Free legal protection of software copyright law and its Implications
Analysis: Xiao-site Date :2005-11-14 15:04:37
First, the legal concept of free software
Legal form by the software to points, it can be divided into commercial software, common software, shareware and free software. "Free software" is relative to the commercial software and shareware for another type of software, its biggest feature is the software copyright owners to retain copyright, while the software source code by making "General Public License" (General Public License) all the way open, and give the user to run, copy, diffusion, revised and improved and other rights. Thus, free software is also known as "open source software", "free software" is the definition of the meaning of copyright law, and "open source software" is the technical features of software defined. [1] free software and commercial software to free and open a different mode of development and profit, and because "General Public License" The introduction of such agreements to protect free software also allows different ways of legal protection of software copyright protection in the traditional model, and explore the legal protection of free software in the road to derive such "copyleft" concept like the new law, these traditional copyright law gave great impact.
The first to propose free software (free software) is the concept of MIT Richard Stallman. In 1984, resigned from the Massachusetts Institute of Technology Richard Stallman developed the open-source software system GNU, shortly after he founded the Free Software Foundation (FSF). Free Software Foundation is committed to the elimination of computer software to copy, distribute, understand and modify the constraints, and all the computers in the field through the development and use free software to achieve this goal. In 1989, Richard Stallman and attorney who drafted the widely used GNU General Public License, (GNU General Public License, GNU GPL), and creatively put forward the "anti-copyright" (or "belongs to the left", copyleft) of concept. Appears in the Richard Stallman, Free Software is the common wealth of mankind, should be free dissemination. Free software "free" does not mean its price is free, but to the user to run, copy, study, improve and distribute the software free. [2] Richard Stallman wrote in his writings, "freedom" consists of four levels: First of all, the freedom to use the software; second operating mechanism for the research program, and modify it according to the needs of the user's freedom; The third was redistribute copies so that others can share free software; the four to improve the process, in order to benefit others and distributed it free. If software users with the above-mentioned four kinds of rights, then the software can be called "free software." If users do not authorize or pay any license fees can be engaged in these acts, they said he conferred with free software freedom. This kind of "freedom" of the free software and other types of software with different features, from a technical perspective, anyone can participate in the design of free software development; from a legal perspective, because anyone can participate free software development and the innovation on their part have certain rights. Open source movement's main theorist of Eric Steven Raymond once commercial software and free software compared to the "cathedral" and "market", commercial software development as construction cathedral, it is by a group of specific individuals scheduled time, as planned, and completed its ownership is also owned by a particular person for all; and free software is just like a market to accept any proposal and works, and smart to be managed, "bazaar" development from pre- program constraints, and any participants have equal rights, in the process of the software copyright owner or manager of the original and not based on the software users are asked to pay copyright fees, but only managed to charge distribution of certain software costs . [3] shows that, compared with commercial software in addition to using free software such as "free", there is a characteristic pattern of its development and profitability of openness.
Second, free software, copyright protection
In discussing free software copyright protection, first we have a clear point is the same as free software with commercial software has a copyright, "free" does not mean giving up on the legal protection of software. However, the development of free software and open-profit model, determines the legal protection of traditional commercial software protection methods are different. Richard Stallman that software development cooperation should be conducive to the public, but not for personal business interests. He founded the Free Software Foundation's mind some of idealism: the protection of the sustainable development of their own free software and free software development model to expand to other software types, ultimately makes all the software liberalization. But this idealistic model of development in some of the problems encountered in real life: how to solve the free software development and maintenance costs and how to prevent others from monopolizing the free software or proprietary behavior and the use of privatization and other issues, [4 ] These problems are related to the existence and development of free software. Richard Stallman realized that idealism must be achieved depends on the support of the existing legal system, as commercial software can use copyright to take away the freedom of users that can use copyright to protect the freedom of users. Accordingly, he drafted the General Public License, GNU (GNU GPL, referred to as the GPL).
