Normation

A modest proposal to give Free Software equal legal standing as proprietary.

Note: Updated to include lock-in and tying. Some changes on moral rights to clarify that

Laws are more often than not an annoyance, despite their aim to improve the legal framework in any given field. Free Software (AKA "Open Source") has thrived despite the absence of any legal recognition by the law, if not in spite of rules that clearly are shaped around proprietary software. In many jurisdictions it has passed the enforceability test. So, no laws seem necessary to make it work. Yet, can some legal principle be put forward, and included in some laws, to help?

"If it works don't fix it", so goes the common saying. But if it works now doesn't mean it will work forever. It is nevertheless upon lawyers, and legislators alike, to foresee problems ahead of their actual happening, and brace for the potential harmful event. But any laws that would regulate Free Software would likely harm some parts of it, and change the games to favor one kind over another, or impose conditions that are not welcome or productive – something that legislator, even with the best intentions, often do – and in general could cause as many troubles as they would produce benefit. "Primum non nocere" is the paradigm for medical actions, even though drugs by definition only produce a net benefit by inflicting some limited damage. Is there a medicament that has entirely good effects without any negative ones? Arguably there is not. But with laws we can achieve something closer to this optimal benefit, which economists know as "Pareto Efficiency".

So this is a call for Pareto Efficient Laws, and Pareto optimal only laws.

Ifosslr, new issue is out

front page A new issue of the International Free and Open Source Software Law Review is out. This number sports among others a very interesting article by my good friend Maurits Dolmans on the interaction of patents and standards, with a plea for Open Standards. Definitely worth reading. Also noteworthy an introduction to a document that attempts at clarifying how the various linking and other interactions between software from different sources can work – or not work – in copyleft software mingling, by Malcolm Bain.

Other hot topics covered are the patenting of software in Europe, by Noam Shemtov, and the somewhat controversial Project Harmony aims and workings, explained by the leading lawyer Amanda Brock. For those interested in public procurement, the article by Mathieu Paapst explains some aspects of the affirmative actions to favor open source, form mostly an economical perspective, which nicely complements my own article in the previous issue. Those who like reading controversial authors will definitely love to hate Matt Asay's platform article.

Go and fetch it, it's [F | f] ree!

On URL Shorteners

URL shorteners are "cloud" services that do basically one thing: they take a long URL (such a web address) and transform it into a short one. They became popular with the explosion of microblogging facilities like Twitter, Identi.ca, Facebook et al.

Let's keep eye on the ball

It was yesterday in the Herald Tribune, but the news was lingering around even before. Really soon the European Commission will finalize a settlement with Microsoft, possibly closing two big antitrust issues: the tying of the browser with Microsoft Windows and the withholding of interoperability information. I have had the opportunity to comment on the proposal of Microsoft earlier this August, because the Commission has formally asked the opinion of FSFE, which is an interested third party in the procedure. I hope things have improved from then, because there were serious gaps in the proposed commitment.

The point is that the current Commission is going to step down in a few weeks, and Commissioner Kroes – who has an incredibly good track record on the Microsoft case – might feel the urgency to close everything behind her, leaving the office empty and her case teams without a case. But at which conditions?

To use my good friend Jeremy Allison's words, will we be able to snatch defeat from the jaws of victory?

Andy Updegrove on Rambus

Andy Updegrove has published his own take on the Rambus case, which he was following more closing from an US perspective. Andy is a leading authority when it comes to the law in the standards world, and beyond. We have had the opportunity to discuss this case earlier on, and I find his insight very valuable.

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