Thank you for the introduction, Bradley.
Just to give a bit more elaboration.
My name is Gabriel.
I am a legal program manager with the Free Software Foundation
in Berlin and Germany.
And that means that I'm a former lawyer.
And I currently manage the legal projects at the FSFee.
This includes a EU-funded project called Next Generation Internet
where we provide funding and technological support
to Free Software projects around Europe.
That kind of provide alternatives to existing proprietary
Internet infrastructure or proprietary Internet applications that are widely used.
And this is important because it's important to provide Free Software
for all alternatives to these proprietary products that basically control
our Internet and our digital connectivity.
And I also write articles about the FSFee's legal corner.
So if you're interested, this is not working as well.
Yeah, so if you're interested, you can check us out at FSFee.org.
Yeah.
So as Bradley mentioned, I've been tasked today with providing kind of a introduction
to the law and to Free Software and how the law interacts with Free Software.
And this is so that we can kind of frame and contextualize the discussions and the sessions
that we'll have in the rest of the day to come.
And I think those, like Bradley mentioned, those who attend this dev room
traditionally from what I've seen have been quite familiar with the legal frameworks,
but we often also have a lot of developers, a lot of people who are non-boyers,
who do not have a legal background.
So this introduction is for you.
And for the lawyers in the crowd, ask your patients if we go through some very commonly known
language in this field.
So yeah, let's get started.
Yeah, when we talk about law and Free Software, a lot of the time lawyers would be
simply thinking about intellectual property law.
And I know in this Boston crowd, among developers, there's some philosophical discussions
about the term intellectual property, about the limitations of how it's defined,
about whether it's an accurate description of what we're talking about.
But for the context of what we'll be talking about today,
we're going to talk about intellectual property law as the rules are established.
So it's an unfortunate side effect that we will have to use the term intellectual property
as I guess a short hand.
Yeah, and when we discuss legal issues around Free Software,
it is almost in a scalable way that we always have to talk about one aspect of intellectual property law
and then it's copyright law.
So what is copyright?
Yeah, that's my intellectual property law professor from the years ago.
So nicely put it in her textbook, which I still used today.
Copyright is a legal construct that grants someone exclusive rights
over a particular piece of creative work.
Now what does that mean?
So when we talk about a creative work, this is a very broad definition.
A lot of things can be considered to be a creative work as long as it's created by a creator
or we usually refer to them as an author.
So this would include things like written expression, a poem,
an essay, a book.
It can be a piece of music, a song, a jingle, a film,
a bloody blood law, et cetera.
And for our purpose of today, of course, source code and software
are also considered to be creative works that are protected by copyright.
So by default, only the copyright vendor or the author
is allowed to make copies of a work and to get copies of the work to serve parties.
That's the main right that is provided by copyright, right?
The rights that provided are implicitly defined by the term itself,
the right to make copies.
And by default, only the copyright holder has the exclusive rights to modify the work
and to make it publicly available.
And in the case of software, that for example means only the copyright holder
has the right to offer it up for download for example.
Now the main takeaway that you should kind of get from the definition of copyright
is that copyright applies by default.
So as soon as someone makes a creative work, copyright is created as well.
It's inherent in the creative work.
The author inherently possesses the copyright
over that piece of work that they have just created.
But in terms of free software, this presents kind of a legal issue
with this kind of a legal problem because this means that when you like source code
when you create a software program, that program that source code is inherently un-free by default.
Yeah.
And I also think back to this funny tweet by Kat Walsh, who is also a lawyer.
But many years ago, the kind of encapsulates the situation
and the misconceptions that a lot of people might have regarding creating software.
So the original tweet says, you know, give me a hard story from your speciality.
He five words or less, and Kat says, no license means public domain.
And yeah, this is kind of a hard story, but lawyers, you know, because as we said, you know, copyright is inherent.
And software is non-free by default.
So it doesn't mean that it's public domain.
And, you know, in our work at the FSF, we often also see a lot of developers
become across quite a few developers who do not license their work.
