Section 11.6. Legal Issues

11.6. Legal Issues

Legal issues are still largely undecided for libre software worldwide. However, some of these issues are specific to Europe. Among them, we have selected two cases: the European Union directives (affecting most of Europe) that have (or may have, depending on approval) a negative impact on libre software; and the concerns about the validity of libre software licenses within European jurisdictions.

11.6.1. EU Directives with Negative Impact

For sure, not all legislative initiatives in Europe in the field of software have a neutral impact on libre software. In some other cases, important laws have been passed (or are in the process of approval) that cause serious problems by producing an environment hostile to libre software. Two of the most relevant cases are:

Directive on software patents^[40]

Although software patents may affect any kind of software, the libre software community is especially concerned about the problems it poses for the freedom of innovation. The directive on software patents (actually, "Directive About Patentability of Computer Implemented Inventions") was proposed by the European Commission in February 2002. If approved as such, it would mean the introduction of software patents in Europe very similar to those in the United States.

Early in the process, groups all over Europe started to explain the problems this directive would cause to European software developers (be they individuals or companies) and users. In part thanks to the awareness caused by this campaign, led to a great extent by libre software activists, the European Parliament passed in September 2003 a set of amendments which, together, would amount to the invalidation of software patents in Europe. Meanwhile, the European Council of Ministers (representatives of EU national governments) has approved a text even more radical than the proposal of the Commission, allowing more clearly for software patents, in a rather strange meeting in March 2005 ( http://kwiki.ffii.org/Cons050307En). Things are in quite a mess at the time of this writing. The Parliament asked the Commission to withdraw its proposal, what was refused, entering into the "second reading" stage, which will lead to a new vote in Parliament, probably during the summer of 2005. All in all, this directive proposal is having one of the more complex, strange, and time-consuming paths ever seen in Brussels. There is a strong perception in the libre software community in Europe that the introduction of software patents would be a strong barrier to the development of libre software. On the contrary, if Europe were to remain free of software patents, libre software development would benefit from much more legal certainty, a friendlier environment, and a more level playing field.

The European Union Copyright Directive (EUCD)^[41]

This was approved in 2001. It is in many respects similar to the Digital Millenium Copyright Act (passed in the U.S.). It poses risks for libre software: the impossibility of distributing programs for handling certain file formats (for contents subject to the EUCD), and of interoperation with certain systems. This directive can make it illegal to produce libre software programs for handling DVDs, for instance. The libre software community is concerned about this problem, but is not mobilized to the same extent as in the case of software patents.

Although there are other legal initiatives in Europe hostile to libre software, these two are the more well-known ones. In particular, there is now discussion about DRM systems and the legislation surrounding them, which could develop into very dangerous laws making it impossible for a libre software system to handle content such as e-books, movies, and music. Only the future will say whether the legal environment that was, until the late 1990s, basically neutral to libre software will evolve into a fairly hostile one.

11.6.2. Libre Software Licenses in Europe

Most (in fact, almost all) libre software licenses were formed in the United States, in a jurisdiction alien to European countries. Therefore, for many years now, there have been concerns about the validity of those licenses in European jurisdictions. This has spawned many efforts in different directions: either to assess the validity of, or to translate and localize such licenses, having versions valid in every European country. Until now, the former approach has had more impetus, as is shown, for example, in the aforementioned "Pooling Open Source Software" study, which includes a detailed review of the validity of the GPL and other libre software licenses, concluding that it is valid for practical purposes. The latter approach is tricky, since it could contribute to the fragmentation of the libre software world and to endless problems in cases of international collaboration (so common in libre software projects). That is why many people from the legal community are considering the proposal of international regulations, which would complement intellectual property treaties with the consideration of libre software, given clearer international support for these licenses.^[42] However, two of the clearer cases of the validity of libre software licenses in Europe happened in Germany. On April 14, 2004, a German court granted a preliminary injunction to stop distribution (by a company called Sitecom; http://www.sitecom.com) of a router that included code (Net-filter/IPtables) licensed under the GPL, yet failed to comply with its provisions, because Sitecom did not distribute the source code. This preliminary injunction was confirmed on July 23, 2004,^[43] along with a significant judgment, after which Sitecom started to provide the source code on its web site. The second case was also a preliminary injuction ( http://yro.slashdot.org/article.pl?sid=05/04/14/2024258), also for the use of Net-filter/IPtables code in some firewall products distributed by Fortinet.( http://www.fortinet.com). Both cases have lent weight to the GPL worldwide, but particularly in the German jurisdiction (and in other European jurisdictions of similar tradition).

^[42] One of such proposed regulations is the Free Software Act, http://www.fsc.cc/node/view/69.

^[43] http://www.heise.de/newsticker/meldung/49377 and http://yro.slashdot.org/article.pl?sid=04/07/23/1558219; see also http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL2_20040903.pdf for a translation into English of the Court decision.