Free software, also known as open source, libre software, FOSS, FLOSS and even LOSS, relies on traditional software legal protection, with a twist. Semantics aside (I will describe all the above as “free software”), the tradition at law is that free software is copyrighted, like most other software, and is not released, unbridled, to the public domain. Authorial or ownership rights can be asserted as with any bit of proprietary software.

The twist emerges when one examines what a free software licence actually does in contrast with what its proprietary counterpart seeks to achieve. Whereas the latter aims to control and inhibit the rights normally granted under copyright, such as fair use, the former augments the rights generally available within copyright law. Thus while all licences grant you access to the source code of the program in question, some may allow you to privatise your modifications while others prevent you from exercising this option. This article contrasts proprietary and free software licences in terms of their effectiveness and also gives a brief overview of free software licensing, highlighting legal vulnerabilities and their possible remedies by an intervention of the legislature.

Whilst no solution should be seen as a panacea for all possible ills, the legal lacunae under the present copyright-cum-licensing regime need to be addressed without delay

Whilst no solution should be seen as a panacea for all possible ills, the legal lacunae under the present copyright-cum-licensing regime need to be addressed without delay.

Contrasting proprietary and free software licences

An interesting starting point for the purposes of the following discussion is the contrast between the observance rates of proprietary and free software licences. On the proprietary software side, a multitude of forces are amassed against would-be, so-called software “pirates”, which probably tarnishes a large portion of the population in general. We have copyright law—an old bottle, arguably not well tailored to house this new wine—but chosen in the 1980s as an appropriate legal protection for a number of reasons, including the fact that it was considered a good idea to treat software code in the same way as you would treat a literary work. Signatories to the Berne Convention could provide this protection almost instantaneously and, therefore, a rapid, international coverage for software was achieved.

Copyright is not the same in all countries so software owners get a bundle of rights rather than a single one that will suffice in every jurisdiction

Copyright is not the same in all countries so software owners get a bundle of rights rather than a single one that will suffice in every jurisdiction. Moreover, proprietary software licences tend to restrict these rights, in return for permission to use the work in a limited way. Copy protection is also used in tandem with copyright law and this creates a physical fence to keep software “thieves” and other miscreants out. Despite the copyright bargain of leaving ideas free while protecting expression, patent law has subsequently been applied to this material, which was supposed to lie in the public domain. Industry representative bodies, such as the Business Software Alliance, are fond of pointing out the humungous losses caused by “pirates” and they have developed a moral arsenal of a type of online confessional by proxy where disgruntled employees are encouraged to report their errant bosses.

Despite the copyright bargain of leaving ideas free while protecting expression, patent law has subsequently been applied to this material, which was supposed to lie in the public domain

Often the threat of a lawsuit, whether well founded or vexatious, is enough to send an institution into a flurry of panic about a visit from BSA representatives. None of these increasingly restrictive and repressive practices appear to have much effect—in many parts of the world, piracy rates still soar and in other parts, governments, tired of continual name-calling by foreign bodies, have decided to abandon proprietary software and replace it with free software. This apparent panacea has not proven to be an acceptable solution for the proprietary software folk either. Their motto would appear to be “my product, my way”.

By way of contrast, free software licences are rarely litigated and the most prominent, the Free Software Foundation’s GNU GPL, has only recently made its court debut, which in its 15 year history, is a remarkable achievement. Free software licences enshrine a sort of customary law or act as a declaration of customs within hackerdom. The preamble of the GNU GPL, in particular, employs a style of language richly reminiscent of the often countered “We the People…” sections from the constitutions of many nations. Its terms lay out clearly what one may and may not do with the code to which the licence applies. It is a sort of lex scripta or transcription of long-established and practised customs. So when a failure to observe such norms is encountered, the mail in the mailbox of the guilty party will steadily increase into a stream of less and less friendly messages, the longer the non-observance of the licence persists.

The FSF is a veteran of this informal style of enforcement and, in contrast with the BSA, its moral prescriptions largely keep its flock in line

The FSF is a veteran of this informal style of enforcement and, in contrast with the BSA, its moral prescriptions largely keep its flock in line. Participants in the free software community generally have an incentive to comply as there are ongoing relationships and reputations at stake, which could be affected, should a prolonged violation be sustained. It is an insider’s law and is inherently democratic because it is chosen from a range of different options and voluntary observance is the norm. Outsiders who have benefited from free software also generally contribute back to the free software commons—IBM being a case in point—and they respect established licences, as a failure to do so would provoke hostility and ultimately damage their business.

Free software’s legal vulnerability arises from businesses that do not participate in using and contributing to the free software commons, and whose market hold is threatened by the incursion of free software into their monopoly

Free software’s legal vulnerability arises from businesses that do not participate in using and contributing to the free software commons, and whose market hold is threatened by the incursion of free software into their monopoly. Those who in their day relied on a sympathetic legal system to convert software sharing into theft may also depend on the same system, 25 years on, as a way to dampen free software’s growing popularity in business and government software around the world. The next section delves a bit deeper into whence these vulnerabilities may arise.

Free software’s legal threats

Free software also depends upon the copyright system, but in an amusing and subversive way. Had legislators done the right thing in the early 1980s, they would have created a sui generis law, specially tailored toward enhancing this resource and not facilitating the creation of monopolies in the operating systems market. However, this inappropriate law was a fait accomplit and has been used by free software advocates to achieve the opposite of what it was intended to achieve.