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Lex Sells? - A Practical Legal Response to SCO: A "Free Software Act"

Users and developers of free software need and deserve legislative protection and recognition

The few legal researchers in this area worldwide seem hell-bent on fitting free software into a copyright mold, even though the introduction of copyright coverage of software had been very divisive in its time and cut hackers (I use this term interchangeably with free software developer) off from a previously communally held resource. This may once have been the only option, but I now believe that the exclusive reliance on copyright has had its day.

A new law to protect free software, a sui generis or "of its own kind" legislative regime, is warranted for a number of reasons:

  • First, it will extend the ambit and number of rights already granted in free software licenses, which would prevent vexatious cases such as SCO vs. IBM from ever coming to the fore by giving exemptions, for example, from liability for inadvertent infringements of copyright by free software developers. A company in SCO's position could argue, of course, that any such infringement was intentional, but the onus would be on them to prove it once in court.
  • Second, it will give protection to all free software licensing regimes internationally, once passed as a UN treaty and/or an EU Directive. This would make what are at present contractual terms binding on third parties, as they would be enshrined in legislation and not subject to the "privity of contract" rule. It would also obviate the necessity of homologizing free software licenses in different jurisdictions where they could be tested.
  • Third, and most important, legislatures have to respond to grassroots movements and consider protecting their activities and creations. Indeed, businesses and governments involved in free software development would also benefit from such recognition and regulation. Specially tailored laws that support those informal, customary rules already in place are often a better option than the pressured imposition of an external regulatory regime introduced by corporate lobbyists, which has to be subverted in order to function effectively for free software ends.

Free Software Licenses: Contract Combined with Copyright and Social Responsibility

The free software community has adopted copyright together with licenses in a seditious way, to protect their works. This mimics proprietary software protection mechanisms but reverses their restrictive aspects, turning them into open ones instead.

When free software was almost the exclusive preserve of hackerdom - before commercial, governmental, and NGO involvement - these licenses functioned more as a form of social contract that delineated the behavioral norms of hackers, rather than as legal documents per se. The licenses were a type of informal codification of hacker customary law that got written down just so everyone knew the rules, leaving everybody free to choose the regime under which they would develop their software. The most liberal licenses, those used for BSD Unix, demanded very little from participants: usually not much more was required than authorial attribution.

The most popular free software license, which now covers up to 80% of free software projects, is the GNU GPL.

In terms of what it demands of participants, this is at the opposite end of the free software licensing scale from BSD licenses. The GNU GPL is a mesmerizing document that oozes richly constitutional, natural-law style prescription, setting out aspirations, rights, and duties of participants and partakers of its code. It initially reads as something of a declaration of independence from proprietary software licenses and establishes unambiguous socio-legal boundaries. You may use and modify the code, but when you publish any such modifications, access to their source code cannot be denied. Underpinning the legal basis of the GNU GPL is a vision of a particular type of community - one that discourages corporate-style greed and fosters a climate of sharing.

This license has as firm a legal footing as most software licenses - or firmer. Like any software license, free or proprietary, it first depends on copyright to protect programmers' creations, which prevents anyone from misappropriating free software. It then uses its license to lift some restrictions normally found within copyright law in the sense that copying and modification of the source code are permitted. However, if you avail of this generosity, you must play the game according to the terms set out by the license that has benefited you in this way.

The most fascinating aspect of the GNU GPL from the socio-jurist's point of view is that in 14 years it has been observed universally without having been tested in court.

When you compare this with proprietary software licenses you find just the opposite: in some countries, despite regular litigation, there is 100% nonobservance of their licenses. Of course, within a proprietary software regime, there is no incentive to comply with licensing terms, apart from a fear of being caught.

