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DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS LEGAL AFFAIRS Legal aspects of free and open source software COMPILATION OF BRIEFING NOTES WORKSHOP Tuesday, 9 July 2013 JAN 4 Q 1 PE 474.400 EN This document was requested by the European Parliament's Committee on Legal Affairs. RESPONSIBLE ADMINISTRATORS Danai PAPADOPOULOU Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] Rosa RAFFAELLI Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] EDITORIAL ASSISTANCE Marcia MAGUIRE Policy Department C: Citizens' Rights and Constitutional Affairs LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its monthly newsletter please write to: [email protected] European Parliament, manuscript completed in July 2013. © European Union, Brussels, 2013. This document is available on the Internet at: http://www.europarl.europa.eu/studies DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Workshop: Legal aspects of free and open source software ____________________________________________________________________________________________ CONTENTS An introduction to the most used FOSS license: the GNU GPL license 6 Dr. Eben Moglen, JD and Ian Sullivan, Columbia Law School Developing an EU model: the EUPL license 13 Patrice-Emmanuel Schmitz, Developer of the EUPL A discussion of the different software licensing regimes 30 Avv. Carlo Piana, Lawyer Legal aspects of free and open source software in procurement: guidelines developed at the EU level 50 Rishab Ghosh, UNU-MERIT Legal aspects of free and open source software in procurement: national case studies 68 Philippe Laurent, University of Namur Legal aspects of free and open source software in procurement: the example of the City of Munich 89 Oliver Altehage, Kirsten Böge & Dr. Jutta Kreyss 3 Policy Department C: Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ LIST OF ABBREVIATIONS AGPL Affero General Public License APL Apache Public License BSD Berkeley Software Distribution EC European Commission EIF European Interoperability framework EPL Eclipse Public Licence EU European Union EUPL European Union Public Licence FDL Free Documentation License FOSS Free and/or Open Source Software FLA Fiduciary Licensing Agreement FLOSS Free/Libre Open Source Software FRAND Fair, Reasonable and Non Discriminatory (licensing terms) FSF Free Software Foundation GCC GNU C Compiler GNU GNU's Not Unix GPL GNU General Public License IMIO Intercommunale de Mutualisation Informatique et Organisationnelle IP Intellectual Property ISA Interoperable Solutions for Administrations (a EC programme, complementing the previous IDA and IDABC) ISV Independent Software Vendor IT (ICT) Information (& Communication) Technology 4 Workshop: Legal aspects of free and open source software ____________________________________________________________________________________________ KDE K Desktop Environment LGPL Lesser General Public License MPL Mozilla Public Licence NIF National Interoperability Framework NOIV Nederland Open In Verbinding OSI Open Source Initiative OSS Open Source Software (see: FOSS) SaaS Software as a Service (i.e. applications used in the cloud) PAs Public Administrations SDO Standard Definition Organisation SFLC Software Freedom Law Center W3C World Wide Web Consortium 5 Policy Department C: Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ An introduction to the most used FOSS license: the GNU GPL license Dr. Eben Moglen, JD and Ian Sullivan, Columbia Law School ABSTRACT The public drafting and discussion of GPLv3 in 2006-07 was a landmark in non­ governmental transnational law-making. Free and open source software production communities are held together by copyright licensing, as are free cultural production communities like Wikipedia. Their efforts to improve those licenses—to increase their utility in multiple legal systems, to take account of technical and economic changes in the field, and to increase their efficiency of operation and enforcement—are among the most important examples of genuinely democratic, participatory law-making that we have experienced so far in the 21st century. CONTENT EXECUTIVE SUMMARY 6 1 THE GPL AND COPYLEFT 7 2 CREATING VERSION THREE OF THE GNU GENERAL PUBLIC LICENSE (GPLV3) 8 3 THE PUBLIC CONSULTATION 9 4 THE DRAFTS 11 CONCLUSION 12 EXECUTIVE SUMMARY The public drafting and discussion of GPLv3 in 2006-07 was a landmark in non­ governmental transnational lawmaking. Free and open source software production communities are held together by copyright licensing, as are free cultural production communities like Wikipedia. Their efforts to improve those licenses—to increase their utility in multiple legal systems, to take account of technical and economic changes in the field, and to increase their efficiency of operation and enforcement—are among the most important examples of genuinely democratic, participatory law-making that we have experienced so far in the 21st century. In the interest of improving both the European Parliament’s access to the details of this particular process, and to assist it in self-scrutiny, with respect to its extraordinary consistency in missing its opportunities in this area, Software Freedom Law Center (SFLC) submits the records of this process, which it assisted its client, the Free Software Foundation, to design and execute. 1 1 While this 19 month transnational consultation process operated entirely on Free Software, the procedures of this Parliament require the use of proprietary document production tools and formats in order to discuss it on the public record. This document is the closest approximation to those formats that can be produced using internationally recognized standard formats and Free Software document production tools that are available to all 6 Workshop: Legal aspects of free and open source software ____________________________________________________________________________________________ 1 THE GPL AND COPYLEFT The GPL is the world's most widely used Free Software licence.2 The Free Software Foundation, the founders of the Free Software movement, defines free software as: [S]oftware that respects users' freedom and community. Roughly, the users have the freedom to run, copy, distribute, study, change and improve the software. With these freedoms, the users (both individually and collectively) control the program and what it does for them.3 The GPL preserves these freedoms for its users through a series of requirements in the licence. Originally designed for use in the GNU project to build a fully free computer operating system, these licence requirements are collectively referred to as “Copyleft”. The GNU project's explanation of Copyleft follows. 1.1. What is Copyleft?4 Copyleft5 is a general method for making a program free software and requiring all modified and extended versions of the program to be free software as well. The simplest way to make a program free is to put it in the public domain,6 uncopyrighted. This allows people to share the program and their improvements, if they are so minded. But it also allows uncooperative people to convert the program into proprietary software.7 They can make changes, many or few, and distribute the result as a proprietary product. People who receive the program in that modified form do not have the freedom that the original author gave them; the middleman has stripped it away. In the GNU project,8 the aim is to give all users the freedom to redistribute and change GNU software. If middlemen could strip off the freedom, there might be many users, but those users would not have freedom. So, instead of putting GNU software in the public domain, it has been “copylefted”. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom. Copyleft also provides an incentive9 for other programmers to add to free software. Important free programs (such as the GNU C++ compiler) exist only because of this. Copyleft also helps programmers who want to contribute improvements10 to free software11 get permission to do that. These programmers often work for companies or universities that would do almost anything to get more money. A programmer may want to contribute his/her changes to the community, but her employer may want to turn the changes into a proprietary software product. When the employer is told that it is illegal to distribute the improved version except as free software, the employer usually decides to release it as free software rather than throw it away. To copyleft a program, it is first stated that it is copyrighted; then, distribution terms are added, which are a legal instrument that gives everyone the rights to use, modify, and redistribute the program's code or any program derived from it but
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