1, General Public License, the main content
GPL is the Free Software Foundation released a software license license, is a free software on the copy, modify and distribute the copyright form system of rules. GPL is divided into three parts: Introduction, some specific provisions as well as instructions and sample some.
(1) Introduction. Introduction provides the purpose of GPL, free software "free" in the meaning of free software users rights and responsibilities, GPL protect the user rights of the two basic measures, on the free software there is no warranty and the attitude of software patents. The beginning of the preamble of the GPL on clearly defined purposes:
"Most software licenses are determined to take away your freedom to share and modify the software. By contrast, GNU General Public License is intended to guarantee your freedom to share and change free software - free software to ensure all users are free. "GPL pointed out that the freedom of free software has nothing to do with the price. GPL to ensure that users have the freedom to publish, access to source code, modify, its part of the software used to generate new free software, free, and ensure that users know they have these rights. Proposed introduction of free software general responsibilities and obligations: forbid anyone to deny or request to give up the right to freedom. However, if the user modifies the software or release of free copies of the software, the GPL's restrictions translate to their responsibilities. In fact, the user's responsibility to: free software must be given to the recipients all the rights, and should ensure that they can get the software source code, should also be to announce that they have these rights. This is entirely different from the traditional copyright rights of copyright owners exclusive only to the principle of normalization. Then GPL to take two measures to protect the rights of free software users: 1. Using copyright to protect free software. 2. To provide users with a permit granted to copy, distribute and modify the software, legal permission. In addition, because free software development and maintenance of open, GPL had to take care of the self-protection measures, its introduction a statement of the consequences of not providing security software applications. In order to prevent others from modified versions of the free software application for the patent after the privatization, GPL introduction, in conclusion, that: "any patent must be licensed for everyone free use or not licensed a patent."
(2) the free software to copy, distribute and modify the specific provisions of such section. Some of the specific provisions of Article 13. Respectively, the application object and scope of the GPL (paragraph 0), Summary of use (paragraph 1), the program changes (paragraph 2), open source (paragraph 3), warning (Article 4,5 section), GPL automatically take effect and can not be changed (paragraph 6), GPL and other legal methods of conflict resolution (paragraph 7), issued in different countries and use (paragraph 8), the new version of the problem (9 section), and follow the other permits the combination of software problems (paragraph 10), there is no warranty (the first paragraph 11,12) and other aspects of a complete and strict requirements. Through the provisions of GPL, free software to maintain the freedom of nature, and its continuity in time, expanding the scope of the space, so as to achieve the ultimate goal of the free software movement: all of the software is free software. GPL also took note of the free software and commercial software in which the coexistence of proprietary software environment, the flexibility to deal with the relationship between different types of software, various articles in the free software to maintain and expand the freedom of nature, but also pay attention to the nature of the free expansion to other types of software. [5]
(3) for use with the sample part. The last is its use of GPL instructions and sample parts, the part is a case of using the GPL in a variety of examples of the sample. The example of the beginning and end samples have an interesting contrast: the beginning of the sample in the sample, as usual, the requirement to specify "Copyright" statement, but in the end of the proposed "If necessary, you should also get your employer (if Your job as a programmer) or your school, signed by the Program "copyright disclaimer". "previous" Copyright "statement is to the traditional copyright to legally protect the free software, behind the" give up copyright ", it is converted to the GPL to the provisions of the copyright. [6]
2, GPL agreement to protect the legal characteristics of the way
GPL makes the production of the development of free software foundation, it means in real terms is a contract entered into by the copyright agreement. People and their rights of free software users through the legal relationship between the two sides of the license agreement that is to adjust the GPL, and copyright law such as contract law, the legal system is to support the role played. GPL free software copyright owner's copyright notice as the source of legitimacy to the contract approach to building software copyright and the legal relations between users. Only by following the terms of GPL requirements, the recipient can legally use the product. In a sense, GPL is a pre-written form contract. Meanwhile, GPL free software production also makes the legal protection of commercial software differs from the traditional copyright model. The difference in the following areas:
(1) Determination of the software copyright owner. There is no doubt that the original developers of free software is its copyright owner, the general who is the original licensors. Free software development process is a collective participation and ongoing process, then the follow-up to developers whether or derivative works created by their copyright? According to the traditional view of copyright law, follow the developer part of its independent development copyrighted, and that the right is exclusively his own. But according to the provisions of GPL, derivative works of the authors enjoy copyright works, but when he re-publish derivative works, will license the right to alienation in the original publisher, and derivative works of the user, as from the original permit on issuer obtain copy, re-issue and the right to modify the work.