If you consider proprietary software a rip-off, then there is every incentive to break every law in the book. Software sharing is more or less a cost-free exercise. Even if firms have massive financial input at the software development stage, nothing can possibly justify the "life plus 70 years" protection that software programs currently enjoy under copyright rules. This time span does nothing to address the supposed balance in copyright legislation of the fictitious notion of enhancing the public domain by shutting out users and copiers for a limited period. Hence groups such as the Business Software Alliance face an uphill battle in their quest against unauthorized software sharing and endeavor to turn this activity into a moral issue by labelling it "theft" and "piracy."

Their neo-confessional approach involves the construction of a pseudo-conscience with a difference: the individual is not encouraged to confess his/her crimes; instead, the BSA persuades colleagues (read disgruntled employees) to inform on each other via their Web site. This practice is nothing short of despicable; in fact, the BSA totally failed to get any cooperation at all in Ireland a number of years ago because the society and the computer industry were sufficiently tight-knit to resist this sort of antisocial activity. The 100% compliance rates with the GNU GPL and other free software licenses tell us a lot about their symbolic community power. This makes them function primarily as social contracts rather than strict legal documents per se.

There are violations, of course, many of them likely inadvertent, but the social pressure exerted on would-be miscreants is so strong that they normally get into line. I do not believe that this is a negative feature of these licenses - it is more of a gentle reminder that free software is not a total free-for-all. In this way, the free software community has functioned and thrived even in the shadow of proprietary software and its legal threats. The SCO vs. IBM case is the first head-on challenge of this magnitude to the GNU GPL that could also destabilize other free software licensing regimes and, predictably, it comes from quarters that are not bound by the aforementioned community norms.

A social contract binds participants that have something to lose if they disobey the terms. It functions within communities, and clearly, free software developers are not just technicians. They are citizens within their own societies with rights and obligations. Social contracts, however, do not necessarily constrain outsiders who seek to enter the group for their own ends. As more and more external actors begin to participate in the free software community, new ways must be found to ensure that they are respectful of existing rules which, after all, allow them to benefit from goods that have been developed for free. The social contract may not oblige them, so the legality of the GNU GPL and other software licenses is relied upon to back up the informal rules or customary laws already being observed.

This is somewhat problematic from an international legal perspective. Most free software licenses were written in the U.S., which is a common law jurisdiction. They rely on contract and copyright law, both of which differ from country to country. Most jurisdictions do protect software as a literary work under their copyright laws, but the rights that copyright actually protects in different jurisdictions do not form an international standard.

This means that proprietary software companies, increasingly threatened by the spread of free software, have an incentive to start testing the GNU GPL in a multitude of jurisdictions around the world. The SCO vs. IBM case is only the tip of the iceberg in terms of what may happen: the only question is when and where they could strike next. Even if SCO is not successful, and early signs indicate that it will not be, it has created FUD (fear, uncertainty, and doubt) for anyone considering the deployment of free software and has wasted an inordinate amount of time and money that could have been better spent elsewhere. It raises an important question, however, for any public body involved in developing free software, for if they suddenly find themselves being sued by a proprietary software company, they will be discouraged from continuing on down the free software road.

They will also waste a significant amount of tax payers' money in defending any such case. Moreover, negative publicity associated with this type of court case would be damaging to governments and their efforts. Unfortunately, those involved in free software development may be more vulnerable to reputational damage than their attackers in certain sectors of the outside world.

Free Software Legislation?

The conclusion of my thesis was that some legislation that specifically protects free software is essential. It could incorporate the terms of different licenses just by saying that when using a particular license, users, copiers, modifiers, and distributors are bound by its terms.

This would mean that contractual provisions that do not normally catch third parties would be enforceable because the duties would be in the Act or the law, which binds everyone. Other aspects in need of clarification would be a definition of free software and the rights and duties that attach. Another very important provision would be that there should be exemptions from liability for any free software programmer who inadvertently infringes copyrighted code or proprietary software licenses. This would mean that SCO would have no claim, and public bodies involved in free software development, such as the EU, would not have to worry about troublesome law suits designed to vex. As it happens, SCO has been obliged by the judge in the case to show the disputed code, but this case will be ongoing for some time to come and will consume, at very least, great swathes of time.

