Free Software and Content licenses: more international, more compatible?

Free Software and Content licenses: more international, more compatible? Malcolm Bain, id law partners and UOC

Free software and even free content licenses were born and grew up in the USA. They have a US education (legal framework), a US look and feel (document style), and a US (legal) vocabulary. Specific examples are the original GPL, LGPL and GFDL licenses, the BSD and X/MIT licenses, the Mozilla PL, etc.

But just as the Internet has expanded and gathered more users, Free Software and Free Content know no boundaries. It is reckoned that GNU/Linux now receives more contributions from Europe than the USA [numbers], more projects on Sourceforge come from outside the US than within, and more content on the Internet is generated outside the US [numbers]. Certain projects have even migrated away from the US, due to certain restrictions like Export Controls (FreeBSD, in Canada).

On the other hand, licenses have grown from the 10 or so recognised FOSS licenses in 1985 to more than X licenses listed on FSF license page or 65 licenses certified by OSI. A nightmare for hackers and content producers (remixers, among them) alike. We even have an “EU Public license”.

Just when we may think that we are getting to grips with the compatibilities among software licenses (?!), along come a new breed of content licenses – the Creative Commons licenses in particular – with a new language (vocabulary), background (legal framework) and several varieties (copyleft, non copyleft, etc.), that are not necessarily compatible with free software or existing free document licenses.

Finally, online platforms are getting more and more sophisticated, mixing or aggregating content with technology – requiring higher levels of compatibility between software and content licenses, e.g. spoken text under free content licenses incorporated into accessible web platforms.

These issues of compatibility and internationalisation have basically meant a large headache for project leaders, content mixers and editors, platform builders and … fees for the legal profession. And we know that free software projects and educational / research projects don’t have a budget for lawyers.

So from a legal point of view, the free knowledge (as a generic concept for both technology and content) has met with unnecessary legal barriers: licenses that are not understood in non-US legal jurisdictions – or that may have different impacts in those jurisdictions, and incompatibilities when mixing software or content. [examples of problems – license choice, integration of components, integration of software and content, Wikipedia (J Wales comment)]

What has happened over the last 3-4 years? We have seen a move to make licenses more compatible and more international

Internationalisation: GPLv3 seeks specifically to remove jurisdiction specific terminology, and does not apply any specific law o jurisdiction for resolving conflicts. This second point has also been taken up by the Open Source License (provider specific) and the CDDL adaptation of the Mozilla License. Creative commons has taken another approach: adaptation of the general terms of the license (principal provisions) to many jurisdictions, with version 3 providing that each “principal provisions” is compatible with the same version under a different language and legal framework. This should achieve international compatibility while allowing content providers the certainty of offering content under their own legal framework – something especially useful for public administrations.

License compatibility: one of the other important objectives of GPLv3 was to become more compatible with certain licenses – the Apache 3.0 in particular - , and remove “objections” or obstacles to compatibility on non-IPR based characteristics that are not fundamental for the FSF: different wording for disclaimers, different wording for patent clauses (while maintaining an acceptable framework) or specific requests regarding trademark usage or promotion. This type of difference no longer creates incompatibility for the GPLv3. Hopefully, the GDFL will go down the same road, and try to achieve compatibility with the Creative Commons BY-SA license, which will help out the Wikipedia enormously. The EUPL has taken a different road, including an annex of specifically acceptable license, which, while not necessarily being compatible with the terms of the EUPL, are or will be considered compatible for integration and redistribution purposes. The Sakai community has adopted an Apache style license that should help interoperability – while responding to the concerns of the patent-holding academic community.

The preliminary conclusion – pending more detailed analysis of the interaction of the GPLv3 with other licenses, or mixing with CC BY-SA or just CC-BY licenses - is that while license proliferation and jurisdictional issues have been causing problems, it seems the free software and content community is generally speaking on a road to greater “harmonisation” between certain “key” - if not all - licenses. This will be a major step towards improving the production and sharing of educational and training materials