And they think that, you know, okay, because I've written the source code
because I've created this piece of software with my intent to make it free software.
You know, it must be free software.
But as we've seen from the definition of copyright, this is not the case.
If you create it, it is inherently copyrighted.
And therefore, it is inherently proprietary software.
Yeah.
And similarly, we've also seen some developers, you know,
they come across interesting repositories online.
And these repositories might not have a license attached to them.
And some people might think, okay, there's no license.
Therefore, it's public domain.
Therefore, I'm within my rights to kind of take the source code.
I can reuse it into my own repositories.
And they do that.
And that is a legal problem in itself as well, because as we've been through,
no license means copyright.
And they're not allowed to do that.
So what they've done is actually technically illegal.
Yes.
So as we now know, no license actually needs the copyright holder
has ultimate control over the project.
It means that you cannot copy or use anything in there.
And that's why you have licensing, right?
The license is there to kind of change the status of the software
from being unfree by default.
And software basically has to be big into free software, right?
Through the application of a license.
And to be more specific, it needs to be made free software
through the application of a free software license.
Sorry, I have a very bad memory, so I need my notes.
Yeah.
So what is the license?
So generally, a license is an official permission
granted to do use or to own something.
And I think it's useful to think of something like a driver's license.
Right?
If you break down on the driver's license actually is,
it is a specific permission granted to you by the state, right?
To allow you to drive your car on the roads.
And you do not have the inherent right to drive your car on the roads, right?
You don't see 10 year olds or whatever being allowed to just, you know,
go up on the roads just because, you know,
because they don't have the inherent right to do so.
And you need to be able to get permission in order to do so.
And you get that permission through your driver's license.
So if you apply that kind of thinking in the context of software,
the license therefore functions as a permission given to you by the license sore
or the copyright holder that kind of defines the terms,
under which the copyright holder allows you to use their software, right?
And if this license is given to you,
if this license also grants you the third freedoms of free software,
the freedoms to use, to study, to share, and to improve the software,
that software is free software and that license is a free software license.
Now you also get licenses that grant you one or more of the fourth freedom,
but not all of the fourth freedom.
And if you have a license that doesn't give you all four freedoms,
unfortunately, that is a proprietary software license, right?
So you need all four of the four freedoms in order for that software to be considered
to be free software.
Not a single one can be missing in order for it to be considered free software license.
Otherwise, we would consider that a proprietary software license.
Yeah.
And for developers, if you're going to choose a license,
yeah, you need to be aware of the different types of free software license or,
sorry, the different types of licenses out there.
So I've been kind of categorized them into four categories up on this slide here.
You have your public domain licenses.
You have your permissive licenses, your copy of that licenses,
and your proprietary licenses, right?
So basically, yeah, software licenses can be classified into these categories.
Based on the types of rights that are granted or the types of rights that are retained
to the copyright offer,
all the types of obligations that are placed on the user in order to allow them to use the software.
So in one of the spectrum, you have your public domain licenses.
And these licenses basically kind of act as waivers of copyright.
They want to transfer all or almost all of the copyrights from the copyright holder over to the public.
And when the owner of the copyrights waves all this rights,
the software is considered to be part of the public domain.
So in some jurisdictions,
the owner waving their copyright might not work to place the work in the public domain.
In Germany, for example, the copyright holder might be able to say,
I wave all my copyrights, but it's not, can I continue?
Yes, yes, sir.
Yes, it doesn't really work to place that work in the public domain.
In such cases, the use of certain types of licenses can be useful to do that.
And a commonly used license to do this is the Creative Commons CC0 license.
And this essentially allows authors or copyright holders to kind of wave their copyrights to their work
and place them as completely as possible in the public domain.
And then you have your permissive licenses, which we also call non-recipical licenses.
So they refer to free software licenses that guarantee that the users are,
they're able to enjoy all the four freedoms of free software.
But we also call them permissive licenses because these licenses come with minimal requirements about how the software can be modified and redistributed.
So in other words, they come with minimal licenses, sorry, with minimal obligations placed on the user by the license sort,
in order for them to use the software and that's why they're kind of called permissive.