There comes a time when, if we believe in democracy, we must insist that our legislatures respond to the existence and the creations of grassroots movements that provide such social benefits, and give them recognition by means of a protective legal regime. This idea already has credence among the general population when it comes to the so-called "intellectual property" of indigenous communities: the notion that a community should have some control over its own creations is fairly uncontroversial. Despite this, intellectual property laws disrupt these arrangements by permitting neo-colonists in the form of "inventors" and "creators" to identify these goods as unowned, to make minor changes to them, and then to embezzle the attendant profits.

However, despite the push to enforce and re-enforce ever more unjust copyright and patenting systems all around the world, there is strong resistance to this trend. The GNU GPL is quite possibly the strongest living example of such resistance: it has created an unusual commons or indigenous good - one that does not become depleted with use but, rather, grows as more participants enter its realm. Hackerdom merits appropriate legislation designed to protect their "ethnic" goods, which would operate as a reinforcing framework of the GNU GPL and other free software licenses. This would mean that the legislature should refrain from upsetting hacker customs and instead safeguard them in legislation so that they are protected from "invading" forces that would disrupt the resource.

Lex Sells?

A noteworthy model for this sort of scheme can be found in the Law Merchant, or Lex Mercatoria, which is now enshrined in the commercial code of a number of different countries. The GNU GPL echoes the Law Merchant in many different ways: the latter customary law arose out of trade fairs held in Europe in the Middle Ages when international commercial law had not yet been established. Merchants would meet and trade, but in the absence of a legal regime to regulate their dealings, they devised their own.

This was a transboundary law, formulated and observed by the merchants themselves, even if not recognized by the individual states whence they came. It eventually received recognition.

At the advent of the exponential growth of the Internet in the early 1990s, some lawyers thought that the Law Merchant would provide an interesting legal precedent to the development of laws in a "stateless" realm. Once entrenched in my studies at Warwick, I began to see that within the world of free software development, a type of Law Merchant had already evolved and had been informally codified - informally, in the sense of not having been passed by a legislature. I have dubbed this law Lex Lignux, in honor of its joint Lex Mercatoria and GNU/Linux heritage. We in the Free Software Consortium think this sounds rather sexy.

The Nitty-Gritty of Drafting a Free Software Act

I started floating the idea of a free software act publicly in June 2003 and it was immediately snapped up by Martin Pedersen and Jaco Aizenman of the Free Software Consortium. Jaco is especially knowledgeable about Latin American legislation that promotes free software, but the lack of free software legislative protection troubled me somewhat. In Brazil, a homologized version of the GNU GPL has just been approved by the Free Software Foundation, Creative Commons, and the Brazilian Government. This will be a good law solely within the jurisdiction; however, it does not approach this matter from an international perspective.

In light of the lack of international legal protection for free software, we decided to make the drafting of a free software act a priority of the FSC. The first draft was cobbled together by me in an Internet café in San Jose, Costa Rica, and Jaco provided the first commentaries on my rather amoebic endeavor. Not ones to waste time, we next consulted a specialist on international law, Manfred Pino Sbravatti, who suggested that we try to get it passed as a UN treaty. I then spent several months attracting commentary and recently met with Richard Stallman, who approves of the idea of the law. At present he and numerous contributors from around the world are helping me to make this Act truly representative by pointing out gaps and clauses in need of clarification.

The Free Software Group in the Costa Rican Congress is currently looking at this law, with a view to bringing it to the UN. We shall not stop there. Matters have progressed much faster than I had initially expected, but then I believe that forewarned is forearmed, and the more prongs we use to hold back the proprietary software tide of attacks on free software licensing schemes, the better.

Legislative clarity is never a bad thing. Well-drafted legislation needs to be representative, protective, and tight as a drum. Please participate in the FSC mailing list at [email protected] if you have any opinion on this or mail me direct at [email protected]. We eagerly await your commentaries.

