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The Free Software Act
Saturday, December 20 2003 @ 05:28 AM EST

I noticed an article on something called the Free Software Act, which is currently being drafted by the Free Software Consortium Legal Governing Body. I was interested to note that some brain power is going into figuring out a way to prevent any future SCO-like events. There is an effort to create something internationally useful, stronger than the license-on-top-of-copyright GPL, a law specifically designed to protect free software. I especially noted the wording on warranty.

I found it interesting enough that I contacted the author, Maureen O'Sullivan, who is a lecturer in Law in the UK and President of the Free Software Consortium Foundation and also co-ordinator of its Legal Governing Body and Cyber Tribunal, and asked her if we could publish it here on Groklaw. She agreed and sent the following introductory remarks as well as the second draft of the Free Software Act, which is still a work in progress, and she welcomes your comments:

"Free software relies for its protection on the legislative regime tailored for proprietary software. Its effective use of copyright and licenses to achieve the opposite of what these were designed for is a type of socio-legal subterfuge which thrilled me to the core when I first encountered it. The GNU GPL especially is the subject of many attacks, ranging from descriptions of it as a 'cancer' to the more recent and, indeed, serious SCO v IBM case which has tried to find a legal premise on which to shake its hegemony. Early signs from the case seem to indicate that SCO may have bitten off more than they can chew; yet, the case is extremely vexatious and wastes time and money which could be spent better by the free software community in general.

"A pre-emptive strike against future SCO-type cases is being developed by the Free Software Consortium Legal Governing Body, which I co- ordinate. My draft free software act goes a step further than free software licensing: it offers additional protections not generally granted by licenses and also raises the possibility of a homogeneous, international legislative protection of free software. I am working with Richard Stallman on ironing out several incompatibilities in the draft at present (it is still quite embryonic). The intention is to produce a free software act which would protect all free software licenses rather than confining them to copyleft which would undoubtedly prove divisive.

"The Free Software Group in the Costa Rican Congress is currently revising the draft with a view to presenting it as a UN treaty. The Act follows this introduction. Comments are solicited and welcome. To participate in the general discussion, please post a comment to Fsact@lists.fsc.cc or you can contact me direct at maureen@fsc.cc."

***********************************************************

DRAFT

FREE SOFTWARE ACT

Recitals:

(i) “Free software” for the purposes of this Act is not a technical definition. Instead, it is software licensed under free software licences which assures users, copiers, modifiers, distributors and any other beneficiaries of free software of certain freedoms. The objective of this Act is to clarify and strengthen the rights of the aforementioned which are already enjoyed in practice.

(ii) Any user, copier, modifier, distributor or any other beneficiary of free software has standing to sue for any violation of this Act.

Sections:

1. Free software guarantees the following freedoms to its users, copiers, modifiers, distributors and any other beneficiaries of free software:

(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.

(f) Authors’ rights:

(i) The author of any free software program retains the right of attribution to his/her work.

(ii) Any modifier must acknowledge the authorship of the original version, along with the authorship of the modification.

(iii) Authorship should always be correctly attributed.

(g) 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 of this Act.

2. Distributors of free software, whether in its original, copied or modified form, when distributing the program, may not restrict any of the rights in section 1.

3. A charge may be made for the program, providing that all rights in section 1 are preserved.

4. Exemptions from liability:

(a) When any free software programmer, while engaged in free software development, inadvertently violates a proprietary software licence, s/he will be exempt from any liability whatsoever.

(b) When any free software programmer, while engaged in free software development, inadvertently violates a software copyright, s/he will be exempt from any liability whatsoever.

(c) There should 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.

5. Users, copiers, modifiers, distributors and any other beneficiaries of free software are bound by the contractual conditions of any licence or licences which apply to the program or programs they use.

6. Where a program has been developed in more than one jurisdiction, each with different copyright requirements, the provisions of this Act will apply.

7. Sanctions:

Any violation of this Act will result in an obligation on the part of those responsible or of third parties to give access to the source code of any modified program based on free software.

Further sanctions may be imposed by the courts.

8. 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:

© Maureen O’Sullivan, B.A., DipL., B.C.L.(Cork), LL.M.(Warwick), Lecturer in Law (Property and New Technologies), UWE, UK, President Free Software Consortium Foundation, Co-ordinator Cyber Tribunal and Legal Governing Body, FSC © 2003, This document may be reproduced verbatim in any medium, providing that this attribution is preserved.


  


The Free Software Act | 181 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT: SCO's Copyright claims vs IBM
Authored by: Anonymous on Saturday, December 20 2003 @ 06:20 AM EST

Sorry to post off topic, but this has been bugging me all week: what happened to SCO's amended complaint (vs IBM) which allegedly was filed friday night last week? It was supposed to contain claims of copyright infringements by IBM which I'd be really curious to see. Sorry again if this was discussed before (under another heading?).

[ Reply to This | # ]

The Free Software Act
Authored by: minkwe on Saturday, December 20 2003 @ 06:27 AM EST
Interesting stuff. It's like the GPL in plain english. However, the LGPL is not
covered by it.

In addition there is no mention of derivative works. What about static &
dynamic linking?

---
There are only two choices in life. You either conform the truth to your desire,
or you conform your desire to the truth. Which choice are you making?

[ Reply to This | # ]

The Free Software Act
Authored by: lpletch on Saturday, December 20 2003 @ 06:31 AM EST
Recitals:

(ii) Any user, copier, modifier, distributor or any other beneficiary of free software has standing to sue for any violation of this Act

This looks too much like a free for all to me.

Could easily be abused.

[ Reply to This | # ]

The Free Software Act
Authored by: rdowner on Saturday, December 20 2003 @ 06:45 AM EST

There is one aspect of this that concerns me, in that in turns a prime piece of FUD into law. In the article posted a few days ago, "The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling", Eben Moglen says this:

"The claim that a GPL violation could lead to the forcing open of proprietary code that has wrongfully included GPL'd components is simply wrong. There is no provision in the Copyright Act to require distribution of infringing work on altered terms."

But this draft includes this paragraph:

Any violation of this Act will result in an obligation on the part of those responsible or of third parties to give access to the source code of any modified program based on free software.

If I read this correctly, the FUD "GPL is like a cancer and will force your proprietory code to be published", will become true under this draft act. One of Microsoft's main pieces of FUD stops being FUD and becomes fact.

[ Reply to This | # ]

The Free Software Act
Authored by: SilverWave on Saturday, December 20 2003 @ 07:28 AM EST

The GPL is bullet proof BECAUSE it is based on copyright. To break the GPL you have to break copyright – NOT going to happen!

Oh… and this could have a backlash in the states… looking suspiciously like a International/UN/French/Commie Plot… don’t go there!


________________________________________________ “If it isn’t broke don’t fix it”


[ Reply to This | # ]

OT...SCO wins award too
Authored by: lpletch on Saturday, December 20 2003 @ 08:00 AM EST
InfoWorld awards SCO the Weapons of Mass Delusion Award.

Weapons of Mass Delusion Award:

Goes to SCO for its efforts to intimidate companies into licensing its software by threatening them with lawsuits. Like a certain deposed dictator, SCO has done an excellent job of hiding the evidence.

[ Reply to This | # ]

  • Go Cringely! - Authored by: Anonymous on Saturday, December 20 2003 @ 06:28 PM EST
Hogwash
Authored by: Anonymous on Saturday, December 20 2003 @ 08:21 AM EST
Sorry, but I find this detestful. It is basically turning every free software
licence into the GPL. If an author permits the freedoms mentioned in this act,
that would force his customers to do likewise, whether that is the intent of the
author or not. In effect, BSD licences would, against the will of their authors
and copyright holders, be forced to carry the restrictions of the GPL.

