Beware of moral rights loopholes
grex replied to my previous post:
Interestingly enough the Creative Commons people try to have licenses translated and valid in each of the countries. I really don’t know how this can (and if it will) cause problems some time in the future… Maybe the reason for this different strategies is because of the different origin of the main members of these communities (Stallman as a programmer and Lessig et al. as lawyers).
Taking a look at some of the international CC licenses, it seems careful work has been done in adapting the license to the local jurisdiction but I believe that just translating/localizing the license risks creating loop holes that didn’t exist in the original. Moral rights could be one. I see moral rights more as a potential loophole could could be used by the copyright holder to prevent some use of the software than a problem of protection.
Take Zynaddsubfx for instance. The author has licensed his program under the GPL but has an extra wish: “Please don’t use this program to make music that is against God and Jesus Christ. Realize that the only way to the Salvation is Jesus Christ. Please don’t lose this chance and don’t make others to lose it!”
What if somebody took Zynaddsubfx and turned it into a (GPL-licensed) program called Satanic Synthesizer that was designed to create death metal type of music? Would this be a breach of the original author’s moral rights? Could the author sue based on his moral rights, although there was no GPL infringement?
Lessig has admitted that “In many jurisdictions that protect moral rights, you can’t just automatically give away the moral right, without knowing something about how, or in what context, the work is to be used. For those jurisdictions then, a Creative Commons-like mechanism just wouldn’t work.” He goes on saying that CC wasn’t created for these jurisdictions.
With regard to Stallman vs. Lessig I think it is more about their ideological background. Lessig seems to be constitutionalist whose argument is based on the idea of individuals’ rights, freedom of speech etc. while Stallman is more a communitarianian/anarchist type for whom voluntary co-operation and non-hierarchical society are primary goals.
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?