DRAFT: Free Software Act Version 3

(comments to [email protected] or [email protected])

Recitals:

(i) "Free software" for the purposes of this Act is not a technical definition. Instead, it is software licensed so as to assure users, copiers, modifiers, distributors and any other beneficiaries of free software of certain freedoms.
(ii) Any user, copier, modifier, distributor or beneficiary of free software has standing to sue for any violation of this Act.
(iii) This Act applies to all non-proprietary software described under the following headings: free software, open source software, libre software, foss and floss and also to any software licensed under Free Software Foundation licences.
(iv) This Act affords legislative protection to the terms and conditions of any licence enumerated in paragraph (iii). It does not abrogate the conditions of any licence. This paragraph will supersede any other recital or section of this Act.
(v) Where non-proprietary software has not been released under a licence or its developers' copyright is not recognised in court, the relevant terms and conditions of this Act shall apply.

Sections:

  1. Free software guarantees the following freedoms to its authors, users, copiers, modifiers, distributors and any other beneficiaries, subject to any contradictory requirements of any licences used to cover the program:
    (a) The right to access the source code of any free software program for any reason.
    (b) The right to run the program for any reason.
    (c) The right to copy the program for any reason.
    (d) The right to modify the program for any reason.
    (e) The right to distribute the program for any reason.
  2. Authors' rights shall be protected in the following way, subject to any contradictory requirements of any licences used to cover the program:
    (a) The author of any free software program retains the right of attribution to his/her work.
    (b) Any modifier must acknowledge the authorship of the original and any subsequent versions of the program, along with the authorship of the modification.
    (c) Authorship must always be correctly attributed.
  3. All users, copiers, modifiers, distributors and any beneficiaries of free software have the right to know about and be informed about the rights listed in section 1 and section 2 of this Act.
  4. Distributors of free software, whether in its original, copied or modified form, when distributing the program, may not restrict any of the rights in sections 1, 2 and 3.
  5. Copies of the program may be distributed in exchange for money, providing that the rights in sections 1, 2 and 3 are preserved.
  6. Exemptions from liability:
    (a) When any free software programmer or user, while engaged in free software development, inadvertently violates a proprietary software licence, or any national or international law relating to "intellectual property" coverage of proprietary software, s/he will be exempt from the payment of damages and will be granted a reasonable time in which to rewrite any infringing code.
    (b) The onus to identify any infringing code enumerated in 6(a) will fall on the plaintiff.
    (c) There shall be no warranties for free software, unless such a warranty has been requested by the purchaser, agreed to by the vendor and paid for appropriately.
  7. Where a program has been developed in more than one jurisdiction, each with different copyright requirements, the provisions of this Act will apply.
  8. Sanctions:
    Any violation of this Act will result in an obligation on the part of those responsible to give access to the source code of any modified program based on free software.
Further sanctions may be imposed by the courts.

Definitions:

The Program: The "program" in this Act means the program, copies of the program, modified versions of the program and copies of modified versions of the program and source code of the same.
Use:
Run:
Copy:
Modify:
Distribute:

User:
Copier:
Modifier:
Distributor:
Beneficiary of free software:
Free software programmer:

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
Tyler Jensen 03/18/04 07:28:43 PM EST

It is intellectually vacuous and naive to propose the creation of a United Nations treaty or some other instrument of international law which establishes the FSF, a privately held non-profit corporation in Massachusetts, as the defining authority for “non-proprietary software” licenses without restriction or oversight review by any representative agency answerable to the nations under which the law will apply.

Adding the absurd to the ridiculous, the proposal then suggests that we abrogate established intellectual property legislation and case law nationally and internationally to protect the pockets of those who violate these laws as long as the violation was in the interests of promoting free software, further granting the perpetrator time to “rewrite” the code that was “inadvertently” misappropriated without regard for whether or not the perpetrator or others profited from the illegal act and regardless of the potentially irreversible damage done to the plaintiff.

