Free software licenses and the European law
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?