This is not different from McBride demanding that people might not be allowed to
licence their software under the GPL because that would not be profitable
enough, only that the kind of profit (here non-monetary compensation by
recontributing code to the code base) is different.

Such an act would strike out against the freedom and will of authors. It must
not be passed.

[ Reply to This | # ]

No liability?
Authored by: ctrawick on Saturday, December 20 2003 @ 08:34 AM EST
Look at section 4, "Exemptions from liability". It will prevent SCO
vs IBM from happenning again, but SCO's theories about suing end-users will
remain intact. SCO vs IBM really isn't that important in the grand scheme of
things, that's just a contract case. SCO vs the Linux community is the scary
part. There's nothing there to limit the end-user's liability. This act
would be a green light for SCO or anyone else who has a proprietary itch to sue
anyone for IP licensing.

Why shouldn't authors be liable for infringement? They're the people who
wrote the thing. Free software licensing rests on the benefits of proprietary
ownership, and thus free software authors are subject to proprietary
responsibility. You can't have it both ways.

chris

[ Reply to This | # ]

  • No liability? - Authored by: Anonymous on Saturday, December 20 2003 @ 04:40 PM EST
The Freedom to choose LICENSE copyright Act?
Authored by: Anonymous on Saturday, December 20 2003 @ 08:43 AM EST
Shouldn't this be less complicated and fall back on a reflection of the
software programmers rights to copyright as he or she sees fit? A freedom of
choice act?

There are now different forms of license available to the same pieces of code.
One can license one's copyrighted code under the GPL, or one of the many
watered down versions, or rather diversions, of the GPL.

Linus has said that a copyright holder is the owner and can decide what to
license under or how many licenses that the copyrighted code can be under (can
be under more than one GPL, BSD, LGPL, or other, etc). Linus, for example, has
in the preamble to the version of the GPL that applies to LINUX (with the
preamble) noted that LINUX and his preamble pertains ONLY to being governed by a
specific version of the GPL.... and, NOT any newer more liberal version!

ANY such act, as outlined above, should instead be a "FREEDOM of Copyright
CHOICE Licensee Act" (one that, in meaning and law, respects and endorses
the right of a copyright holder to choose just the GPL, for eternity)!

Question: Ownership of copyright gets into all kinds of interesing property
ownership issues (such as a copyright and ownership passing to heirs of the
original copyright holder's estate). These ownership issues might mean that an
owner or future owner could decide to change one's mind and atempt to change
the license status of the copyrighted (owned) work. AND What happens then? Can
a copyright owner at any time change their mind as to what version of a license
that affects this copyright? AND once a copyright is under the GPL can it be
then de-GPL's or removed from that license at any time in the future (per the
wishes of the owner)?

[ Reply to This | # ]

[somewhat OT] Free Software Consortium?
Authored by: jee on Saturday, December 20 2003 @ 08:44 AM EST

Never heard about them before. Went and had a look.

Their homepage at www.fsc.cc has alot of: Governing Body, Conflict Resolution Tribunal and Ethical Committee. Not alot of actual information though, no links to member organisations. The projects page shows them working on a linux distribution designed for the public secor apart from this free software act.

Looking with google mostly shows a hugely crossposted recruitement mail , about linking companies and contractors. Googling the domain gives, among other things this mail explaining the organisation with "develop a new business model to fulfill the demands of our times".

Anyone who knows anything about them?

[ Reply to This | # ]

The Free Software Act
Authored by: photocrimes on Saturday, December 20 2003 @ 08:45 AM EST
I know their heart is in the right place, but this is a sticky area for me:

(a) When any free software programmer, while engaged in free software development, inadvertently violates a proprietary software licence, s/he will be exempt from any liability whatsoever.

(b) When any free software programmer, while engaged in free software development, inadvertently violates a software copyright, s/he will be exempt from any liability whatsoever.

I like to trust people, but this looks just like the thing proprietary companies bitch about. It's just too easy for someone who may actually violate someones copyright to say "oops, I didn't know" even if the did. It would basically strip a valid copyright or license owner of all recorse.

I'm not too sure that is good for either side.

[ Reply to This | # ]

The Free Software Act
Authored by: jeanph01 on Saturday, December 20 2003 @ 08:50 AM EST
My first comment concerns the title "free software". There is/was
this debate as to say free as in beer or free as in speech ? It also can be
confused with the term "freeware" which does not mean it is open
source. Just free as in beer. But I agree that the term "open
source" is very vague for someone not in the field who has never taken a
look at source code in its life.
I suggest another title. Maybe "open software" ? Or "community
software" ?

[ Reply to This | # ]

The Free Software Act
Authored by: Bill The Cat on Saturday, December 20 2003 @ 09:14 AM EST
I'm not sure who these folks are but a few things come to light...
They're working with Richard Stallman. Are they working with anybody else?
FSF is fine but ODSL and others should also be brought into the loop or their
plan will be devisive by design.

This won't prevent another SCO type event because as long as there are people
as greedy and unethical as Darl walking the streets, somebody will always try
and twist the law to their own benefit. This won't really stop anyting because
the Darls of the world will try and rule it unconstitutional.

Finally, don't we already have these protections with the current laws on the
books? Sure the SCO case is testing them but copyright has been tested before
and will be again.



---
Bill Catz -
"The number of UNIX installations has grown to ten, with more
expected." -- UNIX Programmers Manual, 2nd Ed. June, 1972

[ Reply to This | # ]

The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 09:31 AM EST
Like others I have serious issues with the exemption from liability part. What I
would like to see instead is a section that states that where the history of the
code is publicly available, it becomes the obligation of the plaintiff to
demonstrate clearly the violation that occurred PRIOR to filing, and that
arbitration MUST occur before any legal process begins, with considerable power
of settlement handed over to the arbitrator. Considering open source is for the
common good, this doesnt seem unreasonable.

IE: Alledging violations is not the problem, doing so capriscously, or
maliciously is the problem.

(Sorry my spelling is awful)

[ Reply to This | # ]

The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 09:51 AM EST
The GPL works perfectly in tandem with Copyright law. It hasn't been struck
down yet, nor will it most likely.

It's simple, it works. Leave...it...alone.

[ Reply to This | # ]

OT:Can CA Save Linux from the Great Satan SCO?
Authored by: Stefan on Saturday, December 20 2003 @ 10:10 AM EST
http://www.linuxworld.com/story/38235.htm

Interesting story regarding the origin of SMP in AIX.

Sorry for being off topic.

[ Reply to This | # ]

The Free Software Act
Authored by: Jude on Saturday, December 20 2003 @ 10:25 AM EST
I don't like the "Exemptions from Liability" section because it
pretty much amounts to a license to steal. I cast no aspersions on free
software developers when I say this; they'd probably rather write their own
anyway. However, just the existence of such a loophole offends my sense of
what's right.

Also, it ignores the political reality that licenses to steal are generally
granted only to parties that already have huge amounts of money. Free software
advocates would never be able to afford the bribes^h^h^h^h^h^h campaign
contributions that would be needed get such legislation passed.

[ Reply to This | # ]

The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 10:28 AM EST
In my plain ole non-lawyer opinion, this draft seems poorly conceived or just
plain wrong.

In contrast to the GPL (and more importantly the LGPL), this legislation has no
provision for revoking permission to use, modify or distribute the subject
program/code.

I also see it as possibly creating a complicated patchwork of incompatability as
it both defers to a distribution license and it also takes presidence when
multiple jurisdictions exist for subject programs/code.

It seems like a good idea, but I fear that the implementation is a touch
unusuable.

[ Reply to This | # ]

The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 11:04 AM EST
I agree with most everyone else's comments here. I think this is a bad idea.
Adding laws on top of laws, especially when the newer laws have insufficient
specificity is just making everything too complex and misinterpretation...
perhaps weakening the already existing constructs such as the GPL.