(2) moral rights. The birth of the origin of its free software founder Richard Stallman and others on the "freedom of information sharing," the yearning for the ideal, they despise the software as a tool for private profit-making commercial behavior, but more attention to developing software and to share the results with the to bring the spirit of joy. So, the moral rights of copyright free software becomes more important than their property rights. However, the legal protection of free software and commercial software, the biggest difference between the legal protection has been reflected in the spirit of rights. First of all, the right of publication subject to certain restrictions. According to the provisions of GPL software as long as the acceptance of GPL, it must be published in the form of free software, open software source code, to comply with the relevant provisions of the GPL. And software programs on his decision to free software in the form of meaning that must be explicit. [7] contrast, traditional copyright law gives copyright owners are free to decide whether to express their published works as well as means. Secondly, with regard to authorship, GPL provides not only a right it is an obligation, GPL changes in the modifications required to sign and date modified, so that the modified software features poor and the reputation of the original works of adverse effects to ensure that no damage to the reputation of the original author. [8] Finally, GPL software, the power of amendment broadened the scope of the right subject, it no longer owned by the software copyright owner exclusive one. Any person who obtained the source code of free software can be modified, and can be modified name on the software. The traditional copyright law to restrict the right to amend the hands of copyright. GPL is in fact inspired the enthusiasm of the public involved in software creation, it is even more conducive to the development of software technology.
(3) property rights. Property rights for free software, GPL stipulates that no one can monopolize. The traditional copyright system gives copyright owners exclusive in a certain period of time to enjoy all the exclusive right to the use of all must be the copyright owner's consent. [9] while the GPL allows anyone to use free software, copyright has no right to refuse, will be the right software to use the proceeds transferred to the user. GPL or even encourage free software to spread, so more people can share, because it provides the user of the modified software has spread obligations. But look at the terms of GPL, free software, the property rights of the original copyright owner has not completely lost, but was limited.
Third, the legal protection of free software Inspiration to copyright law
When Richard Stallman created the GPL in the drafting of a new concept of "copyleft", "copyleft" copyright (copyright) of the English meaning just the opposite, "copyleft" Richard Stallman the term reflects the privatization of commercial software, teasing, mockery. copyleft free software is GPL (General Public License) means broad, GPL copyleft license that means protection mode. Copyleft main idea is to give to others to run, copy, modify and release the modified software freedom, but the software does not allow them to add their own restrictions, so as to protect every person has access to copies of free software and use rights. [10] GPL in order to achieve this ideal is enacted. Therefore, all the free software GPL agreement to follow the principle of copyleft: allows users to freely copy, modify and distribute software, but also modify the free software must be open to all users.
