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[UK, Costa Rica] Maureen O'Sullivan - We Need a FLOSS Law to Blow SCO v. IBM Out of the Water
Submitted by Willy Smith on 12 October, 2003 - 12:52.
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. With the court climate the way it is on copyright matters, we mustn't hang about and hope that this won't happen.
Unfortunately, the GNU GPL is on somewhat shaky ground legally. As governments worldwide are using FLOSS, they have a responsibility to ensure that they are neither on the offensive nor on the defensive when it comes to the enforceability of the GNU GPL, or about any inadvertent copyright/patent/proprietary licensing infringement issues which may arise during the FLOSS development.
For this we need a practical model for an appropriate type of legislation. The model I've used is the law merchant.
Free Software Act comment
The following comment appears in the free software act.
Another thing we would want to consider here is whether copy protection is illegal, given that copyright specifically allows
Re: [UK, Costa Rica] Maureen O'Sullivan - We Need a FLOSS Law to
I think it's a mistake to even suggest that the GPL or other Open Source licenses need special legislative projection; legislators are just too easy to purchase, or sway with jingoistic propaganda.
The strength of the GPL is that it's a straightforward (tho somewhat unusual) application of basic IP principles that reflect compelling and widespread intuitions about fairness, which therefore are supported by all copyright regimes (people can't copy stuff I create without my permission; I can extend such permission on any conditions I choose).
There's also I think a mistaken analogy about commons; material commons get abused because people take too much stuff out of them, but this can't happen with software, for the same reason that it hasn't happened with the results of scholarhsip and research, over the millienia that we have been building up our collective knowledge of things: for almost all practical purposes, one can make unlimited copies of information without damaging the original.
We Need a FLOSS Law to Blow SCO v. IBM Out
Legislative protection would mean that the courts could not rock the boat as they may currently be able to do with the GNU GPL.
The analogy with the commons is not mistaken because the rationale for laws relating to property and intellectual property rights are based on the same premise. Of course land and software are different: the law does not treat them in this way, however, and copyright is allocated to exclude the masses as if the intellectual commons were a scarce resource. In fact, copyrighting software creates an artificial scarcity which copyleft counteracts.
If you study in depth the differences in copyright protection of authors' rights around the world, you will find that different standards apply in different jurisdictions. Perhaps you would care to read my legal analysis of this which can be found at http://elj.warwick.ac.uk/jilt/02-3/osullivan.html.
Maureen O'Sullivan
Re: Free Software Act comment
Yes, you are absolutely right. Copy protection completely upsets the balance that copyright is supposed to ensure: a limited period of protection for more works in the public domain. The copyright term, particularly in the case of software, is also nonsensical.
Maureen O'Sullivan