One thing that hasn't been brought up here, at least not directly. Many
proprietary software vendors distribute certain software componenets at
"no charge," thus free. They only distribute binaries, as the
source is, well, theirs. This could inadvertently force the end of that model,
which would not necessarily be a "good thing."

[ Reply to This | # ]

OT: What?
Authored by: photocrimes on Saturday, December 20 2003 @ 11:22 AM EST
Ok, am I missing something here. What the heck is "SCOx Downstream
Petroleum Solutions" ???

http://www.sco.com/scoxpetro/

Is this a product name for something, or is SCO getting into the oil business?

I'm having trouble keeping up with them. What's next, Amway?

I also noticed that they have two new "news articles" posted, both
from Daniel Lyons no surprise ;-)

Funny how Groklaw can find a mountain of news everyday yet SCO limits themselves
to one or two a month. That in itself should be telling.

[ Reply to This | # ]

Truly Viral
Authored by: Anonymous on Saturday, December 20 2003 @ 11:27 AM EST

The GPL is mistakenly called viral by it's opponents, in that if you
inadvertantly or deliberately use GPL software you have no choice but to
open-source your code.

Section 7 of this license make this new license truly viral.

7. Sanctions:

Any violation of this Act will result in an obligation on the part of those
responsible or of third parties to give access to the source code of any
modified program based on free software.

[ Reply to This | # ]

  • Truly Viral - Authored by: Anonymous on Saturday, December 20 2003 @ 10:15 PM EST
    • Truly Viral - Authored by: Anonymous on Sunday, December 21 2003 @ 02:05 PM EST
    • Truly Viral - Authored by: Anonymous on Sunday, December 21 2003 @ 02:10 PM EST
      • Truly Viral - Authored by: Anonymous on Sunday, December 21 2003 @ 09:53 PM EST
  • Wrong - Authored by: Anonymous on Sunday, December 21 2003 @ 12:44 AM EST
    • Wrong again - Authored by: Anonymous on Sunday, December 21 2003 @ 02:01 PM EST
The Free Software Act
Authored by: shaun on Saturday, December 20 2003 @ 11:35 AM EST
The wording bothers me greatly. IANAL but I too see the "license to
steal" wording.

IF that was re-worded so that end users were not liable and the actual violators
could be held accountable then it would be much better.

The other issue is the "attempt" to broadly define what
"FREE" software is and the definition used is far to broad. Instead
of using the terminology currently employed, they should instead define the
definitions of what they mean by "FREE" or use a different term
entirely.

--Shaun

[ Reply to This | # ]

The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 11:52 AM EST
Greatly relieved to see that most people here think this is dumb.

The LAST thing free software needs is a bunch of idiot legislators trying to
"fix" it. Those guys DO NOT HAVE A CLUE. And the UN . . . ?
Someone has completely slipped their gears there.

If we ever got something like this Act in front of the US congress, be sure that
MS would express a desire to work with the FLOSS community to resolve these
confusing ambigutities, and would only want to add a little
"balance" to some of the provisions. By the time the battle was
over, the "Free Software Act" would be 1500 pages long and the GPL
would be destroyed in all but name.

IANAL but the GPL is a brilliant piece of work, and is doing just what it's
supposed to do. Leave it alone, unless someone actually pokes a hole in it, and
in that case patch it.

Write the code, dammit, write the code.

[ Reply to This | # ]

The Free Software Act
Authored by: wvhillbilly on Saturday, December 20 2003 @ 11:59 AM EST
I am all for anything that will promote and help the cause of free software.
However I find myself a bit concerned about section 4, about protection from
liability for unintended license violation or infringement. As it stands I see
this as possibly open to abuse. If there is to be such a provision included in
this, I believe it should be conditioned on removal of the infringing code, or
correcting whatever caused the infringement or violation in the first place.
The last thing the F/OSS community needs is anything that leaves it open to
accusations of having a license to steal, whether such accusations have any
basis in fact or not.

I'm no lawyer or legal expert, just a concerned user.


---
What goes around comes around, and it grows as it goes.

[ Reply to This | # ]

The Free Software Act
Authored by: k12linux on Saturday, December 20 2003 @ 12:18 PM EST
This feels too much like a knee-jerk reaction to what is going on with SCO. I
haven't actually read over the GPL in a while so I took another look. I notice
that it explicity forbids inclusion of patented software unless it is expressly
licensed for free use.

I don't think the answer is to make a law that basically says it's ok to
include proprietary licensed code as long as it's an accident. I don't even
think this is the biggest risk. A bigger risk is software patents which can
prevent inclusion of "ideas" instead of stealing code. It's easy
to not copy code line by line into an OSS project. It's much harder to not
have the same idea or process as someone else.

The current environment with software patents (at least in the US) requires
every OSS programmer to know about every patent issued. That's rediculous. If
an idea or process is so obvious that someone can come up with it independantly
it shouldn't be protected. Even if it wouldn't hold up in court, FOSS
developers can't afford to take it to court in the first place.

If you want to make a law to protect against what SCO is doing now, make one
that would require someone claiming code copying to identify the code which is
in violation. Perhaps even require them to show their own code to developers
with an NDA that doesn't prevent them from removing the infringing code.

That, IMHO, would be more useful. It's also hard for proprietary vendors to
fight or lobby against. I mean, how could they argue that protecting them
against code theft is not in their best interests? It wouldn't even prevent
them for going after the person who "stole" the code for damages.

Or maybe a law that limits liability to the person who actually submits tainted
code and not to the software users, maintainers, distributors, etc.

If IBM did indeed "borrow" code (I'm not inclined to believe they
did) then they are guilty of copyright infringement and it's not wrong to hold
them accountable. Everyone who uses or distributes Linux shouldn't have to
worry about the actions of one contributor.

Imagine that your community came together and built a home for a needy family,
One well meaning but misguided individual steals a light fixture and installs
it. The company it was stolen from freaks. Should everyone who worked on the
house be liable? How about the innocent family who moved in thinking it was now
*their* house? Maybe the person who was organizing the project should pay?

No.. the guy who stole the light should be liable. Now, the company may be
willing to be jerks and require your group to replace the light, but it
shouldn't have more recourse than that against anyone but the guy who stole
it.

Now think about that in the SCO context. In that case, it would be like a
company coming and saying "We sell doors, windows, siding, light fixtures
and plumbing supplies. Someone stole our stuff and put it in the house. Well..
no, we won't tell you what was stolen. You need to just give us ownership of
the house and we'll charge rent to anyone who lives in it from now on."

Maybe my analogy is off, but looking at it in that light makes it look pretty
rediculous to me. That shouldn't be allowed when accusing OSS projects either,
IMHO.

</ramble>

---
- k12linux

[ Reply to This | # ]

The Free Software Act - Read it again
Authored by: Beyonder on Saturday, December 20 2003 @ 12:25 PM EST
I think you are all misreading this, and misunderstanding the GPL. I've read
every comment here, and it appears you're reading it a bit incorrectly, though
that's the wrong word. or maybe you're reading it in the wrong context, I
don't know.

First up: the GPL is a License (hence the "L" in the name!) it is
NOT a law, and not enforceable like a law. Yes, it is "on top" of
copyright law, but that in and of itself does not make the GPL as easy or as
simple to enforce.

example: a company breaks the GPL by distributing GPL code in their commercial
product, in fact, their product is 100% GPL, with edits to copyright notices,
authors, etc. Who goes after them? The author? Like he has money to do this!

better example: SCO. Every author individually has to go after them, and get
bogged down in court over the legality of the GPL (which the courts are still
getting used to). Not saying it wouldn't be upheld, but hey, who has that kind
of money or time?

