SOFTWARE LICENSING AND LEGISLATION

Thursday, January 27th, 2005

Lecturer: Maureen O'Sullivan

Room No.: 3B066

email: Maureen.O'Sullivan@uwe.ac.uk
or
maureen_o_s@yahoo.co.uk

This course will cover an interdisciplinary range of issues about software, both proprietary and non-proprietary.  

Please note that non-proprietary software is often referred to by the following terms: free software (“free” in this context does not mean without cost, it means unrestricted), open source software or oss, FOSS (free/open source software), libre software (this is because “libre” means free in the sense of being free from constraints in Spanish and French, it does not have the additional connotation of “gratis”), FLOSS (free/libre/open source software) and LOSS (libre/open source software).

Reading:

1.  Homesteading the Noosphere, Eric S. Raymond @ http://www.catb.org/~esr/writings/cathedral-bazaar/homesteading/

2.  The GNU Operating System and the Free Software Movement, Richard Stallman @ http://www.oreilly.com/catalog/opensources/book/toc.html

3.  The Linux Edge, Linus Torvalds @ http://www.oreilly.com/catalog/opensources/book/toc.html

4.  Twenty Years of Berkeley Unix, Marshall Kirk McKusick @ http://www.oreilly.com/catalog/opensources/book/toc.html

5.  The Open Source Definition, Bruce Perens @ http://www.oreilly.com/catalog/opensources/book/toc.html

Invaluable Resources

1.  Home pages of: Eben Moglen @ http://emoglen.law.columbia.edu/

2.  Online Journal: First Monday @ http://www.firstmonday.org – note especially the November 2004 issue – you may experience problems finding this in the archive, if so, use this link: http://www.firstmonday.dk/issues/issue9_11/

Check out and familiarise yourselves with the following websites:

1.  www.fsf.org

2.  www.osi.org

3.  www.microsoft.com

4.  www.bsa.com

5.  http://www.msboycott.com/

6.  http://www.microsoft-watch.com/

7.  www.wired.com

Task:

Prepare a 5-15 minute presentation of the above material, which you will present to the class in which you describe the area and also highlight some of the contentious issues.

Come to class armed with questions and make your learning process interactive.

If you have any queries about the material or any questions, please email me at either or both of the above email addresses.  Queries are welcome and encouraged.  

SOFTWARE LICENSING AND LEGISLATION

Thursday, February 10th, 2005

Lecturer: Maureen O'Sullivan

Room No.: 3B066

email: Maureen.O'Sullivan@uwe.ac.uk
or
maureen_o_s@yahoo.co.uk

The reading for this session has a twofold purpose: first, to get you thinking about rule-making in a new realm (examples being the Internet – and please be prepared to apply these ideas to free software socio-legal issues and licensing) and second, to pinpoint the reasons for the introduction of copyright law to cover software.  Consider weaknesses and strengths of this law and possible solutions.  

Central to your question should be (in the context of your readings on who actually created the Internet, Unix, Linux, etc.) who should have the moral authority to make law in this area.  What is the law aiming to protect?  Whose interests are at stake?  Who should the rightful owners be and what form should this ownership take (exclusive or communal, for example)?  Should there be ownership at all (take into consideration the ubiquity of software in today’s society)?   What effects will strong intellectual property protection have on developing countries?

Reading:

Available online:
Final Report of the National Commission on New Technology Uses of Copyrighted Works: http://digital-law-online.info/CONTU/contu1.html.

Available from Westlaw UK and Westlaw US:
Sean E. Gordon, “The Very Idea! Why Copyright Law is an Inappropriate Way to Protect Computer Programs”, EIPR, 1998, 20(1), 10-13.

Andrew Christie, “Australia’s Proposals for Computer Software Protection”, EIPR, 1994, 16(2), 77-81.

Andrew Christie, “Designing Appropriate Protection for Computer Programs”, EIPR, 1994, 16(11), 486-493.

Dennis S. Karjala, “Theoretical Foundations for the Protection of Computer Programs in Developing Countries”, UCLA Pacific Basin Law Journal, Fall, 1994.

Peter S. Menell, “Tailoring Legal Protection for Computer Software”, Stanford Law Review, July, 1987.

Zheng Chengsi, “The Protection of Computer Programs Under the Chinese Copyright Law”, EIPR, 1995, 17(7), 344-348.

Trotter Hardy, “The Proper Legal Regime for “Cyberspace”, University of Pittsburgh Law Review, Summer 1994.

David R. Johnson & David Post, “Law and Borders – The Rise of Law in Cyberspace”, Stanford Law Review, May 1996.

