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Why We Need a Free Software Act

A plea for "democratically elected legislation"

Free software has relied on the system of copyright together with licenses, or contract law, to protect it since the decision was taken in the US in 1980 to extend the Copyright Act to cover software as a literary work.

Whereas proprietary software licenses restrict what the user can do, free software licenses amplify the limited rights available to users under copyright. Copyright vests automatically in the author, meaning that s/he doesn’t have to do anything - such as registration - in order to protect the work. It also binds everyone, even if they are unaware of the infringement.

The current SCO v IBM case shows some of the difficulties such a clause can pose for free software developers. Any software licence adds additional terms, either more or less restrictive, to copyright’s parameters. Software licenses are contract law-based and, as such, only bind the parties to the contract. When the terms of a license are violated by a third party who has not received it, copyright can be relied on to restrict any infringing acts.

The reliance of free software developers on a law which was primarily constructed to protect proprietary software is nothing short of subversive, in the most delightful way. Over the past few years free software has become ubiquitous. Numerous licenses are available to protect this resource, and there’s a healthy diversity of licensing models used for different free software programs. The most popular is the GNU GPL, the brainchild of the Free Software Foundation, which is now used in up to 80% of free software projects around the world - but this is the license which demands the most of participants. Whereas BSD-style licenses allow users to privatize published modifications, access must be granted to published, modified GNU GPL’ed code. This means that beneficiaries also become contributors, which helps to foster a community spirit and sense of communal effort.

As the boundaries and hegemony of proprietary software become eroded by this exponential phenomenon, backed up by the GNU GPL, proprietary software companies are actively seeking the license’s Achilles heel, in order to destabilize the resource it guards and its attendant community.

There are a number of responses that can be made. One obvious course of action would be to test the license in court: however, this could be a costly exercise if, for any reason, it were not upheld. Moreover, such a road would potentially lead to litigation in different jurisdictions all over the world and may create incentives in hostile camps to find a country in which it is not upheld. Another approach would be to “wait and see,” but when one knows that the enemy is massing forces and preparing a siege, it is wise to start stockpiling defensive and preventative mechanisms, just in case. Brazilian lawyers are at present modifying the GNU GPL to fit their complex legal system but first, the GNU GPL itself is not GNU GPL’ed - that is, you are not permitted to modify it – and, second, one wonders what they will do if their legislation or licence is violated outside the jurisdiction, where it may not be good law.

The most sensible solution would be to draft a piece of legislation that takes free software protection outside of the exclusivity of national legal systems, by enacting it as, say, a UN treaty, whilst at the same time presenting it to national parliaments in order to raise awareness of the legislative responsibilities that they bear. It would also bring the protection of free software out of the sole clutches of copyright which is, after all, a “colonial” law in the sense that it was written for a proprietary, and not a free regime.

Such legislation is not intended to disturb the current free software licensing system; rather, it would seek to reinforce it and add some additional provisions to protect free software developers and companies from vexatious cases such as SCO vs IBM. The second, I hope, improved draft is below and, as this is intended to be a collaborative project, we in the Free Software Consortium would very much welcome any commentary to our mailing list so that this law truly protects free software unambiguously: Fsact@lists.fsc.cc - or should anyone wish to communicate directly with the author, you may do so at maureen@fsc.cc.

See next page for draft of the FSC's Free Software Act

More Stories By Maureen O'Sullivan

Maureen O'Sullivan is a UK-based lecturer
in Law (Property and New Technologies), University of West of England, and President of the Free Software
Consortium Foundation. She is coordinator of the Cyber Tribunal and Legal Governing
Body, FSC.

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Most Recent Comments
Pablo Barrera 12/20/03 01:38:36 PM EST

Thanx agian, and FSA will be the first "common language" between free softrware world and "people" world. its time to "not divide" and "unite".

Taran 12/16/03 10:22:00 AM EST

I'm glad to see Free Software being used here, as opposed to the more popular alternative.

Pablo Barrera 12/05/03 05:09:46 PM EST

Greetings Mr xen0, what do you find specially insteresting?
I very interesting about your opinion!

xen0 12/05/03 01:00:10 PM EST

This sounds really interesting!

