LJ Archive


The Free Software Act

Maureen O'Sullivan

Issue #122, June 2004

An international standard law will help your free software license work the same in all your users' countries.

Free software licenses function in a number of different ways. First, they are a statement of rules about what free software programmers can and cannot do within their own communities. Part of the reason for complying with these conditions is the power of reputational capital: there is an incentive to play the game by the recognised rules, whether formal or informal, written or understood. The licenses also bind in a legal way because they are built on copyright and licensing or contract law. Copyright protects authors' original creations by allowing them to prevent access to their work; software licenses permit access to such works, under certain conditions. When the licenses are proprietary, what the user can do with the work is quite restricted, whereas free software licenses allow different degrees of freedom. Some, such as the BSD licenses, have practically no requirement to give anything back. Others, such as the GNU GPL, place strong obligations on authors when software is modified and published.

The law governing software licensing appears straightforward, but it is not. Contract law varies from jurisdiction to jurisdiction, as does copyright. A law drafted in one legal system may not bind in another. Therefore, ideally speaking, some international standardisation of law in this area should be in place to make sure rules that bind in one country do likewise in another.

This point was made clear to me when I began studying this area of law from a socio-legal perspective some years ago. I believed that free software legislation was something that programmers involved in this line of work should seek. I started work with the Free Software Consortium (FSC) during the summer of 2003 and was appointed as coordinator of their Legal Governing Body. In Costa Rica last September, I commenced a project to draft free software legislation with a view to getting it passed by legislatures around the world. The project is in its infancy but is maturing rapidly.

My early take on the matter was that because the GNU GPL was the most commonly used license among free software developers, the law should be put in place to protect this scheme. Draft 1 of the Free Software Act attempted to enshrine its terms and added a few more, such as protection for any programmers who inadvertently infringed a copyright. This latter point would preempt any recurrence of vexatious lawsuits, such as the current SCO vs. IBM case. I quickly was put right, however, by colleagues in the FSC and by Richard Stallman himself, who advised me that such legislation should not seek to copyleft all free software but, rather, should endeavour to grant legislative force to all free software licenses. Draft 2 was an improvement on the first draft but still appeared to copyleft all free software. I began work on Draft 3 after Christmas 2003, and it recently was completed. I currently am working on Draft 4, which I hope will hit the mark more closely. Once completed, Draft 4 will be available on the FSC Web site, as are the earlier versions.

My idea about this project is to make it a venture of the Free Software community as a whole. The worst types of law are those that disrupt beneficial and functioning social contracts, such as the introduction of copyright law to cover software when previously it had been a shared resource. Lawyers have to respond to social movements and change. They should take part in such movements and share such drafting activities, so they become linguistic facilitators of communities' customs and wishes, rather than interlopers who enter the fray and disrupt it.

This project continues to be a learning experience for me. Initially, I saw value in protecting only the copyleft system, as it is the most common one, makes the most demands and potentially is most vulnerable in the eyes of the law. Other considerations need to be taken into account, however. Such a law would prove divisive if it protects only one, albeit the majority, view. It would be preferable, indeed, to have an international law that gives protection to all free software licenses. This would mean any clashes between the license and the contract or copyright law of the particular country in which the case is being tried would be irrelevant: the legislation would act to bind third parties and would ensure that rights recognised in one place would be recognised similarly in another.

At the time of this writing, Draft 3 is the most recent version of the Act, and it can be viewed on the FSC Web site at www.fsc.cc. Comments are welcome, and participants to the FSAct mailing list at Fsact@lists.fsc.cc are encouraged. Alternatively, you can e-mail me at maureen@fsc.cc.

Maureen O'Sullivan is a lecturer in law, based in the UK. Her research interests are in legal and socio-legal aspects of free software, including licensing.

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