My point is, when a big corporation decides to violate copyright law, we have
the SPA and BSA and other people to go after them on behalf of the authors. They
can't do this with "just" a GPL violation. If the GPL was
transformed into this sort of "open software" law, then they could.
Not saying get rid of the GPL, just make it an option. things that make you go
"hmmmm" :)

and I think most (if not all) of you are missing the other point too, by about a
mile, if not more. I see so many comments saying "free software"
authors would NOT want the GPL license or "open source" new
"law" applied...

Why the hell not? You're publishing your software "free" anyhow!
It's out there! Wouldn't you like more "control" of it? I mean,
sure if you don't care if people "steal" it (how you steal
"free" software will not be a subject for this discussion) and use
the code for their own purposes any way they see fit, but wouldn't you like to
see some of that come back to you somehow?

If it's totally free, a company can make your stuff into a commercial
application, and make millions. Neither you, nor the community ever gets to see
this happen, or enjoy any of the fruits of your creation. Whereas, if it were
published under some "open software" law, they'd have to give the
community back the modifcations they made. by law.

If you see my point, and yes, it gets messy, so let's not get tangled up in
semantics here please.

Laws are easier to enforce than licenses, from a legal standpoint, which is part
of what this is all about.
IANAL, but I think this statement holds very true...

[ Reply to This | # ]

The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 12:33 PM EST
I agree with many of the concerns already expressed over the nature of this
effort, the vagueness of the wording, and the danger of tampering with or
attempting to supercede the GPL and existing copyright law. I also have a
specific problem with the word "should", especially here:

1.f(iii) Authorship should always be correctly attributed.

It is not specified how strong this "should" is. Is it ok if 90% of
the actual contributors are listed? 75%? Where's the line? What if a
non-contributor is listed as a contributor? More importantly, what happens if
correct attribution is not made? At the least there would need to be a statement
that incorrect attribution is /not/ grounds for "un-opening"
software or allowing a scojacking of it.

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The Free Software Act
Authored by: jee on Saturday, December 20 2003 @ 12:41 PM EST

IANAL (as usual),

Why? What are the problems that the proposed act will deal with? I do not think that the arguments above are good reasons for this kind of new law, even given that the problems noted in the other comments are adressed.

"Free software relies for its protection on the legislative regime tailored for proprietary software. [...] use of copyright and licenses to achieve the opposite of what these were designed [...]"

Maybe, though see for example this artikle here on groklaw. However, I do not see the problem.

"The GNU GPL especially is the subject of many attacks, ranging from descriptions of it as a 'cancer' to the more recent and, indeed, serious SCO v IBM case which has tried to find a legal premise on which to shake its hegemony."

You cannot make laws agains FUD (can you? ;-). The SCO attempts at FUD-by-law are well dissected here by now and not a problem with the current laws as much as with a suicidal company.

Furthermore found this artikel with some more arguments from Maureen O'Sullivan as to why this type of legislation is needed.

"If such as law is not passed, and the GNU GPL is successfully challenged in court (this could happen anywhere in the world), it could have a devastating effect on Linux or GNU/Linux and the FLOSS community. It would mean that proprietary software companies could come along and take any of this code, embrace and extend it and create a new proprietary standard."

Nobody is taking the code. For example here the situation is descibed: without the GPL there is no legal way to distribute the product or code.

"Unfortunately, the GNU GPL is on somewhat shaky ground legally."

Cannot really comment, except to note that not all that many people seems to agree with this.

"commons do not survive because people abuse them"

Code licensed under the GPL is not strictly a commons: the license guarantees the availability of the code. BSD licensed code is more like a commons in this (you can take something out without giving anything back), however this is a feature not a bug, those who like that license tell me.

I do not see the problem. Please enlighten me. If one were to look for something to fight, try: the us patent system, DMCA type restrictions on "circumvention" devices, etc.

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Good idea gone bad
Authored by: rand on Saturday, December 20 2003 @ 01:05 PM EST
How many ways wrong?

Well, it looks like a solution to a problem that doesn't exist.

And to me it reads more like a mainfesto than an act-at-law.

And, if you really want your software to be free, the entire thing could be replaced with

"This software and documentation is hereby released to the Public Domain by its copyright owner, John Doe."

(Due at a party; more later, I guess.)

---
The Wright brothers were not the first to fly an aircraft...they were the first to LAND an aircraft. (IANAL and whatever)

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The Free Software Act
Authored by: richardpitt on Saturday, December 20 2003 @ 01:29 PM EST
Recognizing that this is the beginning of such a movement, I find many of the comments echo my concerns - trumping the current GPL being one of them.

So let's look at this from the point of view of suggesting what we might like to see in such a multi-jurisdictional (i.e. many countries) "law" - maybe a "treaty" instead??? Or a section (a la IP section proposed in the FTAA that seems to be hated by everyone but the US?)

I see that there are a number of concerns this document seems to want to address:
- software patents and the liabilities they can bring
- business process patents for the same reason
- inclusion of proprietary code inadvertently
- violation of other software copyright

The next piece (6) is crucial - trumping other jurisdictions' copyright laws!

Instead of drafting this as a law which must then be passed by many legeslatures, it should probably be drafted as a treaty which sticks to dealing with FLOSS (Free/Libre Open Source Software)

It should look like copyright law - but specify that it only deals with materials that have been licensed under one of the various open source licenses (and maybe define the terms used in these and what minimum constitutes such a license)

It should stipulate the actions that will be taken to mitigate any inadvertencies covered by the (4) exemptions section - and that if the transgressor fails to mitigate (and any subsequent holders of the code fail to mitigate their copies) that there be some schedule of penalties that can be applied by the offended party - mandated royalty amounts, leave to sue, etc. with time frames of reasonable length.

These are the domains of law that I'd like to see addressed. This would level the international playing field by limiting the application of the US's software/business process patents and litigious demeanor and it would also address the concerns I have of the EU and other major bodies drafting their own brand of creative interference under the influence of money from parties who think thier own ox is being gored.

Anyway - the fact that someone is thinking about the problem is in itself a good start - let's try to come up with something that works as well as the GPL LGPL BSD, etc. have to date - but note that doing something in haste is not necessary since we already have many of the options such a treaty/law would codify.

We have the fact that if SCO doesn't allow the Linux community the information on what has been copied and allow us to remove the offending code, that damages (if any) are not increasing during this time (I forget the actual legal terms since IANAL)

We have the fact that SCO has already violated the terms of the GPL and are liable to all the Linux authors for damages if/when.

And we have a community of the World already - despite the physical boundaries and political boundaries - and nothing can take that away from us.

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The GPL is like a condom
Authored by: John Goodwin on Saturday, December 20 2003 @ 01:44 PM EST

You are allowed to share software without it, but if you share with strangers,
it offers some protection.

The problem with a "legal regime" for free software is that it
institutionalizes rights (to share ideas, software, business processes) that we
already have. Not one thing listed as a "right" is something I need
to be granted--it already exists as part of the social fabric, the default
assumption about what I can do in the absence of positive law. I don't need
the GPL either. What I get from the GPL is assurance of the author's intent to
share when I don't personally know the author--it extends the boundaries of
social trust and thus is a net creator of social capital. This law is not.

There is a tension in the proposed law between the rights of the end user and
distributors, and the author, which is not addressed. The GPL addresses this
tension by a grant or license from the author that gives up, essentially, all of
the author's right in return for a promise to propagate the author's
philosophy of sharing. This is a fair trade if you believe in Stallman's
philosophy of sharing. If what you believe in is making money off your ideas,
it is not a deal you want. The GPL lets people who want to share, share. Those
who don't aren't forced to.