And the drawback to these kind of licenses is that because they are no,
that there's not so much restrictions being incorporated into the license terms because they are so called permissive,
downstream variations of the original work can be realized and can be made into proprietary software.
And yeah, as an advocate for free software, this kind of, we can kind of see that this is a drawback to having as much free software out there in the ecosystem as we can.
And examples of these kinds of licenses would be your MIT license or your party license,
and I think I'm not sure if my statistics are up to date, but I think the MIT license is the most widely used free software license out there.
I might be wrong, those numbers, I looked at a couple of years ago, some things might have changed, but yeah, it is a very, very commonly used license, the MIT license.
And then you have another category of licenses, copy that license, which we also refer to as reciprocal licenses.
And these are also free software licenses, they have license terms that grant the full free answer free software to users.
But the underlying idea behind copy left licenses is that these licenses, they give you, or they place on you certain types of obligations.
So you can modify the license code and you can distribute new work based on it, but if you do so, you are obligated to distribute your derivative work on the same license terms under the same license as the license that you received the work from.
So this is kind of, that's why we call this reciprocal, you know, you reciprocate the license terms in your derivative work based on the original license terms that you received the work under.
And you can see the kind of difference in copy left licenses from your permissive licenses in this regard, because of this obligation to maintain the license terms in any downstream variations.
Yeah, you ensure that there is as much free software, there is as much of the full freedoms in downstream variations of versions of the code.
And this is, I think, kind of, one of the best ways we have, I would say, to kind of ensure that the ecosystem has as much free software out there as we can as we can.
And yeah, examples of a couple of licenses would include your GPL, family of licenses, and also your European Union public license, the UPL.
Yeah, and of course, as I mentioned before, if you have a license that provides only three or less or like if it doesn't fully provide all four freedoms.
Of free software, how much you have is a proprietary license, and that's on the other end of the spectrum from your, from your other free software license, right.
So yeah, I could talk much longer about free software, copyright licensing and the nitty gritty of all these stuff, but I think we are quite limited by time today.
So I won't go on into these details. I will mention that at the FSE, we do conduct training on basic legal topics relating to free software.
So if you have a team of developers who you think would benefit from a much more detailed basic legal kind of explanation of law and free software.
Now, please feel free to get in contact with us. I will leave our contact information at the end of this presentation, right.
But I like to quickly pivot now away from the intellectual property law to talk a bit more generally about law and free software in general, right.
So yeah, free software has had quite a long history now. I would say the GNU project was established in 1983.
The free software foundation was founded in 1985, and the four freedoms of free software were published in 1986.
Yeah, and that's basically like what? 40 over 40 years of history of free software.
And in that time, people have been kind of purring over the minutia of this licenses out there.
You know, we've been developing complicated bodies of law, of knowledge and of texts, documenting and talking about things like licensing, compatibility, all the...
Yeah, if doing with all the nuances of licensing of copyright law, both for free software and for proprietary software.
And that can be very interesting for law nerds, such as myself, but it's also important to remember why we have these discussions about licensing, what about copyright about law and free software.
And at the end of the day, for free software advocates, you know, licensing copyright, intellectual property law, applications of the laws and regulations, they're there to serve a larger societal social purpose, right.
And that's to support, uphold, and to be able to enforce the free, the free, the free freedoms in society.
And I think it's very important that we don't use sight of that greater kind of goal.
Because for those of us who believe in the rule of law in democratic systems that protect our fundamental rights and in free software,
I think it's easy to see how the first freedoms are essential towards building a kind of a transparent, open free digital society that kind of benefits the every man, the every person.
And it's very important to have these laws and rules down on the books that clearly support the four freedoms.
And yeah, one legal tool that we can use to accomplish that is actually strategic litigation or another word for is impact litigation.
And I'll just borrow the definition from the European Center for constitutional and human rights.
Yeah, strategic litigation is legal action seeking to bring about social change with an impact beyond the individual case.
It gives a platform for people affected by rights violations to be seen and heard.
