Towards an improved regulatory framework of free software : protecting user freedoms in a world of software communities and eGoverments Siewicz, K. Citation Siewicz, K. (2010, April 20). Towards an improved regulatory framework of free software : protecting user freedoms in a world of software communities and eGoverments. Meijers- reeks. E.M. Meijers Institute of Legal Studies, Leiden. Retrieved from https://hdl.handle.net/1887/15276 Version: Not Applicable (or Unknown) Licence agreement concerning inclusion of doctoral thesis in the License: Institutional Repository of the University of Leiden Downloaded from: https://hdl.handle.net/1887/15276 Note: To cite this publication please use the final published version (if applicable). Towards an Improved Regulatory Framework of Free Software Protecting user freedoms in a world of software communities and eGovernments Krzysztof Siewicz TTowards_an_Improved_def.inddowards_an_Improved_def.indd 1 223-02-20103-02-2010 10:49:0910:49:09 TTowards_an_Improved_def.inddowards_an_Improved_def.indd 2 223-02-20103-02-2010 10:49:1010:49:10 Towards an Improved Regulatory Framework of Free Software Protecting user freedoms in a world of software communities and eGovernments PROEFSCHRIFT Ter verkrijging van de graad van Doctor aan de Universiteit Leiden, op gezag van de Rector Magnificus prof. mr. P.F. van der Heijden, volgens besluit van het College voor Promoties te verdedigen op dinsdag 20 april 2010 klokke 15.00 uur door Krzysztof Siewicz Geboren te Warschau, Polen in 1979 TTowards_an_Improved_def.inddowards_an_Improved_def.indd 3 223-02-20103-02-2010 10:49:1010:49:10 Promotiecommissie: Promotores: Prof. dr. H. J. van den Herik Prof. mr. A. H. J. Schmidt Overige leden: Prof. dr. F.M.T. Brazier (Delft University of Technology) Prof. mr. R.E. van Esch Prof. dr. H. Franken Prof. mr. drs. C. Stuurman (Universiteit van Tilburg) Prof. dr. D. Visser SIKS dissertation series no. 2010-08 The research reported in this thesis has been carried out under the auspices of SIKS, the Dutch Research School for Information and Knowledge Systems. The research was partially funded by the Netherlands organization for international cooperation in higher education (Nuffic), as a part of the Huygens Scholarship Programme. The remaining part of this research was self-funded. Lay-out: AlphaZet prepress, Waddinxveen ISBN 978-83-930580-0-6 Copyright © Krzysztof Siewicz, 2010, this work is available under a Creative Commons Attribution-No Derivative Works 3.0 Unported License, full text of the license available at: http://creativecommons.org/licenses/by-nd/3.0/legalcode TTowards_an_Improved_def.inddowards_an_Improved_def.indd 4 223-02-20103-02-2010 10:49:1010:49:10 Preface The first microcomputer in my home came in the 1980s. Using it was not easy at all, certainly not when compared to using personal computers nowa- days. At that time, it was necessary to know the commands (the source code) to let the computer do anything apart from blinking the command prompt. However, this was sufficiently intriguing to stimulate me to learn the basics of programming and attend a computer course at high school. During the course, around 1997, I first came across Free Software. It was a rough GNU/ Linux distribution assembled by my high school teacher. Well, I must admit, it did not catch my attention then. The reason might have been that I already knew that I would like to study a different type of source code – the law. Paradoxically, becoming a lawyer has raised my interest in Free Software. Surely, source codes are important and knowing them is more than fun. But what matters even more are rights and obligations that come together with the code. Indeed, during my law studies I realised that the freedoms, which Stallman longs for, are legal rights. As a lawyer, I also understand that these freedoms cannot be taken for granted. Actually, it is not so easy to obtain the freedoms, and it is even harder to protect them. In other words, user free- doms tend to be very much alike other freedoms that the society struggled for in the past, and particularly in the recent past. This observation has led me to setting myself a task: to design a frame- work that is able to protect the freedoms adequately. Then, I decided to make my task harder in two ways. First, I thought it would be a good idea to learn how the law actually works. So, while doing my research I have also practised law. I hope that this has strengthened the thesis in the direction of a more practice-oriented dissertation. Second, I submitted my ideas to Pro- fessor Jaap van den Herik and Professor Aernout Schmidt and asked them to become my supervisors. They willingly accepted and as a consequence my task became a crash-course on proper research, reasoning, and