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 Pareto Efficient Set Of Law
I will attempt some of them, uttering the rule and providing some contextual explanation. For the perusal of legislators, both national and international (including WIPO).
Free Software shall not be discriminated as to legal validity of its licensing conditions
No software licence shall be deemed unlawful, unenforceable, null, unworthy protection or suffer any consequence only or primarily because it does not provide monetary consideration and/or imposes conditions – other than otherwise unlawful ones – different from a monetary exchange or an exchange in kind.
This rule would wipe out any – if any – doubt as to the fact that Free Software is a legitimate act of exploitation of copyright by the copyright holder. It is nothing but an application of the principle that the copyright holder(s) is (are) the only one(s) who has(have) the right to authorize certain uses of software. This rule would just remove any question as to the fact that non-monetary conditions have the same validity as the monetary ones, even when no monetary consideration is sought.
Free Software shall not be discriminated as to legal protection in case of violation
Courts shall consider all aspects – including moral ones – when evaluating damages and injunctory relief. No pleas shall be denied or treaded pejoratively (for instance in awarding attorney fees) only because the rightsholder is not seeking monetary compensation when licensing the software, or refuses to settle for a monetary equivalent, if they have not licensed or offered the same software under paid-for conditions.
Free Software can suffer from the fact tha courts are accostumed to proprietary licensing and could think that a) if it's not paid for, it's not worth; and b) the author is unreasonable by demanding compliance when they can receive money instead, since this is more efficient, and this could also affect the award of lawyers' fees.
Free Software licensing shall not be considered harmful to creditors or heirs
Rules that protect creditors in bankruptcy procedures or any remedies that are aimed at preserving the patrimonial guarantees of a rightsholder shall not affect the licensing under Free Software conditions. In particular, States where rules of forced heirship exist shall not consider Free Software licenses as “donations” subject to revocation. The burden of proof that a particular act of licensing was aimed to deprive the rightsholder of part of their own patrimonial guarantee must be strict and upon the one who demands, even when other principle on the onus would otherwise apply.
Believe it or not, some think that licensing software under Free Software conditions is detrimental to creditors/heirs and can be revoked by the receiver, upon demand of creditors or of heirs (where a certain share of the assets of the passed on are awarded to certain lines of heirs). This creates uncertainty as to the permanence of licenses. This can be true in certain, particular cases, but the rule is different, and this must be reflected in the law (note that judges deciding on these matters are invariably unaware of the economy of Free Software).
Moral rights do not apply to software
In copyright systems that award certain non-disponsable “moral” rights to the author of a copyright subject – such as the right to recall a work or to oppose against modifications of the same – these rights are not applicable to software. Only when the right to be recognized as the author of a work exists, this right can be exercised at any time, but the author can be called to indemify those bearing extra costs for this demands if the acknowledgment of the author's work was not put as a condition of the licensing upon which the demanded part relies.
Moral rights are for artistic works, because, allegedly, there goes part of the “soul” of the author. In software the “mechanic” nature of the work shall prevail on “artisitc” aspects if any and there is no rationale to prohibit modifications or to recall the software as there is e.g. in literary works. This provision applies on an equal footage to proprietary and Free Software. Again, this is not entirely innovative, but should remove some FUD as to Free Software in those systems where moral rights exist. Clarification: I am not denying there can be some artisic features in software or that an artist should not be entitled to express their art in software. That would be an exception. But please understand that moral rights do not exist in oh so many countries and no artists have arguably suffered from it. If the artist does not want that their work is modified by others, simply they can not license in a way that so permits. What I cannot agree with is that a software developer licenses a work in a way that other developers rely on that right, but contrary to the license the law permits that this permission is revoked at a later stage. Moral rights, as opposed to other rights, have this characteristic, that they cannot be waived by the author. This is so 19th century.
Liability disclaimers shall be valid
Unless different arrangements exist – such as a development agreement or maintenance obligations – and provided that liability was clearly disclaimed in the licensing rules without the need for this disclaimer to be approved, or made more prominent than other conditions, recipients of Free Software shall not be entitled of any compensation for damages that they have suffered other than a) for willful acts of the author of the software positively aimed at creating harm through malicious code or similar; and/or b) grossly negligent acts unless the recipient of the software knew or should have known using ordinary diligence and taking into account the fact that source code was available to inspection – if this is the case.
Liability for software that can go everywhere, potentially also in system that can cause death or major injuries, is something that is simply ubearable by software developers, and that cannot be put on them just because they acted liberally with their software. It is upon the integrators to check if the software is suitable and not defective. But in some countries liability cannot be disclaimed if not in writing (and a public license is not necessarily in writing) and expressly excluding malice and gross negligence (Italy is one of them). In Italy disclaimers must be approved in writing, and this is a no-go even for one-to-one online agreements, never mind public licenses. This rule removes any such concern and takes the right consequences from the peculiar nature of Free Software – especially for the copyleft part where source code must be made available.
All vendors of electronic equipments (OEM) shall always adequately and clearly advertise whether: a) their apparatus comes with a pre-loaded operating system and/or firmware and if this is the case what is the price for the same apparatus without software if such software comes with an end-user licensing agreement (EULA); b) the operating system, firmware or other software can be replaced by a sufficiently skilled end-user and if there is an encryption or other equivalent mechanism that renders the product non functional if the operating system or firmware is modified by an unauthorized operator. Such advertisement shall always be as apparent as the other main information such as clock speed, size and types of memory, standard of communication supported, compatibility with other devices.
Leveraging the OEMs to only provide certain preloaded software without people even being conscious of buying software is one of the tricks that permitted to proprietary vendors to claim tha people do not want Free Software, without giving it a fair chance. Nearly always buyers of PCs and eqipements alike are requested to accept terms of licensing which they alike have not had the chance of adequately reviewing prior the purchase, having as the only option, if any, to restitute the entire apparatus back to the seller (with costs), and no real option to buy anything different without the software anyway. They are constantly denied reimbursement of the licensing costs of software whose licensing terms they don't agree to. These suggested provisions, while not mandating to offer products people might not want, require that people be informed and put on sufficient notice to excercise their rights before purchase and compare alternatives if existing, enhancing competition on features such as lock-in and OS.
Caveat: this is a potentially growing set of rules, I will update it as soon as I will come up with new ideas or when I will receive sensible advice. Feedback on identi.ca/status.net/twitter or Google Plus (@carlopiana), please.