It triggers discussions of these violations and it highlights weaknesses and gaps in the law.
And this is something that we can see happening as well for software freedom.
For supporting people who should have access to the four freedoms being denied them in some purpose.
Like, for example, when companies do not abide by license terms when they receive source code or software that might be licensed under free software license.
And I like to point out this example in the Spanish Supreme Court of a kind of a successful relatively successful example of a strategic litigation in the field of free software.
So I'll just quickly go through the facts of the case with this case.
So that's the in Spain.
I don't know if there's any Spanish people in the audience here, so please correct me if I'm wrong about this policy.
But there is a policy existing in which low income households are able to receive discounts on their electricity bills.
And as of 2015, this policy was administered by a state run software called Bosco.
And during that time when Bosco was introduced, many people, many households who were technically supposed to receive who were supposed to have been considered eligible to receive this discount.
They found themselves being rejected in their applications by Bosco.
So this led to kind of the suspicion that, okay, maybe the law might be correct in who it wants to provide discounts to.
But the source code of the program that's being administered to to give out these vouchers might not be working as intended in accordance with the policy.
So because of these suspicions, one thing led to another and that ended up with a civil society nonprofit named Sidio,
suing the Spanish state for access to Bosco's source code.
So what's important to what we're talking about here today is that, well, the results of this judicial process, it went all the way up to the Spanish Supreme Court.
The Supreme Court ruled that are just kind of read this out here.
A general support of transparency and the freedom to study should be supported by clearly stating it clearly stated that Sidio's initial request for access to Bosco's source code should be granted.
Now, in doing so, the Spanish Supreme Court kind of established a president that, you know, if if you are a public administration, you're applying a source code or for purpose that affects social good or kind of society at large.
It is necessary to it is constitutionally necessary to provide transparency and the freedom to study to the public at large because he's because this is extremely important in accordance with the principles of a democratic state.
And basically, we can break the judgment down into these four main points, right access to source code can be needed to verify automated government decisions.
It's kind of disappointing that it can instead of must here, but we take what we can get.
So, called intellectual property rights, do not automatically block transparency. Security concerns must be balanced against democratic accountability and transparency is especially critical for systems that affect our social rights.
So, this case is, I think, a demonstration of what strategic litigation can do in the context of free software, right.
It can bring about broad social changes beyond the scope of the individual case at hand, if we go back to the definition that we were talking about earlier.
And yeah, it's another legal tool, basically, in our arsenal, to, in addition to, like, complying with and to applying copyright laws and licensing.
It's another legal tool to tackle free software issues that have not been adequately addressed in legislation in policy and in the law.
And I think, additionally, one of the other issues or problems that free software has kind of traditionally grappled with is the lack of knowledge at large about free, about software freedom and kind of digital technological functions in the legal profession, right.
So, like, lawyers drafting arguments or judges presiding over cases or drafting legislation, etc.
They might not have the same kind of knowledge that developers or lawyers were really into this kind of technological side of things might have.
When that is always a problem in how rules are interpreted with regards to software.
And with strategic litigation, it kind of forces lawyers kind of forces judges to confront these topics.
And I think we've come quite a long way now with more judges and lawyers understanding concepts around software freedom and software licensing in general.
Right, hopefully for those here today, this we're not particularly immersed in the legal side of things that gives you some idea of the basis and the actions on which legal topics in free software are built on.
And from the perspective of someone who's not developer, I've never been on the creative end of things with regards to software I've always been a lawyer.
But, you know, I, I was born in the 80s, I grew up in the 90s and that was kind of a time where we saw kind of rapid technological progress, right, in terms of our digital technology that the the every person is has access to.
And the kind of digital connectivity that was available to us.
And, yeah, I mean, it, it felt like it opened up the world.
It felt like it made knowledge, experiences much more accessible, made me feel more free for one, even if I didn't necessarily have the technological expertise or knowledge to fully take advantage of what software had to offer.
But, you know, I think if we look back on the last decade, things have kind of changed.