writing. They revised each chapter of this thesis some hundreds of times. Perhaps the most important thing that Jaap has taught me is to do everything to make the reader feel comfortable. Aernout has taught me in particular not to expect that problems will solve themselves. Having them both as super- visors was a thrilling experience, which I enjoyed even more as the final result approached. When I now give my work a second thought, in retrospect the task was much more easy. I have had the firm support of my parents and my beloved wife. Whenever I came to Leiden, my Dutch friends were eager to help me. In particular, I wish to thank Franke van der Klaauw, Hugo Kielman, and Wouter Koelewijn who made me feel at home. I also want to thank for the free (as in “freedom”) atmosphere that the partners and my colleagues at Grynhoff Woźny Maliński have created. Warszawa, August 2009 TTowards_an_Improved_def.inddowards_an_Improved_def.indd 5 223-02-20103-02-2010 10:49:1010:49:10 TTowards_an_Improved_def.inddowards_an_Improved_def.indd 6 223-02-20103-02-2010 10:49:1110:49:11 Table of Contents Preface 5 List of Abbreviations 11 List of Legislations 13 List of Model Licenses 15 List of Cases and Patents 17 List of Figures 19 List of Tables 19 1 Introduction1 21 1.1 The main scene of play 22 1.1.1 The software scene 22 1.1.2 The standards scene 24 1.1.3 Four combinations of software and standards 26 1.2 Actors and their audience 27 1.2.1 Actors and their audience in the software scene 27 1.2.2 Actors and their audience in the standards scene 31 1.3 Problem statement 33 1.4 Research questions 40 1.5 Research methodology 40 1.6 Structure of the thesis 42 2 Definitions and basic notions 43 2.1 Free Software 43 2.1.1 Subject matter of the Free Software Definition 45 2.1.2 Requirements of the Free Software Definition 45 2.1.3 Addressees of the FSD 49 2.1.4 Conclusion on Free Software Definition 51 2.2 Open Source Software 52 2.3 Open standards 53 2.4 Software communities 56 2.5 eGovernment 57 TTowards_an_Improved_def.inddowards_an_Improved_def.indd 7 223-02-20103-02-2010 10:49:1110:49:11 8 Table of contents 3 Regulatory framework of Free Software 59 3.1 Identification of rules for software and relations between them 62 3.1.1 Free Software licenses 63 3.1.2 Other rules for software 73 3.1.3 Conclusion on rules for software and relations between them 95 3.2 Identification of rules for standards and relations between them 96 3.2.1 Rules that lead to closed standards 96 3.2.2 Rules that lead to open standards 103 3.2.3 Conclusion on rules for standards and relations between them 110 3.3 Reconstruction of a model of the current framework 111 3.3.1 Rules that regulate software 111 3.3.2 Rules that regulate standards 111 3.3.3 Regulatory environment 112 3.3.4 Graphical presentation of the model of the current framework 114 3.4 Chapter conclusions 116 4 Communitarian protection of user freedoms 117 4.1 Limitations and restrictions of the freedoms 118 4.1.1 License proliferation and incompatibilities 120 4.1.2 License revocability 122 4.1.3 Inter partes nature of licenses 123 4.1.4 Software-related patents 125 4.1.5 Contracts with distributors 126 4.1.6 Liability rules 127 4.1.7 Non-legal regulators of software 128 4.1.8 Closed standards 128 4.1.9 Regulatory environment 129 4.1.10 Conclusion on limitations and restrictions of the freedoms 129 4.2 The freedoms in software communities 130 4.2.1 License proliferation and incompatibilities 134 4.2.2 License revocability 138 4.2.3 Inter partes nature of licenses 139 4.2.4 Software-related patents 141 4.2.5 Contracts with distributors 142 4.2.6 Liability rules 143 4.2.7 Non-legal regulators 144 4.2.8 Closed standards 145 4.2.9 Regulatory environment 145 4.2.10 Conclusion on the freedoms in software communities 146 4.3 Chapter conclusions 147 TTowards_an_Improved_def.inddowards_an_Improved_def.indd 8 223-02-20103-02-2010 10:49:1110:49:11 Table of contents 9 5 User freedoms in eGovernments 149 5.1 User freedoms in a world without eGovernments 153 5.2 User freedoms in Closed eGovernments 154 5.2.1 Closed eGovernment (A) 155 5.2.2 Closed eGovernment (B) 156 5.2.3 Semi-Closed eGovernment 157 5.2.4 Evaluation of user freedoms in Closed eGovernments 159 5.3 User freedoms in Open eGovernments 160 5.3.1 Open eGovernment (A) 161 5.3.2 Open eGovernment (B) 165 5.3.3 Supra-Open eGovernment 167 5.3.4 Evaluation of user freedoms in Open eGovernments 172 5.4 Chapter conclusions 172 6 Proposal of an improved regulatory framework 175 6.1 Inefficiencies of the current framework and possible improvements 176 6.1.1 License proliferation and incompatibilities 177 6.1.2 License revocability 179 6.1.3 Inter partes nature of licenses 181 6.1.4 Software-related patents 182 6.1.5 Contracts with distributors 184 6.1.6 Liability