White SW Computer Law

Intellectual Property, Information Technology & Telecommunications Lawyers

Postal Address: PO Box 452 Collins Street West, Melbourne Victoria 8007 AUSTRALIA

GPO Box 2506, SYDNEY New South Wales 2001 AUSTRALIA

Telephone: +61 3 9629 3709    Facsimile: +61 3 9629 3217

Email : wcl@computerlaw.com.au    Internet : http://www.computerlaw.com.au

Copyleft licensing evolved from the open source movement which is based on the idea that by making source code widely available and freely modifiable, higher quality software is developed, bugs are fixed more quickly and the resulting product is relatively inexpensive as compared with some commercially available software. It also allows you to see what you are getting with no surprises.

The Internet has played an important role in further developing the concept of open source as it has allowed the interaction between people of diverse backgrounds and resources to compare and contrast their ideas in a timely and cost effective manner. Indeed, much of the Internet’s and the world wide web’s infrastructure is based upon such software.

To maintain control over what is done with open source software, it is necessary to license its use rather than placing it in the public domain. By using a licence, the intention of the open source movement is maintained without having to rely upon individuals’ honesty.

Copyleft licensing of open source software is based on principles such as:

1. Unencumbered redistribution - no party may be restricted from selling or giving away the software;
2. Right to create modifications and derivative works - no party may be restricted from distributing modified or derivative works;
3. Self-perpetuating terms - the licence terms must be applied to all parties to whom the software is distributed;
4. Source code - must in a form that allows easy modification to assist in the evolution of the software;
5. Distinguishable modifications - the contribution of the author of each modification is acknowledged; and
6. Lack of warranties - software is supplied “as is”, without warranties as to performance or non-infringement of other parties’ intellectual property rights.

These Copyleft licences are non-negotiable, standard form, unsigned contracts. Such contracts are the target of consumer protection laws in many countries as they are seen to shift the risk of product failure and intellectual property infringement to the consumer. For the open source movement to continue, “Copyleft” licensing will need to be exempted from laws designed to prevent risk-shifting from the supplier to the consumer. It is, unfortunately, arguable that standard GNU licence does not provide the protection required by the Trade Practices Act unless minor modifications are made to it to include non excludable remedies, such as fitness for purpose.

Until there is legislative support for software authors, some consideration needs be given whether to publish under such a Copyleft licence. On the other hand, end users of Copyleft licences need to consider if such licences provide all the legal protection that they require for their specific circumstances.

To encourage diversity in the software industry authors and users need to continue to work together on a Copyleft basis, but both groups need to be mindful that they are operating in an environment not satisfactorily catered for by existing laws.

For more information visit www.computerlaw.com.au or www.gnu.org.

STEVE WHITE
WHITE SW COMPUTER LAW
SEPTEMBER 1999

www.computerlaw.com.au

© White SW Computer Law 1999