a good way because I was getting honestly a little burnt out on the lawyering stuff. I'd been at it for a long time. So yeah, I just got picked. 

BP Right. Well, you have all this great experience in it, and also as you said, working in mergers and acquisitions and stuff like that that relates to venture capital or advising people on areas where their shares might be worthless or worth something. I think those all tie nicely in. 

HM It doesn't hurt. 

BP It doesn't hurt. Cassidy and I have been on a number of shows where we talked about this, and I know Cassidy, you have personal experience working with folks, but you mentioned that the idea is to invest in commercial open source. So I'm curious what makes for a successful commercial open source project from your perspective, because many open source projects have been created that go on to have great success in terms of the number of developers who use them, even large enterprises who use them, how popular and sort of productive they are for the whole ecosystem, but they don't function well commercially. So when you think about it from that perspective, what is it that allows something to be open source, and then as you pointed out, widely understood and adopted, but also be a successful commercial venture and therefore a successful venture investment? 

HM Well, it's a good point. First of all, there are plenty of open source projects that are not commercial ventures and that’s great, that's a separate thing. But if you want to make a business around an open source project, you have to do a little bit of planning about how you're going to accomplish that, because the open source software is free and even if you pick a license like GPL or a Pharaoh GPL that will not prevent people from using your software to compete with you. So you have to think, “What are we really selling here?” Because it's not the open source code, right? And the way I like to characterize this is that customers don't buy source code, that's just not what they buy. It's a tool. They buy products or services. So you have to figure out what products or services you're going to be selling if you're going to make a successful business. And it's perfectly possible to make a successful business around an open source project but you're not selling the project, you're selling something different. For instance, you could be selling hardware, you could be selling managed services, you could be selling what we call an open core model and have some complimentary software like an enterprise edition that you charge people for. There are actually at least half a dozen different common variations. But the most important thing about it is to be realistic about how you get from a project to a product to a company. And this may date me a little bit, but I don't know if you remember the underpants gnomes on South Park? They had like, step one, collect underpants. Step three, profit. And then there's a big question mark in the middle. 

CW I don't think I realized that was the origin of that. I like it so much but I didn't realize that's where it came from. 

HM Oh, yeah. Unfortunately some open source developers engage in some magical thinking like, “We're going to have this really successful project and then we're going to make lots of money.” Well, you have to figure out what the question mark in the middle is. Like GitHub stars don't make you money. 

BP You can't eat GitHub stars.

CW I think my last question for you is, you mentioned you were a musician. Could you talk a little bit about that? Because there was a little stint where I was just like, “Wait, what was that?” 

HM Sure. Well let's see, after I graduated from college and I eventually moved back to LA where I was from and I was working as a computer programmer and then I decided I wanted to become a musician. So I'm a drummer and a singer. 

CF Wow. 

BP Yes!

HM And a songwriter. And so I decided to go to music school. So I went to this school that doesn't exist anymore unfortunately. It's like a trade school, it's like a one-year certificate program and I took the percussion program and then I got into working professionally more as a musician. I will say that that certificate program was the most difficult school I ever went to including college and law school. 

BP You're telling me drumming is harder than programming? That makes me feel good.

HM Mainly because I didn't have enough talent. I love music and I love playing the drums and I love writing songs and everything, but one thing I learned was that there were people around me in school who were truly talented and it was just shocking what they could do and I was in such great awe of what they could do. And I am a person who is diligent and diligent people can get pretty far doing something even if they don't have a lot of talent. And that's what I was like as a drummer certainly, but I realized that, and then I became like a band leader. So I had pretty good organizational skills and I wasn’t on drugs so I was capable of bringing a group together and taking them out to play professionally. And I knew a lot about music by then, having studied it so I became a little bit more of a band leader than just a player. And then I would hire drummers to play in my band because they could play way better than me and they hardly charged anything.

BP Drummers are notoriously the ones who don't show up on time for the gig if they show up at all, so band leader makes sense. 

HM Yeah, that's because they have more equipment than everybody else. 

BP Oh, sure, sure. That's why.

CW So can we buy your albums anywhere? 

