This is the third revision of the Free Software Act from Maureen O'Sullivan of the Free Software Consortium. Included here is her original article, since the original site where it was published (WorldWatch.LinuxGazette.com) will be coming down in the not-so-distant future. Meanwhile, SCO is trying to make the paranoia global.- Editor's note.

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Look at SCO v IBM - they won't win this copyright battle, most likely, but what about the next time? We need a preemptive strike! Take free software out of the copyright realm altogether, and make a law which reserves particular rights for the specific case of FLOSS. This would be a specially tailored piece of legislation protecting rights of users and programmers in FLOSS communities as they have been informally observed over the past few decades.

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.  This is an example of international customary law which grew from the ground up and became codified as part of commercial law as the centuries went by.  The purpose of referring to this is to show that the proposed model of a free software act has a predecessor - it wouldn't be unprecedented that customs, such as hacker customs which have been practised or written down in documents such as the GNU GPL would become part of the law.

Linux or GNU/Linux is a commons and "common wisdom" tells us that commons do not survive because people abuse them (see "The
Tragedy of the Commons" by Garret Hardin.  The only two solutions, it is said, are external regulation by the government or the allocation of private property rights.  A good example of the former can be seen in Canadian fisheries and a strong refutation of this "solution" is covered well in Mark Kurlansky's book "Cod: A Biography of the Fish that Changed the World".  The reasons why commons are prone to success or failure receives detailed analysis in
Governing the Commons by Elinor Ostrom.  

The latter "solution" to the commons "problem" is by assigning private property rights (for example, copyright coverage of software) so the individual gets an incentive to develop the resource.  This argument is often used by proprietary software companies to justify their anti-"piracy" drives - "if you don't allow us to lock out the hackers, we won't be able to afford to create any new software".

Obviously FLOSS confounds these two "solutions" - it is not externally regulated (its reliance on copyright is subversive, it uses it for its own ends), and there is no private property (there is only reputational capital, very like academic acclaim - you're famous but broke!).  

In fact, FLOSS is managed within its own community, which is democratic and meritocratic - it has made and adopted its own law (the GNU GPL which now covers between 75% and 80% of all FLOSS) and compliance is effectively universal.  This contrasts starkly with proprietary software licensing, where almost 100% "piracy" rates are reported in some countries.  The observance of customary law enshrined in the GNU GPL demonstrates how communities of individuals organise themselves in the absence of outside interference.  There is no descent into "anarchy", in fact, self-regulation, because of attendant community bonds, tends to achieve a more cooperative and egalitarian society.

External regulation coupled with private property rights in the form of a hostile copyright challenge to the GNU GPL could well threaten FLOSS development.  It would be like another colonisation of the software commons (the first occurred in the 1980s and is well documented by Richard Stallman) which would take the resource away from its indigenous people (hackers), excluding them by prohibiting them from accessing the minisculely modified software and then licensing it back to them, describing them as "thieves" or "pirates" if they fight back.

Functioning commons (backed up by studies of fisheries, farming and water resources, for instance) thrive when local people manage. Property rights and government intervention, if not tailored to the customs in place, often actually bring about their demise.

A specially tailored or "sui generis" legal regime for FLOSS in the form of a Free Software Act would explicitly protect hacker rights, preventing proprietary software companies from stealing from a common resource (paid for in part with our taxes) and then forcing us all to pay a high price for access.  The first draft of that law has been done and is a form of legislation from the people for the people, a type of participatory democracy in its purest form (comments and contributions are invited from everyone everywhere).  

I wrote the first draft of this Free Software Act during my recent visit to Costa Rica and we (in the Free Software Consortium) hope in the not-too-distant future to test it here, perhaps, where the current legal and political situation makes the likelihood of the passage of such a law advisable, desirable, possible and eminently practical. This will be an example of participatory democracy finding its expression through our elected representatives. We are paying them to carry out this task, after all.

Maureen O'Sullivan, B.A., DipL., B.C.L. (Cork), LL.M. (Warwick), Lecturer in Law (Property and New Technologies), UWE, Bristol, President Free Software Consortium Foundation, Coordinator Legal Governing Body and Cyber Tribunal, FSC. 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.

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FREE SOFTWARE ACT

Version 3

Recitals:

(i) “Free software” for the purposes
of this Act is not a technical definition. Instead, it is software
licensed so as to assure users, copiers, modifiers, distributors and
any other beneficiaries of free software of certain freedoms.

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

(iii) This Act applies to all non-proprietary
software described under the following headings: free software, open
source software, libre software, foss and floss and also to any
software licensed under Free Software Foundation licences.

(iv) This Act affords legislative protection to
the terms and conditions of any licence enumerated in paragraph
(iii). It does not abrogate the conditions of any licence. This
paragraph will supersede any other recital or section of this Act.

(v) Where non-proprietary software has not been
released under a licence or its developers’ copyright is not
recognised in court, the relevant terms and conditions of this Act
shall apply.

Sections:

1. Free software guarantees the following
freedoms to its authors, users, copiers, modifiers, distributors and
any other beneficiaries, subject to any contradictory requirements
of any licences used to cover the program:

(a) The right to access the source code of any
free software program for any reason.

(b) The right to run the program for any
reason.

(c) The right to copy the program for any
reason.

(d) The right to modify the program for any
reason.

(e) The right to distribute the program for any
reason.

2. Authors’ rights shall be protected in
the following way, subject to any contradictory requirements of any
licences used to cover the program:

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

(b) Any modifier must acknowledge the
authorship of the original and any subsequent versions of the
program, along with the authorship of the modification.

(c) Authorship must always be correctly
attributed.

3. All users, copiers, modifiers, distributors
and any beneficiaries of free software have the right to know about
and be informed about the rights listed in section 1 and section 2
of this Act.

4. Distributors of free software, whether in
its original, copied or modified form, when distributing the
program, may not restrict any of the rights in sections 1, 2 and 3.

5. Copies of the program may be distributed in
exchange for money, providing that the rights in sections 1, 2 and 3
are preserved.

6. Exemptions from liability:

(a) When any free software programmer or user,
while engaged in free software development, inadvertently violates a
proprietary software licence, or any national or international law
relating to “intellectual property” coverage of
proprietary software, s/he will be exempt from the payment of
damages and will be granted a reasonable time in which to rewrite
any infringing code.

(b) The onus to identify any infringing code
enumerated in 6(a) will fall on the plaintiff.

(c) There shall be no warranties for free
software, unless such a warranty has been requested by the
purchaser, agreed to by the vendor and paid for appropriately.

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

8. Sanctions:

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

Further sanctions may be imposed by the courts.

Definitions:

The Program: The “program” in this
Act means the program, copies of the program, modified versions of
the program and copies of modified versions of the program and
source code of the same.

Use:

Run:

Copy:

Modify:

Distribute:

User:

Copier:

Modifier:

Distributor:

Beneficiary of free software:

Free software programmer:

Maureen O’Sullivan, B.A., DipL., B.C.L.(Cork),
LL.M.(Warwick), Lecturer in Law, UWE, UK, President Free Software
Consortium Foundation, Co-ordinator Legal Governing Body and Cyber
Tribunal, FSC © 2004, This document may be reproduced verbatim
in any medium, providing that this attribution is preserved.