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News From Oz: Open Season on Open Source in Australia
Posted by Kim Weatherall on Tuesday, October 29 @ 19:31:32 EST OpenSource
It seems that, periodically, someone in Australia raises the question: is the GPL enforceable?

One of Oz's newspapers, The Australian, have a new story, where they quote a lawyer from one of Australia's bigger firms, Minter Ellison, suggesting that there are doubts about GPL enforceability, and consequences of non-enforceability (Minters' (very) slightly more extended analysis is also online: here). There's some trickly little issues in here - and while some of the claims aired in The Australian article are just silly, there may be something to it, though I still doubt the world will fall apart...

First things first: - the Australian's article is about as general as it comes. - Minters' analysis is also aimed at (generating new) clients - so is also very general in its terms.

The other interesting thing about this story is that, in many cases, the issues it raises are common to all software - not just open source. Blaming it all on the GPL and open source is just plain wrong.

The summary of my views is this: legal issues for people involved in the open source community, building their own software for their own purposes and putting it out there to contribute to the public domain will continue to be - well, not that huge. The reason we're getting these concerns now is that businesses are in on the act. Either they want to make money through open source (distributing it, with warranties or without); or they want to use it - to save money. For these people, there are issues. Because they generally need more certainty - in reliability (who'd want to be in charge of a bank's computer system - esp if it went haywire?), and in having someone to blame if it does all go wrong (who'd want to be their supplier, if you couldn't limit liability). So, for these people, there certainly are legal issues. But we knew that, right?

So what of the claims?

1. "From a copyright point of view, developers are most at risk because they lose the ability to assert ownership."

Not correct. The statement is carefully worded but misleading, because it suggests that the writers of the software lose their copyright (indeed, that is how readers seem to be interpreting it - look at the 'Your Say' comments page on the article). Which, of course, they do not. Note the word "assert" though - I think the lawyer (committing the usual sin of "lawyer-speak") means that you can't "assert" copyright rights like the right to make copies, to make adaptations etc etc. Even then it's still misleading, because the GPL doesn't ever stop you distributing your own independent work as a separate work.

2. "The lack of a liability regime also meant the distributor was not liable for defects in the product, which may cause data loss or systems to crash"

Hardly news, and misleadingly suggests that this is not true of other software. 99.99999% of all software end user licenses have disclaimers. Further, the GPL specifically allows people to offer warranties, including offering warranties for a fee. Would be an issue for businesses wanting to install all open source, though.

3. "This could be a problem with employees, who could, for example, be using a piece of open-source software that they download from somewhere. Not understanding the implications of what they are doing, they could incorporate it into a program for their employer, which may then be distributed for a price and they could be in breach of the GPL"

Any employer who does not warn their employees against taking code from elsewhere and then incorporating it into software that the employer sells is laying themselves open not just to breaches of the GPL. It also means that if the employee uses material from proprietary software they'll be in trouble for copyright infringement.

4. Legal uncertainties surrounding open-source software were complicated in Australia because of the Trade Practices Act and state Fair Trading legislation"

Ah, here is where it gets all vague and wishy-washy. Unfortunately, it seems that they don't want to tell us just how things get complicated here.

The Trade Practices Act is the legislation in Australia that seeks to protect consumers (Part V of the Act). It contains things like warranties of merchantability/fitness for purpose that cannot be excluded by contract. These provisions, and the warranties they create, apply to all goods and services. They are not specific to software. There is caselaw in Australia on whether software is a "good" or a "service" but the summary is - it's not 100% clear. The basic warranty is that a good is of "merchantable quality" (s71). This basically means - fit for the purpose for which goods of that kind are commonly bought as is reasonable to expect having regard to any description applied to them, the price, and other relevant circumstances. With services, the warranty is that they are "reasonable fit for the prupose for which they are supplied" (s74).

Now, there are questions about how much the legislation applies to things that are given away, like open source software. I also think a court would hesitate to find that any particular "purpose" had been warranted in the case of software which is there for the taking and modification. The court would likely take into account the "description" of open source software, and the understanding that people have that it is a "work in progress". It is probably one area where courts are going to say - you act at your own risk.