We've had to watch digital technology and digital connectivity kind of get increasingly captured, right, by those with the most resources by mega corporations, by state governments, by special interests of the wealthy.
And I think there's this pervasive feeling, and at least I feel this pervasive feeling that techno optimism is kind of did.
With every new digital technological development now, there's less excitement, there's less hope about how we can improve our lives and more this feeling of oh god what now.
And I mean, personally, I don't think that free software and the four freedoms are the server bullets are the singular thing that will cure all the social else that is kind of enabled by digital technology to date.
But I definitely think that, you know, free software is a foundational part of that solution, right, of guaranteeing through the four freedoms that.
The other kind of foundational rights that we have.
So I think it's valuable to think about what other legal instruments, what other rights we have in that are assured to us legally.
Yeah, under other legal instruments, you know, if you think about things like the European Convention of Human Rights, if you think about your constitutional rights granted to you or the bills of rights that are available to you in your own countries.
Yeah, those are the fundamental and foundational rights that you show us also be thinking about what you think about free software.
Because, you know, we live in a world where so much of how we function in daily life and in society depends on software.
It's not difficult to see how free software supports our ability to enjoy these other rights, you know.
So think about like things like your right to privacy, right, like free software helps by allowing us to know what the software that we're using is doing with the data that we provide it.
Think of things like your right to vote.
There's so many jurisdictions now that use or employ some some kind of electronic voting, even here in Europe.
And, you know, can you be assured that the software involved in these kinds of processes is registering and is counting your vote properly.
If it's not open for review, if you do not have the freedom to study its source code.
Think about something like the right to be free from discrimination, you know.
How many companies are out there, you know, that you some kind of electronic or digital applicant tracking system, right, to filter and to process their job applications.
And, how can you be assured that, for example, it isn't discounting someone with a non-European sounding name, for example, how can you know that for sure if that software is not transparent, if you don't have access to the source code.
And so, like, I mean, these are just some examples that I've put together, but I think you can find a lot more if you kind of also examine how software affects or how it processes or how it is used in other kind of rights and other kind of daily things that we do in our lives.
So, yeah, it is of the utmost importance that we establish rules and laws to support the four three terms of free software.
Yeah, and it's important that we make sure that these rules are followed and enforced to ensure that, you know, our civil, political, economic, social, cultural rights are not easily threatened by closed technological development.
And, yeah, I think that's something that we will be able to kind of discuss and see here today as the dev room progresses throughout the day.
Yeah, and, you know, I think we'll be hearing more from our speakers on this as well.
Like, I see on the schedule that Denver Gingrich from the Software Freedom Conservancy will be talking about also other strategic litigation efforts that they're involved in against visual in their efforts to enforce the GPL.
We'll also have a panel discussion later discussing interoperability regulations in the EU and which regards to iOS and Android and it's also.
It's valuable to remember that Apple is currently umbrella in kind of a litigation effort to resist its designation as a gatekeeper under the digital market's acts of that something that I think we can discuss later in the death.
We'll see a more about the policy efforts that speakers are working with on a national level ranging from the Netherlands to Taiwan and also at a EU level with the discussions about this year and the DMA.
But I think when we go through all these talks, it always bears remembering the foundational point, right?
How is this software? How does this legislation? How does this law, this action? How do these laws that apply? How do they support the first freedoms and in so doing, do they support a digital democracy and our fundamental rights?
And I guess that's all I have for today. I'll conclude and hand the floor back over to the devroom organizers.
But if you'd like to get in touch with us with me or with us as a fee, our contact information is up here on the screen.
So thank you.
I'm not for whatever.
If you're going for a political role, or you're wanting to influence a political role, can you want to influence a political role, or do you want to influence a political role?
I think that's the best question we'll make for this.
Can I talk that over to you?
I think it's a good idea to look where to look.
Okay, so the question was like, if I may be putting the questions or how do you know how to best approach like your digital politicians, if you want to talk to them, everything to ask them.
So I think it's pretty much depending on the knowledge that politicians might have, so I would do some research beforehand and try to figure out, like, where could be, like, common crown to talk about and then I would start from there.