BP Yeah, what's your Bandcamp?

HM I have never tried to do that. I actually just recently got all my old stuff digitized. That was a huge effort because it was all on obsolete media of all different kinds, of a stunning variety. And I had to find people who could handle all these different media so I saved them from oblivion and now they're only in partial oblivion. 

BP That’s good. Amazing. My last question is, I've been thinking a lot about the Web3 world and the blockchain world and what people are interested in achieving there and a lot of developers and folks who are interested in it are keen on it because in some ways they feel it's distributed, that no single entity has control, and that it will allow people to sort of collaborate in creating things. But I guess one of the things I'm curious about is to what degree that offers something that the open source model, which as you pointed out, 30 years ago was seen as completely fringe and then dangerous and now fully accepted by many large businesses, can't offer. Do you have any thoughts for us on Web3 or blockchain and where that might sit side by side with open source?

HM Sure. Well, they do have similar characteristics like people collaborating async, or I guess you'd say collaborating for open source, but let's say people are participating in a market or something that is on a blockchain. They're interacting asynchronously, they might not know each other, they might not know each other's personal identities, they could be all over the world. And so those qualities are similar and I think open source and the way people interact in open source laid the groundwork for that on a social level kind of. But things like cryptocurrency are very different from open source in lots of ways. I do think that cryptocurrencies will eventually be very common but I think most of them will be fiat currencies instead of the decentralized ones. And the reason for that is a practical one, which is that countries can't afford to have people operating outside the bounds of their economic control for taxation reasons and legal reasons and so forth. But blockchain goes way beyond that and I think what most people don't see about blockchain is the way that it can help with all sorts of things other than cryptocurrency. So that is an extremely interesting idea and if you build blockchains that are really reliable and don't destroy the environment then it can be an extraordinary tool. I would liken it to what the web was in like 2000, which was people who were just your average consumer, they thought the web was like Yahoo or the web was eBay. And what they were not seeing was the way the web was being used to restructure the supply chain and completely change the way business was done on a practical level. I think we have an analogy in blockchain where it's going to underpin a whole lot of stuff that isn't crypto and that for your average person it would be completely transparent to them. 

BP Right, right. Fascinating. Well, thank you so much for that.

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BP All right, everybody. It is that time of the show. We are going to shout out the winner of a lifeboat badge, someone who came on Stack Overflow and found a question with a negative score of 3 or less, they went ahead and gave that question an answer and now it has a score of 3 or more and that answer has a score of 20 or more. “Why do we need abstract classes in Java?” Yeah, why? Well, Keshlam has the answer and has been awarded a lifeboat badge, so thank you to Keshlam for spreading some knowledge around the community. Asked eight years ago, viewed over 50,000 times. All right, everybody. I am Ben Popper, I am the Director of Content here at Stack Overflow. You can always find me on Twitter @BenPopper. You can always email us with questions or suggestions, And if you like the show, leave us a rating and a review. And if you like to hang out on YouTube or you’d prefer to see us as we chit chat, we now have video versions of the podcast up there so go ahead and smash that subscribe button. If you want to see Cassidy without her glasses for the first time you’ve got to go to YouTube. 

CW Watch out world! My name is Cassidy Williams. You can find me @Cassidoo on most things. I do developer experience at Remote and at OSS Capital. 

CF And my name is Ceora Ford. I'm a Developer Advocate at Auth0. You can find me on Twitter. My username there is @Ceeoreo_.

HM And I'm Heather Meeker, a venture capitalist and lawyer. You can find me at or And by the way, I've written a book about open source licensing which a lot of people find helpful and I make like no money on. You can get a free copy of it, download a free PDF copy if you go to my website, and hit the links tab or button or something, and it'll give you instructions on how to sign up for a list to get updates about the book and also download the book and some associated materials. So feel free to do that. 

BP Is this book open source or can I profit off of it or just download it? 

HM Nope. 

BP Okay, got it. Just checking. 

HM Doesn't really work for content so well. 

BP Gotcha, gotcha. All right, everybody. Thanks for listening and we will talk to you soon.

All Bye!

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