There is a version in PDF for print.
The author finds these licenses incompatible both with the Czech copyright law and with general rules of contracts execution.
In the final part of the document, some broad ideas how to harmonize free work distribution with the Czech law are given.
The goal of this legal review is to find whether free licenses2 are valid and enforceable3 under the Czech law. If I find these licenses invalid or unenforceable, I shall try to find some workaround (if available).
I suppose, that not later than after reading the previous two sentences, most of my readers have got some serious doubts about my intention. Why have I written such a long text as follows, reviewing such strange documents as these contracts, when being American of origin and copyright license of nature it shall be almost certainly unenforceable under the Czech law?
It seems to me, that an issue of the free licenses enforceability has not been discussed among legal scholars enough. I am afraid, that discussions concerned with the free licenses are held much more by computer scientists rather than by lawyers.4 Main subject of such discussions are usually issues of a technical nature, like free libraries linked to non-free programs. However, basic legal issues, like one of licenses enforceability are mostly untouched. My hope is that this paper may help to extend such discussions among lawyers.
Other reason, why I began to write this paper, was to get more deep understanding of the copyright law issues on the Internet. Later on, I found, that such material may be helpful to all those, whom I admire-programmers of the free software. When founding how little these men know about legal protection of their work, I wanted to help them, as well as to notify about pending problems with the free licenses enforceability. Although, this paper is based solely on my knowledge of the Czech copyright law, I am afraid that there are very similar problems in other legal systems, especially the ones in the continental Europe.
The reason why this paper may be considered insignificant is that my reader has a legal background (I hope, there will be many such readers!) and he may not understand a significance of the free movement as a whole. For such readers some explanation of the free software's significance would be helpful. I am not empowered to make economic findings about a possible future of free works (and especially software) in competing with their non-free counterparts, but at least I may say, that even to my non-professional view it seems to be clear, that in some areas free software is clearly very strong competitor to the non-free products even under the most strict economical scrutiny. I guess, that in very near future free software would replace many of its non-free variants even in the Czech republic (this process has already begun) and when there will be obstacles to this movement, it may have impact on the overall progress of the economical development in the Czech republic.5
This article is targeted to non-lawyers interested in the legal aspects of free works movement, especially to programmers, who may be mostly interested in the legal protection of their work. Another, and very welcomed, audience of this article should be non-Czech lawyers interested in the discussion about the legal aspects of the free software. As I have mentioned above, I am deeply unsatisfied with the level of pending discussion on this theme, and if this article helps to support such discussion, my effort has not been wasted. Due to such intended audience, substantial part of this article is spent on general explanation of particular provisions of the Czech copyright and contract law with examples in relation to the free licenses.
In order to explain, why the Czech Copyright Act is so many times cited in this text, I have to explain by couple of remarks a position of licenses in the system of Czech law. According to the general rules of the Civil Code6 (hereinafter ``OZ''), all works (and among them free software) are not tangible things, and therefore their legal regime is not regulated by provisions of the Czech civil law. Therefore, it is not possible to sale, lease, etc. work according to general terms of OZ. The Copyright Act contains very special provisions and it uses special terms, which I shall try to explain them in following paragraphs.
In relation to the term ``license'' used throughout this document, it is important to emphasize for my Czech colleagues, that I do not use it in the strict meaning of this word under the Czech law (especially § 508 and foll. of the Commercial Code7-hereinafter ``ObZ'').
Before commencing the detailed analysis of both licenses, it is necessary to explain how is a work protected by the Copyright Act.8 Author's right protected by AZ could be divided in the following groups:9
The crucial phenomenon for computer programs is the issue of derivative works. It is important to emphasize, that the theory of copyright law (European as well as American one) does not recognize a change of work (including computer programs) itself, but rather the changed work is deemed to be a new, derivative, work. Author of derived and one of original work have rights similar to rights of co-authors of a work.11
However, the author of the derivative work has to obtain a permission from the author of the original work for the creation of a new work (in the form of a contract, which includes an agreement on original author's compensation, see item no. 3 in list in paragraph no. 2.1.2 above and a more thorough discussion in subsection 2.1.6), in order to be able to create a derivative work or to profit on it. I mean, that while authorship of derivative author is always protected under the copyright law, even she has not get consent of original author to create a new derivative work, such original author has an action for damages compensation (including lost profit) for breach of her copyright.