Joel R. Reidenberg, “Lex Informatica: The Formulation of Information Policy Rules Through Technology”, Texas Law Review, February 1998.

Email me:
Maureen O’Sullivan, “The Linux Operating System: A Socio-legal Study” (please email me for a copy).

SOFTWARE LICENSING AND LEGISLATION

Thursday, February 24th, 2005

Lecturer: Maureen O'Sullivan

Room No.: 3B066

email: Maureen.O’Sullivan@uwe.ac.uk
or
maureen_o_s@yahoo.co.uk

This session is designed to get you thinking about software piracy, issues of theft, the economics of software monopolies and network externalities.  You should try to understand the arguments made by proponents of strong intellectual property rights for the right to exclude, including duration and extent.  The arguments are not solely economic – the Business Software Alliance (BSA) also uses ideas about the morality of the rights of software owners to exclude others.

You should also think about how these arguments relate to free software.  Think about what free software is.  Is it a product?  A service?  An education tool?  Has the nature of software evolved since before the application of copyright?  Is there a boundary between proprietary software and free software?  Should software only be proprietary?  Or free?  Can there be co-existence?  Where?  In such a case, how should you organize the legal regime?  Will there be problems of overlap?  Should we have a nationalisation of all software with compensation to software companies?

Reading:

Online, “techie” newsletters and journals – invaluable resources – search the archives:

Cnetnews.com: www.cnetnews.com

NewsfactorNetwork.com: www.newsdesk@newsfactor.com

Wired: www.wired.com.

The Guardian Thursday Supplement: www.guardian.co.uk

Business Software Alliance: www.bsa.com

Software & Information Industry Association – www.siia.com

Definition and information in online encyclopaedia: http://en.wikipedia.org/wiki/Warez

You may also find articles on this issue in Westlaw UK and US – only look for recent articles and it’s best not to venture into the realm of music because the issues are quite different.

Other Online Resources:

Paul A. David, “Clio and the Economics of QWERTY”, http://wwwpub.utdallas.edu/~liebowit/knowledge_goods/david1985aer.htm

Peter Wayner, “Free for All”, http://www.wayner.org/books/ffa/ffa-2002-12-13.pdf

Donald K. Rosenberg, “Open Source: The Unauthorized White Papers”, http://www.stromian.com/Book/FrontMatter.html

SOFTWARE LICENSING AND LEGISLATION

Thursday, March 3rd, 2005

Lecturer: Maureen O'Sullivan

Room No.: 3B066

email: Maureen.O'Sullivan@uwe.ac.uk
or
maureen_o_s@yahoo.co.uk

The purpose of this class is to introduce you to free software in action, to think about its nature and how it should be protected, if at all.  What interests are at stake?  What are we seeking to protect?  Against whom?  How is free software protected?  Is this funny, healthy or unhealthy?  What does legal subversion (also known as a legal “hack”) tell us about our legal system?  Who needs the public domain?  Should we allow unlimited privatisation?  What about a middle way? 

Start thinking about making the transition from thinking of software as a product to an educational tool.  If such a transition is made, how would this affect any legal protection needed?

Reading:

Text of the GNU GPL: http://www.fsf.org/licensing/licenses/gpl.html#SEC1

Text of new BSD licence: http://www.opensource.org/licenses/bsd-license.php

District Court of Munich 1, Judgement of 19/05/2004: http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL2_20040903.pdf

Christian Ahlert, Introduction to the GPL and Creative Commons: http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL1_20040903.pdf

Julian P Hoppner, “The GPL prevails. An analysis of the first-ever Court decision on the validity and effectivity of the GPL”, http://www.law.ed.ac.uk/ahrb/script-ed/issue4/GPL-case.asp.

Jason B. Wacha, “Taking the Case: Is the GPL Enforceable?”, 21 Santa Clara Computer & High Technology Law Journal, 2005.

Ishtiaque Omar, “The penguin in peril: SCO’s legal threats to Linux”, First Monday: http://www.firstmonday.org/issues/issue10_1/omar/index.html

Some of my work which you may (or may not) find useful:

Maureen O’Sullivan, “The Pluralistic, Evolutionary, Quasi-legal Role of the GNU GPL in Free/Libre/Open Source Software”, European Intellectual Property Review, August 2004.