Although the surface of understanding the word, "copyleft" and "copyright" relative, but not against copyleft copyright, on the contrary it is to retain the copyright, GPL requires respect for the author's copyright. Richard Stallman that the existing copyright system too restrictive on the rights of users, but too many private rights to the copyright owner, it is very unfair. The rights of copyright owners should be returned to the user, such sharing is consistent with the information society's moral code. Richard Stallman and other free software movement advocate the approach taken is: If commercial software can use copyright to take away the freedom of users, then you can use copyright to protect the user's freedom, the GPL through open protocols, to ensure maximum user obtained using the software for free. Visible, Copyleft is copyright (Copyright) has criticized the inheritance. [11] it is the existing legal system in the free software movement advocate for the privatization of a powerful weapon against copyright. As a mandatory feature of copyright, so copyright law in the handling of relations is not much room for negotiation, the lack of flexibility. Thus, the free software movement advocates the introduction of the concept of freedom of contract to which the legal protection of free software, created the GPL protocol mode. GPL is essentially a copyright agreement, which has the general characteristics of the contract, which is its original licensors and its following among developers or users on a voluntary basis of equality and signed, GPL software were established to be awarded permit pursuant to the Copyright Act does not copy, modify, distribute such rights, is to release the software people and between the licensee the right to change, therefore, it is consistent with the contract set up, change or terminate civil rights and obligations in relations. [12]
Because of the existence of the agreement GPL, Copyleft License than the traditional commercial software copyright protection methods more flexible. Its purpose is to make software development into a mass public participation activities. With the development of software technology, software development and the traditional work of creation is very different, rarely stick to a single individual or unit. Coupled with development of the Internet, software industry few people and then behind closed doors. Predecessors and others to obtain advanced technologies and ideas will influence the development of software technology is a critical factor. Copyright protection of works to adopt a "self-executing" principle, the completion of works created automatically protected by copyright, regardless of whether it is open. This is a technical monopoly of the software copyright owners to provide a legal basis, because the computer does not open after the completion of software development can be protected by copyright law. In addition, copyright protection period is generally 25-50 years, the update cycle for software is becomes too long. Therefore, the existing mode of existence of copyright protection is not conducive to software development office, and Copyleft License advocate the free sharing of software technology, it is more in line with the development of software features.
Copyleft licensing of protected mode there is the necessary precondition is that the user accept the GPL agreement must use the software in accordance with the provisions of the agreement, which is mandatory, not negotiable. This provision was intended to prevent the privatization of others to free software to protect Copyleft open advocated the principle of freedom can be implemented, to protect the sustainable development of free software. Copyleft such mandatory measures is to be applied to software copyright owners and those who attempt to software copyright reverted to private persons, it is kind of preventive measures, not the restrictions on users. In addition, this force has also had an additional effect, namely, free software copyright law and contract law dual protection, making the development of more standardized free software.
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Notes:
[1] Poplar editor: "open source software and licensing issues and Countermeasures Law", Intellectual Property Press, 2004 edition, p. 7.
[2] "free software does not completely manual", http://www.blogchina.com/idea/software
[3] Eric Steven Raymond: "Cathedral and the bazaar", HansB translation, http://263.aka.org.cn/Docs/c&b.html
[4] Richard Stallman: "GNU Project", http://www.gnu.org/gnu/thegnuproject.cn.html
[5] Jia-sing-off, Lee Aurora, Chen Lu: "On the left version", "Yunnan Normal University" (Philosophy and Social Science), 2002 No. 1, p. 17.
[6] "GNU General Public License", http://www.huihoo.com/open_source/GPL-chinese.html
[7] Zhang Jian: "free software, copyright protection and inspiration of traditional copyright law," "Weifang College", 2000, No. 2, p. 15.
[8] poplar editor: "open source software and licensing issues and Countermeasures Law", Intellectual Property Press, 2004 edition, p. 28.
[9] way round: "Linux and Its Implications for computer software protection", "Hebei Law", 2001, No. 5, p. 118.
[10] "Copyleft what", http://www.gnu.org/copyleft/copyleft.html
[11] Li Lun: "Linux and its Ethical Implications", Hunan Normal University, Ph.D. dissertation in philosophy, 2002, p. 97.
[12] Poplar editor: "open source software and licensing issues and Countermeasures Law", Intellectual Property Press, 2004 edition, p. 58.
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