Open Source parasitizes this idea by making as much GPL software LGPL or
equivalent. It's notion of freedom is not "freedom to share" but
"freedom to share or freedom to profit from others sharing, if I
choose". That is a greater freedom, but also a more socially destructive
one--it leads to Enterprise Linux and SCO trials both, quite naturally.

Institutionalizing a regime of "Software Sharing" and giving it
State sanction is a bad idea. Let's compare it to sex and marriage. Sex often
results in children. Both parents and the State have an interest in the welfare
of children. So the institution of marriage is justified on the basis of this
interest--at quite a cost, though, to freedom. If you look at marriage law over
the last millenium, about 90% of it has been blown away. As a society, we
hardly have any marriage law left at all--the part that was blown away had to do
with "parent's rights". (Read Bracton, 14th century but he wrote
English as well as Latin and it's readable). We no longer speak of a parent's
right to "sell a marriage" (the contractual collection of profits
associated with the transaction) to a third party. We like it that way. It
took centuries of social change, including both a Reformation, two Civil Wars,
and two Revolutions to get that way.

It will take centuries to undo bad software law too. Our first cut will be
about property rights. Author's rights vs. user's rights. We are not used to
the fact that software embodies mathematical ideas (as in science), expressive
art, and control of material or business process. That's quite a package!

The real battle is over whether I, getting my hands on somebody's source code,
have the right to do something with it the author might not like. In the sense
of Natural Law, I can do anything I like. I have the *capability* naturally, of
trampling over all others' rights--information wants to be free. Only coercive
force and extreme monitoring, or penalties built into social trust relationships
("We don't do business with thieves, Mr. Goodwin."), can stop me.
Stopping me from stealing software is like stopping children who want to
"get married" from marrying. Parents can try, but over centuries
that project *will* fail. So will stopping me from stealing digital
information.

Anyone who has ever been the least bit inclined to say or think "for
centuries, marriage was an institution that oppressed women in favor of men, and
children in favor of family for clan" should think twice about
institutionalized free software. The only thing laws like this can do is
institutionalize property "rights" that are against the flow of
nature. We already have perfect freedom--only the State's will to enforce some
other regime will prevent us from exercising that right. Obviously, the State
is quite motivated to do so, like all governments faced with unstoppable social
change. It will probably take revolutions and battles before nature takes its
course.

Here is the lesson: the legal deal you get *before* the revolution is never
good. The State (and its citizens) merely want to protect the status quo. The
status quo cannot be protected, so any protections are, in the long run,
something you have to dismantle anyway.

What about "author's rights"? That's a bargain--it should be
covered by a legislative deal. Copyrights should expire one day. In nature, if
an author distributes source code, it's gone and out of his control. Any
unnatural rights he gets back after that deed should be very limited.

Strategically, what do free software advocates have to gain from a "Free
Software" law. Nothing at all. Open Source advocates? They have a
flawed paradigm which depends, intrinsically, on exploiting the software sharing
of others. Proprietary software is nothing but a government granted monopoly
and can only survive by legal sanction and illegal business actions. The
digital revolution has proceeded far enough that the temporary money to be made
is drying up, and the ratio of coercion per exploitation achieved is going
up--bad social cost ratio.

What's in it for legal tinkering and "bills of rights" or metalaw
for Free Software? Nothing. You can't legislate nature. Nature allows us to
share and cooperate already. Only governments and business will stop us, if
they can. Why give them a stick to beat us with or a bone to fight over?

Final thought: what is that provision about making the license into a contract?
That seems an extraordinarily bad idea.

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OT: Free software to aid poor doctors
Authored by: eamacnaghten on Saturday, December 20 2003 @ 02:25 PM EST
Very off topic I am afraid, but maybe of interest here..

http://news.bbc.co.uk/1 /hi/technology/3331739.stm

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Oh no! Not another Law!
Authored by: Jadeclaw on Saturday, December 20 2003 @ 02:33 PM EST
If they really want to protect Open Source,
then a. get rid of software patents,
b. get rid of the DMCA,
and c. amend or modify procedural regulations and laws,
that makes it easier for a small copyright holders to go after big corporations
in copyright infringement cases without risking his financial existence.
Everything else is well covered by the GPL and other licenses.



---
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include('IANAL.php');
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My Critque
Authored by: Anonymous on Saturday, December 20 2003 @ 02:54 PM EST
Hullo, Well, I'm not sure I much like the Act in it's current form, but it is, as you say, embryonic, so here's my feedback. . . NOTE, I am not a lawyer, but I kind of have an idea of how lawyers think, and this proposed legislation, in it's current form, has some truck-sized holes, I think. Ambiguities. The following are not in order of appearance in the article, but just in the order that I decided to deal with them:
I.
2. Distributors of free software, whether in its original, copied or modified form, when distributing the program, may not restrict any of the rights in section 1. 3. A charge may be made for the program, providing that all rights in section 1 are preserved.

Remember, every law is interpreted by the courts primarily based upon what it actually SAYS as opposed to what the intent is.

Points 2 and 3, quoted above, seems pretty strong to imply that you can't change the terms of the license on any modifications/derrivative works. Now granted, a derrivative work and modification might be viewed as two seperate things in copyright law (maybe depending on how much you change/add?). But, generally, this says that if someone takes your code and modifies it, they have to redistribute it with the same 'rights' granted to the people you distribute to.

Whether this is good or bad depends on who you talk to, but this sure sounds like encoding the GPL/copyleft into the law - something the drafters say they don't intend to do. So, these clauses need to be struck.

Or perhaps modified - "2. Distributors of free software, whether in its original, copied or modified form, when distributing the program, may not restrict any of the rights in section 1 in order to retain the legal protections granted by this Act. If the copyright license to the original work permits re-licensing of the software, Distributors may restrict the rights in section 1, but their distribution under such license will no longer be categorized as "Free Software"".

Something like that.

Overall, it appears to me that the intention of the authors of this act is to grant protections (against liability) and rights (well primarily just the right to have standing to sue even though the party might not be the copyright holder, who would normally be the only party with standing to sue for copyright violations) to authors, users, distributers, et. al, of Free Software. What this proposed legislation needs to make clearer is that this Act does not intend to enforce or restrict copyright or licensing terms, but simply to provide legal protections to software that is distributed under a license that grants the aforementioned rights. As soon as software is NOT distributed with those rights, it no longer enjoys the protection offered to Free Software.


II.
(ii) Any user, copier, modifier, distributor or any other beneficiary of free software has standing to sue for any violation of this Act.

Umm, this is sticky, because, well, for any given violation, someone should only be able to be sued ONCE. Or have it rolled into a class-action type of suit if many parties are affected. While I like the general idea that anyone who is a user/developer/etc of Free Software potentially has the right to sue, there should be given some sort of preference. I.e. the copyright holder has first priority, distributor has second priority, users have 3rd priority. The courts should be able, at their discretion, to roll all the suits into a class-action where multiple parties have standing. Something like that. Again, I'm no lawyer. . . I just think this is common sense.


III.
(a) When any free software programmer, while engaged in free software development, inadvertently violates a proprietary software licence, s/he will be exempt from any liability whatsoever.

(b) When any free software programmer, while engaged in free software development, inadvertently violates a software copyright, s/he will be exempt from any liability whatsoever.

Umm, wow. That's a big grant right there. First, how do you prove intent? This looks a lot like a free grant to violate software copyright and then just say 'whoops'. I'm pretty sure that is not the drafters' intention (again, I can't prove intent but I'll give you the benefit of the doubt hehe). This is just far too broad unfortunately. I'm confident the US congress wouldn't adopt that wording, and pretty sure other legislative bodies would probably be reluctant to adopt the act with that in there also. Is there some way we can limit liability, without giving carte-blanche indemnity to developers? Because some people *WOULD* abuse such indemnity. Anyhow, the broad indemnity you give to copyright violaters with this clause would put every proprietary software company in the world in opposition to this proposed legislation.

