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.
A few minutes ago, Oracle has announced that Openoffice.org, the ODF-based Free Software suite for office productivity, will become a community developed project. In plain English, no more dual licensing, no more proprietary version, go ahead to incoming patches. Woot!
I am very happy to hear about this move, which was not entirely unexpected (by me, at least). To tell all the truth, reaching this point was my secret plan when I have started helping Oracle in the merger control procedure opened by the European Commission last year, where the acquisition of Sun was under scrutiny. I was telling everybody that the dual licensing approach was going to die, that id did not make much sense anymore, that it was "moot" – I actually mentioned MySQL there, but the same applies to Openoffice.org, actually. As it turns out, I was right.
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.
Aduc, an Italian Consumers association, has served on Microsoft Italia (the local branch of Microsoft Corp) a class action complaining that the company consistently refuses to reimburse users the price of ubiquitous windows licenses, bundled with OEM (Original Equipement Manufacturers) computers. I am part of a much larger legal team that has produced it and I can briefly illustrate what it is about.
Italy has adopted a regulation (Art. 140 bis of the Italian Consumers Code) that allows consumers individually (not consumers associations, which is strange) to file class actions, through ordinary proceedings, open to be joined at a later time. A class action is a case which is arguably identical to a class of users and which is likely to protect the interest of this class. Unfortunately, the Italian version has been adopted with very odd provisions that limit the effectiveness of it, as one can read in this document by Aduc (in Italian).
The Free Software Foundation Europe is the facilitator of a legal network comprising hundreds of experts from private practice, corporations, universities around the world. One of the Special interest groups has spent almost one year producing a document explaining how differently licensed software programs and libraries can and cannot mixed to make or not to make a derivative of each other.
The result is what we call "the linking document". It might not be perfect, but it's a valid platform for discussion around a topic that provide headache to many players in the field. To find a comparable discussion, albeit controversial and limited to the GNU licenses, one should redress to the FSF's FAQ.
Ifosslr Volume 2, issue 1, is out with an article of mine on a recent case on which the Italian Constitutional Court has ruled in favour of giving preference to Free Software in Public Administration. Here is the Abstract
A new issue of the 