LSM: Copyright, law and legal maintainability

Lecture of 11 July 2002 at LSM by Georg Greve.

I will talk about often neglected aspects: the legal side. I hope you'll understand it is important and should be taken care of.

Alternative title would be "What every hacker should know".

I'll talk about licenses, granting freedom, protecting freedom and destabilizing factors.

What is free software ? Free for freedom, not price. (List the four freedom). And freedom through copyright because copyright allows licensing and licensing grants freedom.

How licensing gives us freedom ? How does it work ? It has weak and strong points. What are they ?

Here are GNU GPL compatible licenses. There are three models : strong copyleft which vaccinates software, middle such as the LGPL, and the weak method that allow you to do whatever you want such as the BSD. All Free Software programs are in on of these areas.

How do licenses grant freedom ? Licenses do not exist in empty space. They refer to the legal system we live in. They are different from country to country but are vastly compatible. Licenses are always interpreted on the basis of the legal system. It is built by lawyers and politicians and influenced by lobbying. And legal systems are not static, they change.

Example from germany: it began with a worthy cause. Protect musicians from the record industry playing them dirty tricks. The goal with to arrange a situtation where do not have to sign "slavery" contracts. The publishers control the industry and force musicians to sign contracts that are bad for them. This fact was recognized and a professor of law started to write new laws to protect musicians.

The new law said that you should give adequate monetary compensation. Of course you also transfer rights when dealing with software. Free Software is considered as a gift because there is no money involved. But if it's a gift and rights are assigned to a company, under the new law, what is the adequate compensation ?

FSF Europe and iFROSS proposed a change of this law and it was changed according to the recommendations made in January 2002 and enacted in April 2002. Free Software is now safe and it shows that legal systems can be influenced.

We need to get in touch with the legal and political people. FSF Europe will keep doing it. However, no protection is ever perfect. We may not be always successfull. It is possible that changes will affect the legal status of Free Software. It is therefore essential to maintain the license. The possibility of re-licensing must be maintainted.

The licenses protecting freedom. Why copyleft ? Because those who do not value their freedom are bound to lose it. Attacks on freedom are usually based on legal proceedings. We need to defend ourselves when attacked. What should we do to defend ourselves ?

When someone violate licenses, it often is a mistake. The first thing you should do is to explain they did a mistake and show them how to fix it. When two companies are in conflict, we can help them settle the statement. Do they still infringe ? A lawyer can send them a letter. If it does not work, maybe a public statement would. Then, last resort is to go to court.

The reason for not making it public in the first place is that it's often a genuine mistake. You'll damage the image of the company and teach them nothing. Other companies will not come to you in the future.

Michael Opdenacker: when a company includes GNU GPL programs in their own program, are they willing to release their whole work under a Free Software license ?

Georg Greve: that's not what usually happens. It's worth asking them but if that is not successfull they can't distribute the program.

All this requires someone taken seriously who's willing and determined to go to court. The chances of success of next steps depends on how seriously the people dealing with the issue are taken. The infringer must know that. The FSF has been doing this for years.

Loïc Dachary: people must also be very aware that they can be forgiven for past mistakes if they do the right thing.

The destabilizing factor partly comes from the fact that Free Software destabilize the legal system. For example, dynamic linking was unknown when GPLv2 was written. We need to re-evaluate the licenses as the legal system evolves. The freedom to relicense is the legal equivalent of the freedom to improve the code.

A solution would be to have a globally active fiduciary because in the long term, if you lose the right to improve your code it does not matter how technically advanced.

The Fiduciary License Agreement (FLA) is in three parts. There is a transfert of exclusive exploitation rights (copyright), from the author to FSF Europe. The FSF Europe grants unlimited amount of single exploitation rights. The FSF Europe is only allowed to release Free Software.

The origins of copyright. It gave a limited monopoly to publishers. The first time authors had the right to hold copyright was in 1710. It is linked to "Droit d'auteur" and human rights philosophers. Copyright and Authorship right was split under the french revolution. This is specific to Europe and rights cannot be transfered completly (moral rights). In anglo-american laws, moral rights are not enforced. It was previously necessary (before 1978) in the US to register works.

The effect on FLA. Most agreements were written for US law and they aim at transfering everything. They are not invalid in Europe but if you transfert everything you don't go in details. In the US the fact that you don't specify exactly what you transfert and it works. In Europe it will be understood as transfert of exploitation rights. The court will always try to protect the author (question of human rights). The court might try to make the case that it was not the intention of the author that the software could be used in this way. Therefore fuzziness does not work in Europe.

The FLA will be released when it's ready (smile). Even when published, it will be open for review. What to look for in a fiduciary ? Which precautions against a takeover of the fiduciary by a third party ? What membership rules ? Does the fiduciary has legal expertise ? Is the fiduciary globaly active and get inputs from sources worldwide ? Is this fiduciary trying to act globaly alone or is it part of a network ? Are there a not-too-big number of partners ? Will the fiduciary be taken seriously on legal matters ?

Which fiduciary to choose ? Choose the fiduciary you prefer. It could be the FSF Europe. The FLA can be a useful reference. The FLA will be used by the FSF for European copyright assignments and Apache is interested by it. Whatever you do, do not ignore the issue of legal maintainability.

We learned other leasons. We have to raise our voices and make sure legislations are beneficial to us. We have to make sure someone ensures legal maintainability. We have to publicize the awareness for such issues.

Loïc Dachary: it would make more sense that all copyright assignments are assigned to the FSF. It would make it stronger instead of diluting copyright assignments among distinct entities.

Georg Greve: you don't want to put all eggs in the same basket.

Michael Opdenacker: what about liability ?

Georg Greve: it is an issue. In germany liability is strong. The waranty disclaimer is void in germany. In this case you get the default behaviour written in the law which is worse than what you could get if the waranty disclaimer was written in another way.

Loïc Dachary: Copyright assignements that do not contain anything regarding moral rights are valid in Europe. If it was not the case, all contracts involving copyright assignments in Europe would be void since I don't know of any that mention moral rights. That is not to say the proposed copyright assignment (FLA) is not nice, only that it's not required in Europe.

Loïc Dachary

Update :The slides of Georg Greve's presentation are available here.