Eräitä huomioita

Some of you might find it interesting that Nils Torvalds, a journalist and the father of Linus Torvalds, was today elected as one of the three vice spokespersons of the Swedish People’s Party. The party, founded already in 1906, defends rights of the Swedish speaking population (5.5 %) and positions itself somewhere in the centre-right. In March 2007 parliamentary elections the party got 4.57 % of the votes. Torvalds, on the other hand, is a former Communist Party member who still seems to be quite on the left: he’s critical towards globalisation and NATO and emphasizes social policy issues. His platform from the March 2007 parliamentary elections includes two interesting points which I translate here:

• “We have a copyright law that makes majority of our children criminals – this is not wise.
• The law must be changed to meet the people’s morals instead of following the needs of monopolies to make big profits.”

Perhaps we can see some influence of his son here – although Linus is very non-political.

I just spent two days struggling with a server hardware problem. At times, the Internet society is so fragile.

Digital systems are fundamental architectural components of the information society. Therefore it is silly that we need such a strong legalistic approach. Folks on the debian-legal mailing list have spent hours and hours making interpretations on different software licenses. The interpretations are very precise and good but I hope there wasn’t such need. But we’re forced to have such conversations.

Assistant professor Lucie Guibault said that programmers should more carefully mark their copyrights in GPL programs. Otherwise the court might be confused on who is the copyright holder: the FSF, who wrote the license, or somebody else?

The article received strong criticism such as

This “lawyer” is a blithering idiot. The GPL FAQ (http://www.fsf.org/licensing/licenses/gpl-howto.html) explicitly tells you to put your own copyright notice on any GPL’d source.

Maybe the commentor is right, but how many programmers really add their copyright notices? And how many of us who modify a GPL’d program follow this requirement (2 a):

a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.

If Linux kernel contributors actually followed this rule, each of the 15 000 files in the kernel source would have a long changelog at the beginning of the file.

With other infrastructure, we don’t need to negotiate on whether I’m allowed to walk on a public road or what I may use may the electricity for. Free software is a wonderful thing but the forced legalism is a curse.

P.S. A nice paper on trivial software patents.

Lawrence Rosen has released his book Open Source Licensing:
Software Freedom and Intellectual Property Law (2004) under a free license. You might also want to check Understanding Open Source and Free Software Licensing (2004) by Andrew Laurent.

It’s worth noting that both books are written by U.S. legal experts. United States has the tradition of “copyright” - privilege to printing and copying - while most European countries are based on the idea of “author’s rights” (droit d’auteur), which includes moral rights of authors such as right to attribution and integrity of the work. We should be aware of how these differences affect free and open licensing in Europe.

I’m aware of only some work on the non-U.S. free/open licensing. For instance, Institut für Rechtsfragen der Freien und Open Source Software has published Die GPL kommentiert und erklärt (The GPL commented and explained) which is a legal analysis of the GPL in the German context. The same folks have been drafting Deutsche Freie Software Lizenz (d-fsl, German Free Software License) that attempts to be compatible with the German and EU law. In France, there’s the CeCILL license. Both are explicitly GPL-compatible through a special clause that in effect turns a CeCILL or d-fsl licensed work into a GPL-licensed work. Also the European Commission has drafted a specific license compatible with the European law.

Paul Arne of Open Source Law Blog has information on the situation in Australia:

Australia has problems with the GPL as well. Under Section 68(1) of the Australian Trade Practices Act, disclaimers are apparently void if they don’t comply with the language in the act, and it may bring down the entire agreement. See this at pages 76-80 for more detail. Australian info is courtesy of Ian Oi, Special Counsel at Blake Dawson Waldron in Australia, in his attempts at certifying another OSI license.

So far there has been only one free/open source license case in an European court: netfilter against Sitecom in which GPL was found to be valid, but the ruling was also criticized and might not hold in upper courts.

I hope we don’t really need EU-specific licenses. Maybe FSF should take into account the European legislation when they draft the next version of the GPL?

Recently we had a conference dealing with several digital divide related topics: citizen participation, free software, biopatents, copyright, and sustainable information society. Some papers are available. Keynotes by Colin Lankshear and Rishab Aiyer Ghosh may be of interest to FLOSS researchers, as well as the papers in the “Open and Collaborative models” session and Tere Vadén’s paper from the IP session. My presentation is missing from the conference site; you can read the slides while I’m finishing my paper. I think the conference was succesful. I met some good people to work with in the future.

Also, hello to people reading Planet FLOSS Research.

Rusty Russell has this brilliant piece on how copyright is a penalty system, not a reward system:

The first poorly understood point is that copyright on my work does not give me the right to copy it. It prevents everyone else from copying: a so-called “negative right”. As an example, if you own the last copy of my autobiography, I don’t have the right to make a copy: it’s your property. You don’t either: it’s my copyright. If you destroy that last copy, my copyright still exists, but is useless. This illuminates something noone ever spelt out for me: that copyright is a weakening of property law. Normally when you buy something, you get all the rights the previous owner had: if you buy apples off me and sell apple juice in competition with me, I have no legal recourse. Copyright weakens property law by not transferring the “right to copy” with sale: that sliver of rights is removed from every copy and remains in the hands of the copyright holder.

Even if copyright disappears, property rights don’t:

The traditional focus on copyright, without considering the property which is its source, skews the copyright debate quite badly. Works which are no longer copyrighted are often said to “fall into the public domain”. This is a terrible phrase, which implies that property rights are being destroyed. We don’t say that apples, which were never copyrighted, are “in the public domain”. Or consider UK singer Cliff Richard’s accusation that, as copyright expires, “every three months from the beginning of 2008, I will lose a song”, as if the songs will no longer exist.