So there might be some that talk about technological or digital.
As a run or T-day state, these days, or that, like, at rest, I'd already, the development of things we have, this big tackle, something like this, and this is where I would just try to research around this person and try to figure out what he's already talking about and try to find common crown and start from there.
And then start this introduction of, like, free software, why it's good to have and what are the benefits compared to the properties of it, and then go from there.
So I would not, like, give a general answer to this, but recommend to do some research beforehand in the first place.
Lovely.
Also, maybe another announcement, so we try to keep the doors open during the break now to get some better air, and we also have some air purifiers here, but that's all what we can do.
So we are limited to these few windows that we can open, so we're just sorry about that, we try to get in fresh air, but that's the only thing what we can do.
Also, we can't really ask you to take seats, so please do not stand against the walls or, like, hang around in the room, but please take seats, that's for security reasons here, that for some people would pretty much appreciate it to take seats.
Yeah, so it's all like the effect in the middle of the chairs, try to make place for others, so that when people end up doing the talks that they easily can find the seat that would help us a lot.
If you have to leave in the middle of a talk, it's totally fine, that's a buzz and all about if you want to come in or leave, but try to use the door in the back, it'll be a lot less disruptive to the talk.
Does anybody have any other questions for Gabriel about introductions to legal issues?
Okay, so the question was, how much code do you need to write before it can be considered copyrightable?
I think that's a tricky question.
You give an example that I have no idea about, as I mentioned, I'm not a developer, I'm a lawyer, but there is something called a threshold of originality in copyright, so you need to cross this threshold in order for your contribution or what you create it to be considered copyrightable.
It's difficult for me to explain or express this in the short time that we have.
I would say it needs to be something substantive, and if you write something like, hello world is absolutely not copyrightable, it's simple enough that it's not copyrightable.
I think that the general threat for what something is considered copyrightable is, did you have some kind of intellectual intent behind creating a creative work?
And then we go from there, I'm sorry, I have little an article about this, a lot of it escapes my mind now, because as I said, I have a very bad memory.
It is on our legal corner, and you can read it, it's an article about the threshold regionality, in which we have some examples, I think, when you look through it, it can help you understand the threshold regionality a bit better.
From the US perspective, there's no like some people have it in the past sort of set a certain number of lines of code is the right minimum under US copyright that that's simply not the case.
It's similar to what Gabriel said, which is that it needs to be a work of creative expression expressed in a tangible medium, so it has to be creative expression.
So something very, very simple would not be that the threshold has generally been pretty low as interpreted, I think that might be changing in the way that copyright laws are being interpreted, but it'll be interesting to see.
But there's definitely like no easy bright line test, so it's a little complicated, but you can probably assume that if you're putting something that has copyright.
Sorry, I saw that you have a question and you have a question, but I know, but I just also wanted to mention something interesting, because they have been cases where two people have kind of created the exact or more or less the exact same thing, and because both of them have acted independently and with this kind of creative intent, both of their works have separate copyright over them as well.
So that's something to also think about. It's very subjective, and it depends on the intent and how the individual creator has done so.
I'll just move on, yes, your question?
Yeah, so the question was about, like, I suppose, like, how do you consider copyright over AI-generated LM-generated works?
Yeah, I think currently the general consensus in copyright law is that for a work to be considered copyrightable, it needs to be created by human being, right?
In practice, I don't know how you can actually kind of prove that, if someone comes up and says, oh, I'm going to copy this, because it's not copyrightable, it's created by AI.
And someone just says, no, I wrote this, you know, there's no practical way, currently, so it's kind of a gray area, right?
And yeah, I mean, I think I'm not too sure Karen, stop me if I'm just rambling something, but I think it's also depends on kind of the terms and conditions of the model that you're using and how they define it.
As I said, it's a gray area, it's not really been litigated.
Yeah, there's no general consensus, like, the cases are important.
Yeah.
Yeah, it depends.
Yeah, so thank you, and I'll wrap it up.