Personally I would much rather see limitations on software patent violations for Free Software developers. As a Computer Science student trying to get into software development, I'm TERRIFIED by software patents. There has been such a software patent land-rush in the last 20 years that almost any program I could think of making will probably violate multiple software patents. There's no way I can get around it, as far as I can see.

Anyhow, you need to rethink these clauses - this act will not be enacted (at least not widely) with those in it. Brainstorming here - the problem, as I see it, is that a free software developer might accidentally accept a contribution from someone else, and said contribution contains a third party's intellectual property and infringes that third party's rights. Of course, the first step is for the third party to notify the program maintainer(s) stating what code is infringing their rights, and the maintainers then have an obligation to remove the code in question. But the next question is, damages? The third party's rights have already been infringed. . . how do you determine fair damages, and who is liable to pay those damages? I would almost say that this legislation needs to include in it the creation of some sort of trust-fund that holds money on behalf of free-software users and developers, and that is used to pay out damages to parties who's intellectual property was infringed.

Perhaps the time has come for users of free software to be legally obligated to register their copies of free software? Then should courts decide that damages are due, users of the software could pay a small fee to the trust-fund, which would be aggregated and payed out to the wronged party? This would potentially do two things: allow for a reasonable accounting of just how many people are actually using the infringing code, so that reasonable damages can be calculated by the courts, and secondly, it would then allow the users of the software to be notified of their legal responsibilities. I can already hear the uproar this suggestion will cause, but people, let's face facts: if we are going to get industry and government to truly accept free software, free software developers and users have to act in a responsible fashion to ensure that people don't play fast-and-loose with the law. Ok, so the big problem is, what about people who don't register their copies, in order to make an end-run around the law? Well, allow for stiff penalties against users of free software that don't register their copies.

I really don't have the answers. I suppose the above is possibly a bad idea, but the Free Software community has got to develop some answers to give to courts and legislatures for how we plan to effectively deal with copyright violations. It's not an easy problem. Because once the code is out there, it is kind of like Pandora's Box - how do you 'undo' the violation? Even if future versions of the software don't have the violations, current versions are already out 'in the wild.'

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  • My Critque - Authored by: Anonymous on Saturday, December 20 2003 @ 04:53 PM EST
  • My Critque - Authored by: Anonymous on Sunday, December 21 2003 @ 12:03 AM EST
A seperate act not needed
Authored by: jaydee on Saturday, December 20 2003 @ 03:00 PM EST
Having read through many of the comments I tend to agree that this draft is far
from ideal. Copyright law was not designed to protect proprietary software, it
was designed to protect copyright holders.

I think a modification of copyright law to cover free software may be
appropriate.

IANAL

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The Free Software Act - misses the problem
Authored by: Eric E Johnson on Saturday, December 20 2003 @ 04:01 PM EST

I've not read all of the responses carefully, but I concur with the overwhelming number that disagree with the implementation of this proposal, if not also the premise.

As the Creative Commons shows, the issues here are far deeper than just software related issues. Consider sites like wikipedia.org, which are built by the same sort of group constructive effort. The variety of licenses available at Creative Commons, and enumerated at Sourceforge.net, for example, show that the mere matter of categorizing the variety of licenses that authors and contributors want to choose from is a difficult problem.

It also strikes me as a tad naive to believe that constructing a new law or new treaty (leading to new laws) would ever reduce lawsuits. As I think others have said, in many ways the SCO lawsuit is a very good thing for the GPL (and other open source software licenses), it is not clear that we necessarily would want to prevent such lawsuits. The results of most lawsuits tend to clarify and strengthen the basis of law on which the cases are won. I'm assuming in this case the GPL will come out on top. Even if the GPL doesn't not come out of this case 100% unaffected, chances are it will be strengthened, not weakened, and future challenges will be that much more difficult.

If there is to be any international framework, I see the goal as one of strengthening the minimal jursidictional expectations for a variety of open source licenses (GPL, LGPL, APL, NPL, ...), as well as proprietary licenses. Establish the legitimacy of a spectrum of choices, but make sure that particular choices along that spectrum are legally supported and enforceable. Especially since the law still seems to be enforced based at least somewhat on where you're standing, rather than being turned over to an international court, the law in each jurisdiction matters. It seems like a framework shouldn't be limited to software, either, but include other digital works, such as books, music, pictures, and even encyclopedias (back to wikipedia again). At the same time, the central idea should be to strike a balance, so that consumers of copyright material cannot be locked out, such as with DMCA like provisions that effectively undermine copyright law by usurping the consumers ability to make "fair use" of content. Nor should product licenses (click-wrap) be allowed to take away rights and privileges that the customer otherwise should have, such as the ability to talk about the material, return it if defective, or possibly (gasp!) even sue (under certain conditions, particularly if money changes hands).

Ignorning, for the moment, all the other complaints here that seem to rip the proposal to shreds, by focusing altogether too narrowly on the "free" end of the copyright norms spectrum, this "Free Software Act" ignores all the interesting and potentially fascinating compromises that could rein in the extremes of the existing proprietary copyright framework. Instead, by giving other countries some incentive to enforce stronger minimums (legal frameworks for Open Source), countries like the US would also have incentive to compromise on more extreme positions, like ridiculously long copyright terms and bizarre enforcement regimes like the DMCA.

P.S. I've been reading this site for months, and finally found myself with time and incentive to contribute back to the community. Many thanks wonderful insight into the SCO case.

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The Free Software Act
Authored by: RealProgrammer on Saturday, December 20 2003 @ 04:05 PM EST
I think this is a particularly bad idea, and I hope it goes away before anyone
else sees it.

Copyrights are the general mechanism. They protect the author and his
assignees. If sometimes the author is a jerk or his assignees are jerks, those
are the breaks.

The proposal allows anyone to "inadvertently" steal copyrighted
work. That's so obviously abusable that it would result in the total
destruction of software copyrights. The fact that the authors of the
"Act" put copyright theft immunity in there shows me their true
motives: destruction of copyrights for software.

I'm an Open Source advocate; just think how it will play with people who sell
closed software!

Like it or not, you can't force people to share. You can encourage, reward,
and show why it's good for them to share, but you can't force it. It's been
tried.

The draft Act puports to put free software on equal footing with proprietary
software, but it's clear intent is to do so by assimilation.


---
(I'm not a lawyer, but I am a literate citizen)

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Protecting Free software...
Authored by: Anonymous on Saturday, December 20 2003 @ 04:07 PM EST
means protecting the little guy.

I agree that blanket exemption from liability is a bad idea, but programmers who
*don't* have a multimillion dollar company backing them could use a legal leg
up in defending against litigation, harassment, and intimidation that are the
hallmark of companies like Micro$oft and IBM.

We see some good thoughts on this. I especially like the ideas proposed in the
"treaty" post.

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Dealing with software and process patents
Authored by: Thomas Frayne on Saturday, December 20 2003 @ 05:23 PM EST


I agree with the views expressed above by k12linux on Saturday, December 20 2003 @ 12:18 PM EST and by richardpitt on Saturday, December 20 2003 @ 01:29 PM EST.

The FSA's provisions related to copyright seem poorly thought out, give a right to steal, will be violiently opposed, and try to solve a non-existent problem with copyrights. However, there is a real problem related to patents that might be good to address via some varient of the FSA.

I was dismayed to learn that IBM was paying royalties to CA for SMP patents. If CA decided to enforce those patents agains Linux, it could spell trouble: a costly defense, or a still more costly effort to replace SMP support by non-infringing support.

I think that the FSA should be stripped down to provisions related to patents, and should balance the rights of patent holders with those of free software users, free software developers, and free software distributors, where the term "free software" applies to licensed programs, and includes GPL'd, BSD'd; the term also applies to software in the public domain.

