Note: Updated to include lock-in and tying. Some changes on moral rights to clarify that
Laws are more often than not an annoyance, despite their aim to improve the legal framework in any given field. Free Software (AKA "Open Source") has thrived despite the absence of any legal recognition by the law, if not in spite of rules that clearly are shaped around proprietary software. In many jurisdictions it has passed the enforceability test. So, no laws seem necessary to make it work. Yet, can some legal principle be put forward, and included in some laws, to help?
"If it works don't fix it", so goes the common saying. But if it works now doesn't mean it will work forever. It is nevertheless upon lawyers, and legislators alike, to foresee problems ahead of their actual happening, and brace for the potential harmful event. But any laws that would regulate Free Software would likely harm some parts of it, and change the games to favor one kind over another, or impose conditions that are not welcome or productive – something that legislator, even with the best intentions, often do – and in general could cause as many troubles as they would produce benefit. "Primum non nocere" is the paradigm for medical actions, even though drugs by definition only produce a net benefit by inflicting some limited damage. Is there a medicament that has entirely good effects without any negative ones? Arguably there is not. But with laws we can achieve something closer to this optimal benefit, which economists know as "Pareto Efficiency".
So this is a call for Pareto Efficient Laws, and Pareto optimal only laws.