The Free Software Act:

Version 1: http://www.fsc.cc/node/view/24

Version 2: http://www.fsc.cc/node/view/25

Version 3: http://www.fsc.cc/node/view/26

Version 4: http://www.law.ed.ac.uk/ahrb/script-ed/issue4/FS-Act.asp

And some articles on this:

“The Free Software Act”, LinuxJournal: http://www.linuxjournal.com/article/7381

“A Law for Free Software (Don’t we have enough laws already?)”, Free Software Magazine, Version 2, February 2005: http://www.freesoftwaremagazine.com/free_issues/issue_02/free_software_act/

What’s the alternative to copyright for free software?
1.  Do nothing.

2.  Litigate the GNU GPL – what about the other licences?

3.  Rewrite the GNU GPL in every jurisdiction – this project was started by Creative Commons – see the CC-GNU GPL – but seems to have been abandoned.

4.  International, harmonized legislation which creates a default protection for all licences.

5.  Amend existing copyright law – creating a sui generis regime within copyright itself – examples – the EU Database Directive which gives 15 years coverage to databases.

6.  Others…

Groklaw: www.groklaw.net

Ira V. Heffan, “Copyleft: Licensing Collaborative Works in the Digital Age”, Stanford Law Review, July 1997.

Lawrence Lessig, “The Limits in Open Code: Regulatory Standards and the Future of the Net”, Berkeley Technology Law Journal, Spring 1999.
Stephen M. McJohn, “The Paradoxes of Free Software”, George Mason Law Review, Fall 2000.

Chip Patterson, “Copyright Misuse and Modified Copyleft: New Solutions of the Challenges of Internet Standardization”, Michigan Law Review, March 2000.

Shawn W. Potter, “Opening Up to Open Source”, Richmond Journal of Law and Technology, Spring 2000.

Marcus Maher, “Open Source Software: The Success of an Alternative Intellectual Property Incentive Paradigm”, Fordham Intellectual Property, Media and Entertainment Law Journal, Spring 2000.

Dennis M. Kennedy, “A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and Copyfuture”, Saint Louis University Public Law Review, 2001.

Natasha Horne, “Open Source Software Licensing: Using Copyright Law to Encourage Free Use”, Georgia State University Law Review, Spring 2001.

David McGowan, “Legal Implications of Open Source Software”, University of Illinois Law Review, 2001.

Paul B. Lambert, “Copyleft, Copyright and Software IPRS: Is Contract Still King?” European Intellectual Property Review, 2001.

Mathias Strasser, “A New Paradigm in Intellectual Property Law? The Case Against Open Sources”, Stanford Technology Law Journal.

Adrian Stokes, “Authorship, Collaboration and Copyright: A View from the United Kingdom”, Entertainment Law Review, 2002.

Christian H. Nadan, “Open Source Licensing: Virus or Virtue?”, Texas Intellectual Property Law Journal, Spring 2002.

Theodore C. McCullough, “Understanding the Impact of the Digital Millennium Copyright Act on the Open Source Model of Software Development, Marquette Intellectual Property Law Review, 2002.

Mark H. Webbink, “Open Source Software – Bridging the Chasm”, Practising Law Institute, March 2002.

Yochai Benkler, “Coase’s Penguin, or Linix and the Nature of the Firm”,

Jeremy Malcolm, “Problems in Open Source Licensing”, http://www.ilaw.com.au/public/licencearticle.html

Joseph Scott Miller(?), “Allchin’s Folly: Exploding Some Myths about Open Source Software”, Cardozo Arts and Entertainment Law Journal, 2002.

Robert W. Gomulkiewicz, “De-Bugging Open Source Software Licensing”, University of Pittsburgh Law Review, Fall 2002.

Terry J. Ilardi, “Mass Licensing”, Practising Law Institute, June 2003.

David Bender, “Internet Click-wrap Agreements”, Practising Law Institute, January-March 2003.

Severine Dusollier, “Open Source and Copyleft: Authorship Reconsidered?”, Columbia Journal of Law and the Arts, Summer 2003.

Michael Pawlo, “The case for a Lagom Copyright”, http://www.newsforge.com/article.pl?sid=02/01/12/161213

Nicholas D. Wells, “Government Use of Free Software”, Public Contract Law Journal, Spring, 2004.

David S. Evans, Bernard J. Reddy, “Government Preferences for Promoting Open-Source Software: A Solution in Search of a Problem”, Michigan Telecommunications and Technology Law Review, Spring 2003.

Greg R. Vetter, “The Collaborative Integrity of Open Source Software”, Utah Law Review, 2004.

Take a look at the Columbia Law Review, 1994.  Bear in mind that the discussion is pre-Internet commercialization, so some issues are not really relevant.  

Other useful sites:

Sourceforge.org

Slashdot.org

Also see David Wheeler’s home page for many interesting articles.