Only in America? Copyright Law Key to Global Free Software Model

Open source development has always been an international phenomenon. After all, the killer app of the movement — Linux — was born in Finland, and the quintessential dual licensing business was started in Sweden with mySQL. Companies like Red Flag have stepped up in Asia to take Linux into double-byte territory.

The very essence of collaborative development is to break free from arbitrary or geographic barriers like the borders of the nation-state. But attempts to internationalize free software licensing — the legal paradigm as opposed to the development model — have been less successful.

We lawyers are accustomed to provinciality in legal matters. Legal systems are, by definition, carved up by boundaries of national sovereignty, so most attempts to harmonize international laws are not terribly successful. Uniformity of law always runs up against pesky consideration of national independence.

There is only moderate uniformity of law in the intellectual property area — in part because intellectual property as a social construct is deeply embedded in the ethos of some nations (like the U.S., where it is in the constitution) and not in others (such as Laos, where there is no copyright law).

There are treaties intended to harmonize the law of copyright, such as the Berne Convention, and patent, such as the Patent Cooperation Treaty (PCT). However, these do not by any means make IP in the U.S. the same as copyright protection in Uganda. The Berne Convention provides for certain minimum copyright protections above which the protections in individual signatory countries can vary. Even the Berne convention, first issued in 1886, was not adopted by the U.S. until more than 100 years later in 1989 — which should give you some idea of how difficult it is to bring nations together on the subject.

Isn’t It About Time?

The move to internationalize open source licensing has been afoot for some time, but it has acquired some piquancy of late as part of the “license proliferation” debate. People outside the U.S. have begun writing their own open source agreements. Now, internationalization efforts are partly an attempt to avoid the license incompatibility and Balkanization that will probably result.

The goal to internationalize was the genesis of some provisions of GPL version 3. The draft license, for instance, refers to the act of “propagating” rather than distributing. The word “propagating” was chosen purposely to avoid using the words that embody the enumerated rights of U.S. copyright law, such as “distribution.” In addition, most open source licenses avoid a governing law provision. This too is an attempt to make open source licensing work in any jurisdiction.

Ultimately, writing a one-size-fits-all international license agreement is impossible, though the efforts to come close are both noble and useful. Still, there is a much bigger problem with making open source licensing a truly international paradigm.

Countries Without Copyright

Free software licenses like the GPL operate on the strength of copyright law and the ability of the licensor to enforce that law. The GPL even goes so far as to say it is a license, “not a contract,” meaning that its entire strength flows from copyright law. Without the license, the licensee could not exercise the broad rights of free software, particularly the right of distribution; thus the license terms must be obeyed.

If a licensee does not adhere to the terms of the license, the licensor has a remedy — which is to terminate the license, sue for copyright infringement, and seek an injunction to stop infringing distribution. Because the document is not a contract, at least ostensibly, it cannot be enforced under contract law — only under intellectual property law.

The problem is that while most countries have some tradition of enforcing contracts, in many nations of the world copyright law is a joke. There are basically two categories of countries — those with IP law and those without. In the latter category, I include those countries that have a copyright law on the books but don’t actually enforce it.

One could be lofty and talk about the ideals of Thomas Jefferson (a lifelong inventor who championed the patent system, and was responsible for the defining the U.S. tradition of intellectual property) and the virtues of copyright for protecting the individual author against mighty and greedy media companies. However, most practitioners of realpolitick would say that a country starts enforcing intellectual property laws on the day it becomes a net creator of intellectual property rather than a net consumer of it — and not a day before. Today, in some of our favorite software developing countries, that day has not yet dawned.

So, let us take the example of China — the source of most of the pirated software CDs on the market today. This is according to the Business Software Alliance, whose numbers one might take with a grain of salt, given its agenda. Nevertheless, anyone who has been to China will tell you that counterfeit CDs and DVDs are still freely available on many streetcorners. This is unsurprising, considering an ancient tradition in China that copying of others’ work is a compliment rather than a crime.

Enforcement Realities

Or, let us take the example of India, where changes to the copyright law clarifying that computer software was protected came as late as 1995. While the government carries out raids to catch intellectual property infringers, “the court system simply does not work,” and there have been few convictions. Counterfeiting and piracy of software accounts for about 75 percent of the product on the market (again, per the BSA).

While Russia has copyright laws, “many of the Russian facilities capable of producing pirated materials are on military-owned property, protecting them from international scrutiny,” according to a piece. When the government itself is breaking the copyright law for profit, it’s naive to expect that copyright will be enforced.

The facts cited above largely concern retail software. Does anyone out there really think developers in countries that operate like one big CD swap meet are fastidiously compliant when it comes to tasty morsels of software downloadable from the Web for free? Yes, Virginia, I’m sure all those outsource developers are following the GPL to the letter.

At least in India a great many people speak English, so they have a snowball’s chance in hell of understanding what it says. It seems inhuman to make a developer in China try to read any English license agreement — much less the GPL — and understand it. Chinese students are packing English classes in droves these days, but the kind of English fluency required to interpret complicated license agreements eludes even many native speakers.

Software Laundering

The point of the above examples is not to point fingers at, or criticize, legal systems outside the U.S. The point is that the existence of legal systems without robust enforcement of copyright law, in countries where software development is a highly robust enterprise, is a serious threat to the free software model.

Countries whose lack of functional copyright law has jeopardized their membership in WIPO have touted open source as the inexpensive alternative that will allow them to comply with copyright while living within their means. Yet free software doesn’t come free — it has strings attached: the strings of copyleft, strings being pulled via a license written with a strong U.S. copyright enforcement landscape in mind.

The bottom line is that free software lives and dies by the sword of copyright law — and the sword outside the U.S. and Europe is not very sharp. Enforcing free software licenses in the U.S. is hard enough. We all know that noncompliance is rampant in the U.S., though this is due less to defiance or malfeasance than to inattention, poor record keeping, or suspecting that some of the more opaque licenses were actually written by Chinese students who learned English from an official cultural-revolution-era phrasebook.

Working Model

So, who will enforce the GPL in India? Or in China? Or in Russia? In lieu of enforcement, do we really expect voluntary compliance in nations where copyright law is a nod and a wink? In those countries without copyright enforcement, software will be copied, re-used, pulled apart, rewritten, recycled and recast without preservation of any notices or any attempt at compliance. Finding where it all came from may be impossible. International outsourcing companies may become the software equivalent of money launderers. Software with copyright restrictions goes in “tainted” — and comes out “clean.”

Although copyleft is an elegant paradigm, it will unravel with neither voluntary compliance nor enforcement to effectuate it. So we must face reality: Copyleft may never be a useful paradigm in most of our world. Moreover, if code can be laundered in other countries, the free software paradigm in the U.S. may ultimately break down. Perhaps this is not necessarily a prophecy of doom, though.

Ultimately, this may be a question of whether the open source model — as opposed to the free software model — works. For what is open source software other than free software without enforcement? Perhaps our copyright-scofflaw brothers in Asia will show us another path — freedom as in freely available, freedom as in free of copyright law.

Heather Meeker is a shareholder at the international law firm GreenbergTraurig, LLP, and specializes in intellectual property transactions for software and other technology clients. Ms. Meeker is the co-chair ofthe Open Source Committee of the Science and Technology Section of theAmerican Bar Association. She advises clients regularly on open-sourcelicensing issues and open-source business strategies.

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