Pablo Barrera 12/04/03 10:46:43 PM EST

Dear Pb:

It doesnt really matters at this same time, think about the UN treaties like an obstacle. FreeSoftware and OpenSource strikes on "social knowledge", it comes like the rain, wind and other natural resources.FOSS is Knowledge, and this goes to zero all the time. So cant be stoped it!, but humans can acept the "way of" understand it!, anyway, anyhow, agree or not, FOSS will arise, and FSA contribute to this natural "process".
Dont talk about FOSS like technologies, like the only way to understand it., U know, im talking about balance, and its exists on politicians, too...

Pb 12/04/03 09:16:57 PM EST

Draft whatever legislation you like, but don't expect the GPL to go anywhere in the meantime--many countries already don't follow or abide by many UN treaties, you know, and the punishments for not following them are often... non-existent.

Pablo Barrera 12/04/03 10:29:13 AM EST

FSA Brings Balance to the FOSS Force. This will show us howto "not to do", like SCO and IBM fight. If FSA enter in the "common world", will bring us security, will be acepted for everyone, doesnt matter if u like the philosophy of Richard Stallamn or your prefer the Develope Model of Eric Raymond. It means, that you will have access to unify concepts, unify efforts, to avoid troubles , specially "legal troubles", beging to learn HOW Free Software coulb be necessay and useful for People, Enterprises and NO IT people ,too. FSA brings equality, from my point of view, bewteen "geeks" and "humans". Somebody says, FOSS is a "geek bussiness", but its not true, FOSS is for everyone, FSA take it to real world, to the correct concept.

Pablo Barrera 12/04/03 10:21:07 AM EST

FSA, "brings balance" to the FreeSoftware and OpenSource Force.It Means, while SCO falls down into a desesperate war against "freedom", if this Act runs officially, we will learn the things that will never repeat again. We must learn and rationalize this "process". People must know that doesnt loose rights and benefits using Free Software, are empowering it. While the inevitable "evolution to" FOSS is growing up, we must on every place (especially countries in undepeveloped conditions), join and work to make it "available", people must know, what`s the meaning of it. Robbing to Ian Murdock his words (Linux is a "process"), we can say that FOSS are processes, too, and web must use this FSA like the "guide point" to "real freedom" in IT and "common" world, too.

Martin Olivera 12/04/03 09:35:08 AM EST

FSA could be probably the best way to protect the Free Software Community Knowledge from private appropriation. Due to recent recommendations from UN organisms like UNESCO, UNCTAD, UNDP about use of FLOSS for developing countries, it should be important to have a UN umbrella to protect this initiatives.

Jaco Aizenman 12/03/03 07:39:43 PM EST

The Free Software Act may take decades to be implemented, however, if the SCO vs. IBM Judge rules the GPL as inconstitutional, it will take not decades but years, and even motnhs, if Countries -and local Congresses at state/province level- in Brasil, Germany, Spain, China, etc, coordinate with UNESCO and other UN bodies to pass the FSA as an international convention. This is an additional advantage the FSA provides over the Copyright law, which is different in many countries. Through a UN FAS Convention, that can be ratified also at State/Province level, the free software law can be the same in all the world.

Ian Rowan 12/03/03 03:46:40 PM EST

As the gun-rights crowd says, we don't need new laws, but rather better enforcement of the ones we already have. The attempt to reconcile copyright legislation with the rights of the individual is admirable, but not if it attempts to transfer even more sovereignty of those individuals to yet another organ of state.

Thomas Frayne 12/03/03 02:34:25 PM EST

The Free Software Act is a good idea, but it will probably take years, or even decades, to get it enacted. Meanwhile, it is necessary to protect the IP owned by the open source community using the existing legal structure.

The GPL is adequate protection against those who would try to modify GPLd programs without honoring its terms. We need additional protection against those who would try to claim ownership of programs they don't distributed, probably by means of patents.

I think that the best protection for this would be a patent portfolio, to be used for cross licensing.