Communities of developers of free and open source software can create their own governing laws, using more than just their software licences, say two Irish researchers Ian Ó Maolchraoibhe and Maureen O'Sullivan, from the National University of Ireland, in the city of Galway. The two are currently working on an academic paper, a follow up to the presentation they gave at the Fosdem conference in Brussels earlier this month.
In their Fosdem talk, the two researchers compared the rise of open source development communities with the Medieval Merchant Law (lex mercatoria). Asian, European and African traders in medieval times resolved trading disputes in their own courts, using a mix of customs and best practices. "In the absence of national or international laws, these traders started their own system, which eventually became part of international commercial law."
This is similar to how developers of free and open source software are finding solutions to weaknesses in copyright laws to cover their software, the two argue. The open source community cannot rely on copyright alone to ensure compliance with the licence, the two academics said at Fosdem. Free software licences are a contract between the developers and the users, but, say the researchers: "No two jurisdictions share a common copyright standard nor a harmonized contract law."
Updating the software licences will not have much effect, expect the Irish researchers. "The legal paradigm is unfit for purpose."
At Fosdem, the two suggested that getting international bodies such as the United Nations involved could help. "An international, legal binding document could be drafted, a UN Convention on the Rights of Software Sharing and Reuse." Alternatively, choice of law clauses could be included in the licences by agreement between both parties.
Legally Cementing Licences in Legislation, at Fosdem
Legally Cementing Licences in Legislation (presentation, odp)