There is a problem lurking right at the heart of much current computer software, and because it involves the law of so many countries, it is hard to see how it can be resolved.
Back when I was using computers for the first time, there were three basic models for software:
* Shrink-wrapped and very expensive, with onerous sounding End-User Licence Agreements
* Shareware on Magazine Disks – you could use a demo, but had to pay ($20 is the figure that seems to have stuck in my memory) to get a licence code and keep on using the program.
* Free programs, that came with a simple disclaimer and let you copy and share them with your friends. Probably also found on a floppy disk on a magazine.
What I didn’t know about at the time was that a ‘Copyleft’ movement was growing.
The Free Software Foundation are the foremost promoters of a model that says, as far as I understand it, “we want to let you do all the things that copyright law would usually prevent you from doing, we want to to copy, to modify, to distribute our software. But we want to control the way you do it.” Software created in the light of this philosophy runs much of the internet, and parts of the Mac OS operating system.
The FSF are the writers and promoters of a licence called the GPL. For very good reasons, the FSF want the GPL to be a contract. As a contract, it could be hard to enforce and open to challenge: under US law, to enforce it effectively, you would have to show that you have suffered economic damage as a result of a breach.
So the FSF would like Courts to interpret their software licences not as contracts, but as grants of licence. These can be more easily enforced, using the civil and criminal statutes on copyright law which, thanks to international treaties, are ever more standardised.
The problem is that Courts in the US seem not to wish to do this. The GPL – and similar licences – look to them more like a contract than a grant of licence.
And that could be a very big problem for the GPL, because it could render its most important features effectively unenforceable. Since the GPL makes it clear that software can be copied, modified and redistributed freely, courts may decide that there is little economic harm done by those who ignore the other conditions the licence tries to enforce.
Many people have an opinion on this, and the truth is that until there is more case law, especially in the US, who is right and who is wrong will simply not be known. Until then, however, there is a very serious risk that the whole concept of the GPL is holed below the waterline.
The FSF could, of course, re-write the GPL with its status as a contract in mind, but this would make enforceability hard, would mean that the contract law of different jurisdictions would have to be taken into account and – perhaps the biggest hurdle of all – would mean they would have to give up some of their most cherished legal-philosophical positions.
The moral is: be careful about saying that information wants to be free—you may get more than you bargained for.