Free Software Legal Protection: Licenses, Legislation or Both?

by Maureen O'Sullivan

The spread of free software and the subsequent promotion of its use by governments throughout the world is a fascinating phenomenon. Many countries currently are considering laws in which free software would be favoured or, at the very least, promoted over proprietary software for public administration for a variety of reasons, including transparency, security, choice and cost. What has been lacking in this approach is any in-depth consideration about the intellectual property issues. Most of the people involved in free software development rely on the GNU GPL or on other free software licenses, such as the BSD licenses, which originally were developed for common law or Anglo-Saxon legal systems.

When software is produced it an automatic subject of copyright protection, and you are bound by the author's rights regardless of whether you are aware of them. Software is licensed so that others have permission to use the work. Unlike books, however, you may not copy the equivalent of a book chapter for your own use, so proprietary software licenses tend to err on the restrictive side. Free software licenses, in contrast, are quite liberal in this respect. While relying on copyright to protect the author's work, free software, in general, can be used, copied, modified and distributed, providing certain conditions are met. The conditions depend on the terms of the individual license, of which there are many.

The most commonly used free software license is the GNU GPL. It has not yet made its court debut but has been almost universally complied with during its 14-year lifespan. When contrasted with proprietary licenses, this is a remarkable achievement but understandable given that its enforcement mechanisms are multifarious and pluralistic. There is community pressure to obey coupled with a quasi legal regime that identifies violators and then endeavours to persuade them to comply. So far, enforcers of the license have not had to go any further, but any free software license could be used, of course, to sue either in contract or in copyright. Problems associated with relying on copyright have a number of manifestations: copyright, in terms of the protection that is offered, varies in different countries and the GNU GPL thus may run into problems overseas (this also applies to contract law). The manner in which copyright is assigned differs according to the project in question: this also may cause certain difficulties when it comes to identifying who the author or authors actually are. Furthermore, the SCO v. IBM case is a blatant endeavour to sow doubt about the legality of the GNU GPL so that this model of software development, the favourite among free software programmers, is put in doubt. In my view, this warrants a proactive response for two reasons. First, it would strengthen and put beyond legal uncertainty all clauses of the GNU GPL and, indeed, other free software licenses. Second, and perhaps more urgently, a proactive response would help formulate other legislative measures to prevent this type of vexatious case from reaching us in any media whatsoever.

Free software is no longer a product or resource solely of hackerdom. It has spread its tentacles and other parts throughout the world, so that its use, deployment and promotion are being considered in every continent on the planet. Relying on a common law concept of software protection is not totally satisfactory, and not only from the legality of the licenses in question. Before the introduction of copyright to cover software, a sui generis regime had been considered in a number of jurisdictions around the globe. Such plans were abandoned in the face of US trade threats for non-compliance with its prescribed law. In fact, the free licensing system has become a sui generis protection all of its own, and as a system that has functioned effectively for a considerable period of time, this deserves legislative recognition as a form of customary law crying out for codification. If legislation fails to reflect the will of the people, legislators lose their mandate to tell us what to do.

A free software act would not interfere with free licenses; on the contrary, it would back them up and add some other necessary rights, such as exemptions from inadvertent infringement of copyrighted software for free software developers. Early implementation of such a law is crucial. The last thing the EU, for instance, needs when considering the use of free software throughout its administration is a company like SCO raising its unkempt head and demanding compensation for allegedly infringed code. Taxpayers' would be furious, free software developers nervous and citizens in general would feel the administration had plenty of time to consider the possibility of such an issue and did nothing to prevent it.

I have been involved for some time in a project, in conjunction with the Free Software Consortium, to draft such a law that, once consolidated, will be put forward to legislatures all around the world. I recently completed the second version of the Draft Law, which is presented below. Comments, questions and criticisms are welcome, as this is intended to be a representative and democratic process. Please direct correspondence to me at or at


                                 FREE SOFTWARE ACT


   (i) "Free software" for the purposes of this Act is not a technical
   definition. Instead, it is software licensed under free software licenses
   which assures users, copiers, modifiers, distributors and any other
   beneficiaries of free software of certain freedoms. The objective of this Act
   is to clarify and strengthen the rights of the aforementioned which are
   already enjoyed in practice. 

   (ii) Any user, copier, modifier, distributor or any other beneficiary of free
   software has standing to sue for any violation of this Act.


1. Free software guarantees the following freedoms to its users, copiers, 
modifiers, distributors and any other beneficiaries of free software:

   (a) The right to access the source code of any free software program for any reason.

   (b) The right to run the program for any reason.

   (c) The right to copy the program for any reason.

   (d) The right to modify the program for any reason.

   (e) The right to distribute the program for any reason.

   (f) Authors' rights:

      i. The author of any free software program retains the right of
         attribution to his/her work.

     ii. Any modifier must acknowledge the authorship of the original version,
         along with the authorship of the modification.

    iii. Authorship should always be correctly attributed.

   (g) All users, copiers, modifiers, distributors and any beneficiaries of free
   software have the right to know about and be informed about the rights listed
   in section 1 of this Act.

2. Distributors of free software, whether in its original, copied or modified 
form, when distributing the program, may not restrict any of the rights in section 1.

3. A charge may be made for the program, providing that all rights in section 1 are preserved.

4. Exemptions from liability:

   (a) When any free software programmer, while engaged in free software
   development, inadvertently violates a proprietary software license, s/he will
   be exempt from any liability whatsoever.

   (b) When any free software programmer, while engaged in free software
   development, inadvertently violates a software copyright, s/he will be exempt
   from any liability whatsoever.

   (c) There should be no warranties for free software, unless such a warranty
   has been requested by the purchaser, agreed to by the vendor and paid for

5. Users, copiers, modifiers, distributors and any other beneficiaries of 
free software are bound by the contractual conditions of any license or 
licenses which apply to the program or programs they use.

6. Where a program has been developed in more than one jurisdiction, each 
with different copyright requirements, the provisions of this Act will apply. 

7. Sanctions:

   Any violation of this Act will result in an obligation on the part of those 
   responsible or of third parties to give access to the source code of any 
   modified program based on free software. 

   Further sanctions may be imposed by the courts.

8. Definitions:

   The Program: The "program" in this Act means the program, copies of the 
   program, modified versions of the program and copies of modified versions of 
   the program and source code of the same.










   Beneficiary of free software:

   Free software programmer:

© Maureen O'Sullivan, B.A., DipL., B.C.L.(Cork), LL.M.(Warwick), Lecturer in 
Law (Property and New Technologies), UWE, UK, President Free Software 
Consortium Foundation, Co-ordinator Cyber Tribunal and Legal Governing Body, 
FSC © 2003, This document may be reproduced verbatim in any medium, providing 
that this attribution is preserved.
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