Of course, if a party wants to provide open source software on a large scale in business, their customers are going to want some more certainty than that, possibly. But if they want to back it up with a warranty, that's allowed under the GPL.

5. "There is generally no warranty that the software does not infringe any third parties' intellectual property rights. This could expose the end user of the software to liability for intellectual property infringement"

This is a harder issue to dismiss. If programmer X puts some proprietary software into their work and distributes it under the GPL, then subsequent users might be liable for the infringement as well. But a couple of qualifications are worth noting. First, you have to find the infringer. Good luck there. Second, there would have to be a reproduction of a substantial part of the proprietary software in the distributed program. Substantial part, in Australia, is assessed according to the originality of the work as well as the quantity taken. So the bit incorporated would have to be significant. Third, Australian law also offers a defence of innocent infringement (s115(3)) where "defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright". The result of such a finding is that the plaintiff is "not entitled under this section to any damages".

other issues
Enforceability of online contracts is an ongoing drama (at least for legal academics) - in the states and here. For a recent analysis, see the Australian copyright Law Review Committee Report on Copyright and Contract (Chapter 5) (a report which, by the way, doesn't seem to have looked at viral contracts in any depth).

moral rights might be another issue - Australia has legislation (Copyright Act, Part IX) that prohibits, in essence, denigrating use of a work, or alterations that attack the integrity of a copyright work - meaning acts that consist of the material distortion of, or material alteration of a work, or anything else, which is "prejudicial to the author's honour or reputation" (s195AJ). But there are defences where the action is reasonable (s195AS).

So, in short - the article is a bit misleading, and a lot scare-mongering. There are definitely issues for the GPL in Australian law, but my reaction (without going through truly detailed legal analysis) is that at least many would be overcome in practice. The biggest issue is, of course, for companies wanting either (a) to make a lot of money out of distributing the stuff, or (b) save a lot of money by using it instead of Microsoft. For the former - they are in a position to price their product, right? And the people in category (b) can pay for the extra security - get someone else to provide warranties. If I were them, yes, I'd be getting some pretty good legal advice. and being careful where I got the software from. But isn't that always true? So it's complicated in law, that's right. But it ain't the end of the world for most programmers, methinks.

 
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· new story
· Minter Ellison,
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· comments page
· Trade Practices Act
· s71
· s74
· s115(3)
· Report
· Copyright Act
· s195AJ
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"User Login" | Login/Create an Account | 11 comments | Search Discussion
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Enforceability is a HUGE issue for the GPL. (Score: 1)
by GMHenninger on Wednesday, October 30 @ 02:43:53 EST
(User Info | Send a Message) http://www.ingenuitas.org
I would look at the issue a bit differently than the author has, however. What are the consequences of taking GPLed code and adding it to proprietary software? Let me put a scenario before you and see what you have to say about it. Let's say that Microsoft used some code from Linux for Windows and people found out about this code. Let's also assume that Linus brought a suit against MS on behalf of GNU/Linux. And finally let's assume that Linus won. Who would get the compensation from MS? What if it wasn't a project that is as well organized as GNU/Linux and the compensation could not be given to the project itself? Where would the compensation go then? Lastly, I think the most important question is, if the aggrieved parties cannot be identified, would a suit like this even be brought to court and if not does it mean the government cant effectively protect these types of property rights?


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Re: Open Season on Open Source in Australia (Score: 0)
by Anonymous on Wednesday, October 30 @ 16:21:25 EST
Lawyers love contracts because they have so much intellectual machinery to deal with them. When all you have is a hammer everything looks like a nail. This lawyer like many others assumes the GPL is a contract. But the GPL is not a contract. There is no 2 way exchange of value and no agreement. The GPL is a unilateral grant of rights, that is written so as not to grant the right to create derived works that are not themselves under the GPL. RMS the author of the GPL told me he does not consider the GPL a contract.


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