Peter Norman 03/18/04 05:51:59 AM EST

I didn't see anything about the rights of the author to later relase a proprietary version. There are problems with trying to restrict this, given that the author still holdds the copyright. You might say:

The copyright holder of code released under a free software license may later relase non-free code derived from the free code, but this in no way affects the terms of the license granted under the free version. This right only applies to the code to which the aforementioned holder is the copyright holder. It has no effect on the status of any other code that was released with the holder's code regardless of how it was originally combined or which was the original and which the derivative work. In the case where the holder's work is the derivative, the situation is no different regarding whether the new version infringes than if the holder had never held any rights to distribute.

The holder who issues a proprietary version must supply or arrange for the supply of the free version on request or for a nominal charge covering the expense of so doing, for a period of 5 years, starting with the date the proprietary version is first published. This period is not extended by the holder's issuance of subsequent versions or derivative works, provided that they do not contain any additional code that was released as free code other than trivial amounts that would be considered fair use.

This act is a modification of copyright law, and as such it does not protect any underlying invention or give any person the right to infringe the patent rights of any party, except that any for invention that an author includes in free software and had the right to include and freely license at the time of a first publication to which he consented either directly or by assigning the copyright and patent rights to the copyright holder or publisher.

Any person who holds a patent and was the author or the copyright holder at the time of publication. Has 1 year to revoke the free license. Any persons who relied on this license in good faith may continue to use the invention in any works already published or that are published within 180 days of the revocation, provided that the user can demonstrate that a substantial portion of the work had been written at the time of revocation. This demonstration may be of any form that accomplishes its aim, including but not limited to testimony other than hearsay and documentation.
Any person who misuses the right of revocation is subject to action under civil law by any relying party.

Peter Lewicke 03/18/04 05:50:42 AM EST

While a law that specifically allows free software might be a good idea, the GPL model is too restrictive. A law that also enshrined in law the BSD license would be a better idea. I believe that present US Copyright law is compatible with a wide variety of free and open source license conditions.

Ray Whitmer 03/18/04 05:49:23 AM EST

It is not clear to me how such a law would specifically help in the SCO case. I suspect that if we go to the trouble of creating a law, it should be more than just an echo of the GPL, which we already have.

P Hohmeyer 03/18/04 05:48:43 AM EST

Hmm, your law is not about free software, but about GPLed software. Section 4 (you cannot remove the rights) wouldnt apply to BSD-like licences.

So basically your law is just an official approval of Congress for the GPL.

Another principal problem I have with laws is that, while they are harder to challenge then a mere licence, they are under control of the government. So when people start releasing software "under the Free Software Act" instead of "under the GPL", the government defines what free software means.

When suddenly some juggernaughts of the software industry "convince" congress to remove section 4 of your law (because it is sooooo much better for the economy), the protection is void.

(Dont say that this will happen, it always has. Example : in Germany, syndicates fougth hard to get full salary during sickness granted in their contracts. Then it became law (and moved out of the contracts). Then, a few years ago, companies convinced the governement to change the law.)

So instead of transforming the GPL into law and give up control over it, we should instead create a law that is a framework for free software.

Basicly, it should just define what Free Software is, what conditions it *can* (but doesnt need) impose on redistribution of (derivated) work and perhaps a clause that governement will enforce the conditions.

For example :

1. Free Software is software released under a licence that guarantees the following rights : ...
2. The license might impose conditions that must be met to exercice these rights as long as no contact between the copyright holder and the licensee is required to fullfill the conditions.
In particular, the conditions license might include :
a. a requirement to give proper attribution to the author
b. a restriction on the licences that you distribute the work and all derrivated work under.
...
3. To encourage the creation of Free Software, the governement will ensure the enforcement of the licences conditions on the demand of the copyright holder.

Disclaimer : IANAL and this was hastly written

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