Report sent to FSF regarding participation in panel Software Patents and DRM - 2nd. International Conference on GPLv3

At your request, I send this report to Software Freedom Law Center, registering the main points I had the opportunity to raise at the 2nd. Conference on GPLv3, held at Fisl in Brazil April 21-22 2006 (sent April 26).

Background 0: citations of a session number in the GPL in this text refers to GPL version 2

Background 1: lawyers have voiced opinions that Brazil has one of the toughest consumer protection laws in the world, here known by its acronym CDC. Since a politically charged judicial environment can apply such statutes selectively, some free software advocates have here come to rely on clauses in the GPL (v2) which can be useful to deflect implied warranty responsibilities for copyright holders, enforced here by the CDC wherever a "consumer relation" is established.

Background 2: Brazil, the legal protection bestowed on software is that of authors' right (law n. 9.609 from 1998, of French ispiration under Roman-Germanic tradition), specialized by a law specifically on software as work of authorship (n. 9.609 from 1998, known as "software law"). In its article 8, Brazil's software law obliges the author of a computer program who "commercializes" such program, or someone who holds and exercises the rights for such commercialization, to offer optional warranty protection with respect to the program's operation, during a specified period of time.

Background 3: its article 9, Brazil's software law dictates that the use of a computer program in the country "shall be the object of a licensing contract".

a. Regarding the nature of the GPL: Brazil's legal ontology regards any kind of legally significant agreement as a contract, the way to avoid the characterization of the GPL as a "contract for software commercialization" (yelding unintended responabilziations for copyright holders) is to point out that it is, first and foremost, a unilateral beneficial contract (contract in the local sense), given the first sentence of GPL session 11, which states: "Because the program is licensed free of charge,..."

b. Regarding Brazil's "software law": first half of the last sentence of section 1 of the GPL grants a licensee the right to charge for the act of transfering a copy. If this right is exercised, this can be characterized (for the purpose of applying Brazil's sw law) as a commercial act pertaining to software. In this context, the responsibility to comply with art. 8 of Brazil's sw law (mandating the offer of warranty protection) is directed to the licensee who charges for the transfer of a copy, under the rights given to him by last part of that same sentence (last of section 1), and not the sw's author or copyright holder, who is not commercializing the right of anyone who come into possesion of a copy to use it, given the first sentence of session 11.

c. Regarding Brazil's consumer law: A "consumer relation" ensuing from the binding of the GPL to any act can only be meaningfully construed (for the purpose of apllying Brazil's CDC) with respect to the transfer of a copy. In this context, regardless of whether or not the right to charge for transfering such copy has been exercised, the implied responsibility for such a consumer relation act pertains to the integrity of the stream of bits transfered (the correct checksum of the files), and not to the functioning of the software (separately negotiable as per the last half of the last sentence of section 1). This seems to be the case since the right to use the program is not being consumed, but automatically, gratuitously and non-exclusively granted (given the first sentence of session 11) as a result of a copy transfer being consumated.
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d. Problem:Therefore it is worrisome to see the first sentence of session 11 desappear, without justification, from the corresponding session in the draft of v3.

e. Scope: it should be pointed out that the value of such language, to protect copyright holders from overzealous abusers in jurisdictions of roman-germanic tradition, of french-inspired author's law and of strong consumer protecion law other than Brazil, may be affected as well.

f. Suggestion: Given the above points, perhaps some language to explicitly state that the right to use the software is being granted free of charge should be reinstated in the draft of v3, in substitution for the previous justification to the no-warranty clause, since such language is certainly useful in many jurisdictions outside the anglo-saxon tradition.