Workshop: Legal aspects of free and open source software
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Warranty
The covered work is given without warranty, except one: the original licensor and
every subsequent contributor grant that they are the authors (or received licence)
for their own contribution. This contributes to the security of the licence (regarding
possible copyright infringements) and is finally the type of requirement that you will
find in all reasonable contributor agreements.
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Reference to the European Court
Taking advantage of the treaties (TFEU) the EUPL benefits from interpretation by a
unique jurisdiction: the Court of Justice of the European Union. In addition, the 28
Member States jurisdictions can address questions and be supported by a single
European Court.
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Variable “Copyleft”
The EUPL is “copyleft” on code and binaries, but this share-alike effect is, by
exception for interoperability, variable
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in the case of combined derivatives (see
section 4 hereafter).
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Innovative ethic of interoperability and freedom
These ensure that there is no exclusive appropriation of the software.
4.
INTEROPERABILITY OF THE EUPL
KEY FINDINGS
The EUPL has traced an original way to be “copyleft” and interoperable with other
licences.
This facilitates the development of other “son & grandson” projects, but has no
impact on a project covered by the EUPL: there is no project relicensing.
The notion of “strong copyleft” is still unclear and it may be that it could not be
enforced in Europe.
The EUPL approach is pragmatic, avoiding exclusive appropriation of the covered
code without preventing some reuse in the framework of projects with a commercial
goal.
4.1.
What is legal interoperability?
Interoperability (at licence level) is the possibility to reuse the covered code in other
projects, possibly in combination with code(s) covered by other licences, while keeping the
freedom to distribute the resulting combination, even when considered as a derivative work
under copyright law.
Interoperability is a non-issue with permissive licences (as the BSD, the MIT) because they
implement no conditions for copying or merging the covered code, even inside the software
code of proprietary applications.
However, interoperability is an issue when a declared objective of the licence is to keep the
covered code and its evolutions under FOSS conditions, in order to avoid its exclusive
appropriation.
The EUPL is a Share Alike (or "Copyleft") licence. Thus, the following question is often
posed: How strong is the EUPL “copyleft”? In other words, how far must any re-distribution
be done under the same EUPL licence, according to a share alike principle? And therefore,
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The notion of « variable copyleft » was coined for the EUPL by Rowan Wilson (Oxford University)
http://www.oss-watch.ac.uk/resources/eupl
Policy Department C: Citizens' Rights and Constitutional Affairs
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is the work protected from subsequent distribution under other licensing terms, which could
lead to appropriation for the benefit of a third party software vendor?
In Europe, there are still some doubts whether “strong copyleft”, whereby simply linking
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the code covered by a "copyleft" licence with another source code automatically extends
the coverage of the licence to this other source, would be generally considered lawful (in
any EU member state and whatever the licence, GPL, EUPL or any other could be). There
are specific exceptions for interoperability implemented by Directive 91/250 on the legal
protection of computer programs. In May 2012, the Court of Justice of the European Union
interpreted Directive 91/250, "as meaning that neither the functionality of a computer
program nor the programming language and the format of data files used in a computer
program in order to exploit certain of its functions constitute a form of expression of that
program and, as such, are not protected by copyright in computer programs for the
purposes of that directive"
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. Although this judgment was not taken in the framework of
free software distribution, it might have repercussions in this field, too. More particularly, it
might mean that, by licensing his/her work, a copyright holder cannot prohibit the
reproduction and distribution (under any other licensing terms, FOSS or non-FOSS) of the
specific portions of the code that are strictly necessary for linking / implementing
interoperability between the licensed program and other works, that is the data formats or
APIs (application programming interfaces). Hopefully the Court will have the chance to
clarify this matter in future case-law.
4.2.
The normal case
Under the abovementioned reservations, we can state that the EUPL “copyleft” is as strong
as possible, on code and binaries of copies and all derivative works, with defined
interoperability exceptions. Let’s first consider the normal case with regard to the
distribution of the code (although a project is not only the code, but also other important
assets (brand name, logo, site, DNS etc.)):
Figure 2: Derivative – the normal case
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A project "ALPHA" is more that just its software code: it is an organisation, owned
by a person or a body, with an active community of developers, a web site, DNS,
logo etc. Globally, this project "ALPHA", can never be "re-licensed" outside the will
of its original licensor (who is free, as the 100% copyright owner, to provide
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Linking makes two software working in a single application without merging their source code.
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Static linking combines components through compilation, copying them into the target application and
producing a merged object file that is a stand-alone executable.
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Dynamic linking combines components at the time the application is loaded (load time) or during
execution (run time).
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http://curia.europa.eu/juris/document/document.jsf?text=&docid=122362&pageIndex=0&doclang=en&mode=re
q&dir=&occ=first&part=1&cid=564907
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