Patent owners should retain their rights to prevent anyone from using their patented ideas, and to agree to the ideas' use on payment of a royalty. However, their rights to enforcement against users and developers of free software violating the patents should be limited to notify the users and developers to stop using or developing the infringing software, or to remove the infringing parts, and damages will accrue only if the infringers persist after explicit notification, personally, or by legal publication.

The patent owners rights to enforce against distributors of free software are the same, except that, if the patent owner can prove beyond a reasonable doubt that the infringement was willful, then damages for prior distribution can be collected. Note that this is a stricter requirement than is usually applied in civil cases.

A developer of free software benefits from a statute of limitations that begins running when the developer publishes the source in a way that still needs to be specified. If the program infringes on a patent, the patent holder must notify the developer before the statute of limitations expires in order to enforce the patent against any user or distributor of the free program.

I think that this modified FSA would have a much greater chance of passage, because the rights it removes from patent holders are limited to the interaction with free software, and are rights that should not have been granted to software patent holders in the first place.

Even this limited FSA, or a variant would take a long time to pass in the US, and a longer time to pass as a world-wide treaty. Free software needs protection against patent claims NOW.

I suggested earlier that the developers of free software should patent their ideas, and that a patent portfolio should be built for defense of patent claims against free software. This portfolio should be held in trust for the users, developers, and distributors of free software, and should be used by the trustee to require that anyone enforcing a copyright, patent, or trade secret claim against free software does not infringe any of the patents in the portfolio.

A large patent portfolio would ensure that very few patent holders would dare to try to enforce their patents against free software. These few would be limited to reasonable enforcement by the modified FSA.

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The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 06:05 PM EST
(ii) Any user, copier, modifier, distributor or any other beneficiary of free software has standing to sue for any violation of this Act.

The granting of so many people standing to sue means there will be more, not fewer, lawsuits, which would be a huge impediment for businesses and other litigation targets to using it.

Tim

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The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 06:40 PM EST
I find this part quite bothersom:

4. Exemptions from liability: (a) When any free software programmer, while engaged in free software development, inadvertently violates a proprietary software licence, s/he will be exempt from any liability whatsoever.

(b) When any free software programmer, while engaged in free software development, inadvertently violates a software copyright, s/he will be exempt from any liability whatsoever.

It's almost like saying, yes open source developers do steal proprietary code, but if you can't prove it's intentional, then it's o.k.

Why should open source developers be exempt, while proprietary developers aren't?

They should recognize the weakness of this document, and poll it out, or fix it. No one will ever enact such silleness. We need to protext open source developers' rights, not exempt them from ethical and legal responsibility. It's really embarrasing to see such an attempt to circumvent copyright laws by someone claiming to be from the open source community. It's like Darl is infiltrating the movement, to come up with additional FUD material for SCO!!

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Problems and solutions
Authored by: Anonymous on Saturday, December 20 2003 @ 06:41 PM EST
As written, this bill is a hazard for the reasons others have described above -- it conflates "Free Software" with a list of privileges akin to the GPL; it subordinates existing copyrights to the advancement of this limited view of "Free Software"; and it doesn't make provision for differences among existing licenses.

Its harmful or prejudicial provisions should be dropped. Its useful provisions should be separated and applied to different bodies of law, as follows.

The warranty provision is a matter of commercial code, not copyright. It would be dangerous to exempt any product given away for free from all implied warranties, as this would allow marketers of loss-leader products to harm their customers without consequence. A more useful provision would be to exempt from warranties any software which is offered in a way which is:

  1. not commercial -- that is, neither a sale nor linked to a sale;
  2. source-available -- that is, in source code form or alongside the availability of source code, as when source files are offered from the same site as binary RPMs or DEBs;
  3. publicly redistributable -- that is, the author or distributor allows members of the general public to further distribute and modify the software without further permission, possibly under the condition that the modified version be likewise publicly redistributable. (This includes both BSD and GPL.)
This allows those who buy a copy of Red Hat Linux (e.g.) to hold the vendor responsible for defects under the same terms that buyers of any other product could hold the vendor responsible -- while protecting research projects and community-based projects from legal threat from disgruntled users.

Copyright provisions to protect free software can do two things. First, they can clarify the copyright on user contributions (such as patches) to existing free-software projects. Second, they can strengthen the ability of free-software creators and contributors to enforce their copyright against violators -- particularly commercial vendors who incorporate free software into their products without acknowledgment or license compliance.

On the matter of user contributions: A useful provision would be that a person who creates a patch to a piece of free software and transmits that patch to the software maintainer shall -- unless he states otherwise -- be understood to have granted the maintainer permission to redistribute that patch as part of the software product, under the same terms that the patch creator received it. The original creator does not have the right (unless granted) to change those terms when distributing the patched software.

On the matter of commercial license violators: A useful provision would be that any copyright holder of a piece of publicly redistributable software, which software is distributed commercially by a vendor in violation of its license, has the right to sue for the profits made thereby -- in addition to statutory damages if the copyright is registered, and injunction against further violation. In the case of a piece of software created by aggregating many contributions, the aggregator shall be due one-quarter of the profit, and the contributors (including the aggregator) split the remainder according to their contributions.

Thus (for instance) a vendor of embedded wireless hubs who illicitly incorporates the Linux kernel into its product, shall be liable to Linus Torvalds for at least 25% of the profit made thereby, and to the remaining kernel contributors for the rest.

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The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 06:43 PM EST
I found this a couple of months ago. After reading the proposed act I decided to
ignore it, and hope it would go away. I guess it hasn't.

The proposed act as written looks like a godsend for those who oppose free
software in any form. It's so patently unfair to those who do not write free
software (Microsoft, IBM, Everett Kaser, Nels Anderson et al) that it would do
more damage than good. In simple terms it's our equivalent of the Digital
Millenium Copyright Act. The DMCA has done more damage to the recording and
movie industries since it was enacted than ANY OTHER PIECE OF LEGISLATION.

To take a quote from Shakespear, "Those whom the gods would destroy they
first make mad."

Another quote comes to mind - "Power corrupts - Absolute power corrupts
absolutely."

As the free/open source/shared source/creative commons community grows stronger
we have to remember our origins, and that "FREEDOM" is important to
us. Maureen's proposed liscense would strip freedom from a company that had
inadvertantly included free software code in their product, the freedom to
remove that code and to replace it with clean code - instead by law they'd have
to release their code as soon as they discovered the error.

Without a major overhaul this proposal should be scrapped.

Wayne aka The Mad Hatter

Telnet hatter.twgs.org

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The Free Software Act
Authored by: Anonymous on Saturday, December 20 2003 @ 07:57 PM EST

4. Exemptions from liability:

(a) When any free software programmer, while engaged in free software development, inadvertently violates a proprietary software licence, s/he will be exempt from any liability whatsoever.
(b) When any free software programmer, while engaged in free software development, inadvertently violates a software copyright, s/he will be exempt from any liability whatsoever.

You're kidding me right? Excempt from liability? If someone inadvertently violates someone elses rights, they are given the opportunity to make it right as soon as they are aware of it. If they fail to make it right (usually, in this case, remove the code) they are liable. I know RMS had an input on this thing, but this is going too far.... Even for him.

What is being said here is that its alright to steal someone elses work in some way, as long as you didn't realise you were stealing it. These two clauses need to be seriously reconsidered.

I write software I release under the GPL, but even I couldn't handle this kind of free-for-all permissions. Sometimes we seem to be swinging the door too far in the opposite direction and all we'll get for it is a huge amount of resistance and back pressure from the proprietary developers. Remember, they have more financial resources to block this kind of act if it goes too far.

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The Free Software Act
Authored by: pooky on Saturday, December 20 2003 @ 08:25 PM EST
IMHO, this is the wrong approach to take to protect “free software” and open
source. Adding another law when plenty of laws exist is not going to solve any
problems, it will simply create more of them.

This seems to be intended to only cover “software licensed under free software
licenses”, this does not include freeware or public domain software.

Any software licensed in the manner above is already protected by copyright and
there are plenty of international treaties that already exist to protect the
rights of the authors of creative works. We don’t need another law or
international agreement to agree upon what has already been agreed to with
respect to copyrighted works. Free software licensed under a free software
license, like the GPL, which intends for the author to retain ownership and
defines the work is copyrighted, is already protected.

There is most likely no clean ultimate solution to fend-off attacks like SCOG’s,
and as annoying as it may be, cases like SCO v IBM are going to set some legal
precedent so the next case and any that follow will not be as drawn out nor will
they present numerous questions to be answered and clarified by courts. SCO v
IBM will ultimately, IMHO, be a good thing for the Open Source movement, as it
will begin establishing case law with regards to the legality and liabilities of
freely licensed software.

The nature of the legal system today is that lawyers argue the finest points of
law in front of courts in attempts to win litigation. We live in a time where,
unfortunately, litigating as an annoyance or a financial drain as a tactic has
become commonplace and a tool to achieve a goal, not so much as to seek justice.
As long as the US court system and other’s allow such suits to be possible
there will never be an end to cases that get filed solely to push the defendant
to take an action to make the case go away. Defendants enable this behavior by
capitulating, and this self-fulfilling prophecy has now made an environment
where many defendants have no choice because they cannot afford the expense of a
lengthy case. US Courts are, unfortunately, a place where those who have the
money have all the advantage.

I will state here for the record, that while I personally believe the SCO v IBM
case is unfounded, if IBM did actually misuse SCOG’s code then a) IBM should be
held liable for it and punished accordingly b) the rest of the community
involved with the tainted product should be given an opportunity to remedy the
problem and correct the infringement so the product can continue to be used in
some form.

So the bottom line is I don’t see what this type of legislation hopes to
accomplish other than re-iterating what is already there in law.

-pooky


---
IANAL, etc...

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Bad Law
Authored by: Ruidh on Saturday, December 20 2003 @ 08:49 PM EST
If it ain't broke don't fix it.

If you introduce something -- even something that most free software developers
and users buy into -- in a legislature what comes out may be nothing like what
goes in. And you can be sure that there will be big money (read Microsoft)
gunning to have the Act gutted or, worse yet, turned hostile to free software.

One one potential problem with the GPL is the disclaimer of warranties. As
we've seen here on Groklaw, the GPL is a license, not a contract. Some lawyers
have raised caution that the disclaimer of warranties needs a sign of assent
from the user to be valid. But, there's nothing else in the GPL which either
implicates a user or requires her assent.

If there's anything that a legislature can do to to improve the GPL it is to
make sure the disclaimer of warranty for free software is viable. Other than
that, Copyright Law is quite powerful enough to protect the developers and users
of free software.

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  • Bad Law - Authored by: Anonymous on Sunday, December 21 2003 @ 03:21 AM EST
Att'n Diogenes and Y! SCOXers:
Authored by: Anonymous on Saturday, December 20 2003 @ 08:56 PM EST
SCO still distributes 2.4.13-21 source RPMS.

CSSA-2003-020.0

Do they think we're Darls or what?

I know the other too.

Links grom current were there till latest "DoS".

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grossly unfair
Authored by: Anonymous on Sunday, December 21 2003 @ 12:36 PM EST
My favorite: free software developers are exempt from any liability if they
(inadvertantly) violate any proprietary software provisions. But if any
proprietary software developer violates the provisions of this act (no mention
of inadvertantly), they lose the rights to their source.

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  • grossly unfair - Authored by: Anonymous on Sunday, December 21 2003 @ 02:27 PM EST
Was RMS really involved in this?
Authored by: ctrawick on Sunday, December 21 2003 @ 02:28 PM EST
I keep seeing references to RMS in these comments. Was he really involved in
writing this "act"? That's hard to believe, IMHO. He might have
said "a law supporting copyleft is a good idea" or something
similar, but I seriously doubt that the architect of the GPL (a concise,
complete, and bulletproof document) wrote one line of the act (anything but
concise, complete, or bulletproof).

Or am I missing something?

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The Free Software Act
Authored by: Anonymous on Sunday, December 21 2003 @ 03:41 PM EST

Hum, and here I thought it was Shakespear. Of course the guy is so quoteable, he
get's blamed for everything...

Wayne aka The Mad Hatter

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Oh no! The government want's to help us!
Authored by: fdstone on Sunday, December 21 2003 @ 08:55 PM EST
Good things are going to get screwed up. We are doomed!

-------------------------------------------------------
"While looking for a book yesterday at Barns & Nobels, I passed
through their 'evil person's' section. Oh, I mean their political
section."

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Why it is Needed, and why it Sucks
Authored by: dcs on Monday, December 22 2003 @ 01:37 PM EST
The reason copyright law is not enough is article 4 of this act. In particular,
the disclaimer of warranties and liabilities protected by 4(c) is void in many
countries law. And then there is the very real issue of software patents,
addressed in 4(a). These are the strong points. As for disclaimer because of
inadvertent copyright infringment, I don't actually like it.

The reason why it sucks is because it only protects GPL-like licenses. I see
some people arguing that no one is forcing people to relicense BSD code under
it, and others claiming that BSD (and similar) licenses don't need the
protection.

To that I say: bullshit. The reason why these licenses need such protection is
because, not making any money out of it, it becomes impossible for a developer
to deal with inadvertent patent infringment or damage resulting from software
failure. This affects ALL open source license, and it would be cheap to protect
GPL alone.


---
Daniel C. Sobral

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The Free Software Act
Authored by: Anonymous on Monday, December 22 2003 @ 06:09 PM EST
There may theoretically be sanctions for frivolous lawsuits in the US, but they
are so seldom imposed that they lack any meaningful deterrent value.

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Free Documentation
Authored by: Anonymous on Monday, December 22 2003 @ 07:14 PM EST
I've been thinking recently about the issues of free
documentation. Certain (supposedly) free software
organisations have been charging for manuals of late.

While it's normal and accepted for F/OSS organisations to
develop commercial support, etc, I think the basic use and
functions of software should be freely documented and
available for all potential users.

For me, free software is not just about access to source:
it is what I learned my skills with. I could not have
afforded commercial tools, and my other choices were
illegal software, or a lack of opportunities.

Without manuals, I think the free software option would
not have been useful to me, regardless of availability of
code.

In essence, I believe free software has traditionally
included manuals, and has traditionally been accessible to
the poorest in the computing world. I think this
tradition should be codified into the definition of free
software. This might be a good place to start.

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I don't like it
Authored by: Anonymous on Monday, December 22 2003 @ 09:25 PM EST
Lets open it up so everyone can sue everyone.

Any user, copier, modifier, distributor or any other beneficiary of free software has standing to sue for any violation of this Act.

Exemptions from liability:

Nice idea, but making one group safe isn't fair. Secondly how do you 'accidentally' infringe someones copyright?

Users ... are bound by the contractual conditions of any licence or licences which apply to the program or programs they use.

Excellent, lets give EULA force of law, and undo the freedom the GPL gives us

Sanctions, Forcing the opening of code is going to scare away more business. Two wrongs don't make a right.

I like the law today. Currently only someone who I wrong (or accused of) can sue me. I don't have to worry about unrelated third parties who have nothing to do with the transaction getting involved. I like that I don't need to agree to a contract to use GPL software. I like that I can license software and make requirements on how it is treated, it is mine.

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