Moreover, such use of the old work without a permission may be punishable as a criminal offense (according to § 152 Criminal Code-hereinafter ``TZ'').12
When we described protected of the work, we can continue by looking at the meaning of term ``free'' as used in phrases ``free work'' and ``free license''. The basic meaning of the term free software is introduced in GPL as follows: ``When we speak of free software, we are referring to freedom, not price.''.13 Therefore, the issue of money is not the crucial issue for understanding free licenses and there is no legal limit on sale of free works. GPL focuses on these main issues protected under the term ``free'':
When analyzing which exact rights and activities, from the Czech law's point of view, are covered by GPL (and OP/L as well with limitations due to differences between documents and computer programs), there are the following three undertakings of author and subsequently these user's rights:
The Copyright Act in § 22-28 stipulates the mandatory requirements of specific contracts giving consent to individual types of use. Unfortunately, these standard forms of contract were not prepared (in 1965, when the Copyright Act has been drafted) having on mind a possibility of computer program being distributed work and Internet distribution medium.1
All these forms of contract are based on Contract on distribution of work according to § 22 AZ. Subject of this contract is that ``Author gives consent to work distribution [by user] in consideration of royalties...'' (par. 1). The mandatory requirements of the contract are
... method and area of work distribution, time, when such distribution should occur, agreement on author's compensation, help to be provided by author, term of the contract, and distributor's undertaking, that distribution shall be done at his costs.Copyright Act does not provide for explicit contract giving consent to user's creation of derivative work based on author's work, and the provision of Copyright Act governing such contract would be § 28 AZ, which provides for all contracts not specifically stipulated in previous paragraphs of the Copyright Act.15 Such contracts not-regulated otherwise have very broadly defined requirements: ``on contracts on other use of work, provision of § 22(3) and § 23 AZ shall be used accordingly.'' The word ``accordingly'' is very important. It means, that requirements of the mentioned paragraphs must not be satisfied completely (and analyzed licenses these requirements actually do not satisfy), but only in the measure as required by the substance of the contract.
Therefore, in order to consider whether free licenses satisfy requirements of § 28 AZ (or § 22(3) & § 23 AZ respectively), we must investigate the substance of both general distribution contract and analyzed free licenses.
On one hand, main idea of the distribution contract according to § 22 AZ is that author gives permission to distributor to distribute his work, but the distributor is not only allowed, but he is bound to distribute author's work in accordance with the contract (in the agreed time, amount, geographical area etc.). However, there is no such commitment on the side of free work user (and/or distributor), which can use free work, distribute it if he wishes to do so, or not, he can make his own work derived on the free work (or not if he chooses so), and finally he can (but he must not) distribute such derived work anywhere he wants in any manner and without any limits geographical or other. Actually, the free works' user is actually not bound to do anything. Only in the moment, when he creates derivative work or when he commences distribution of the work, there are some limitations on the manner in which he can provide such distribution.
When this fundamental difference between two contracts and forms provided by AZ is taken into account, I assume, that we can conclude, that some requirements as stipulated by the § 22(3) AZ have no sense for free licenses at all. This is true especially for method of work distribution, time, when such distribution shall be commenced, and certainly, distributor undertaking, that distribution shall be done at his costs. However, such fundamental difference with the contemplated distribution contracts may be used as an argument against the very idea of free licenses, because these may not be found to satisfy main characteristics of distribution contracts. I do not found this argument to be persuasive, because of general principle of contractual freedom which is the most fundamental principle of law on contracts in every civilized law culture. When parties wishes to conclude an contract which does not hurt any of them, which is not against a law or a public order (but which is perceived by the § 27 AZ), I would assume that solely such difference could not be the reason for striking these contracts down.
Concerning the time and area of work's distribution. There is an issue unresolved by the current Czech literature, which is the question where is the place of work's distribution when it is distributed via Internet (or any other public network), or when actually is work distributed. Is it in the moment when the work is sent by the author to a publicly accessible Internet server or when it is actually downloaded by the final user? Or using an above-mentioned analogy, is distribution of work by the Internet similar to distribution of books, which are copied by the publisher in definite number of copies, and these copies are subsequently distributed among final users?16
When using a definition of copy as found in legal theory,17 which states basically, that copy is an a fixation of work to the material substance, I do not believe, that I could agree with ``the book analogy'' mentioned above. It seems to me, that Internet distribution is not distribution of fixed number of previously prepared copies, but rather allowing final users to make their own copy by themselves. It is difficult to decide where exactly is the place of distribution (location of Internet server, or location of user's computer?), but it seems to me clear, that Internet server's owner is not distributor of copies, but rather it is similar to board where free work is posted, available to anybody for making her copy. In such analogical situation, the place of distribution would be location of copy-machine used. Without saying final decision on the issue of Internet's work distribution, the only important point in this context is that, this confusion makes an idea of time or area determination in an agreement for distribution even less clear.
To conclude, the reasoning supporting the legality of free licenses as distribution contracts is quite weak and the result of the court decision on this issue should be decided on the specific facts of the case. Even worse is the situation as concerned with mandatory author's compensation, which shall be discussed in following paragraphs.
In order to analyze fully issue of author's compensation, we have to recall provision of § 13(1) AZ, which states that ``author is entitled to author's compensation for every use of her work, unless royalty-free use is allowed by § 15 AZ.'' Impact of this provision is much stronger, when considered alongside statutory given bar of author's statutory rights reduction in § 14(2) AZ, which states, that ``author's right given by law cannot be reduced or eliminated by the agreement of parties.'' It means, that any contractual provision shrinking or totally eliminating author's right given by the law shall be void and unenforceable (therefore, court would not use it because of official duty, without any party's pleading it). Given this bar, contract which does not states author's compensation should be reformed by the court and provision of contract which eliminates author's compensation up front as it does OP/L's provision of article 1: ``You may not charge a fee for the OC itself'' shall not be enforced by the courts at all.
The reason why this provision of law was enacted is not clear from the sole free licenses point view. However, the goal of legislator was reasonable, as he tried to avoid employees stripping of her rights in employment contract, taking into consideration unequal bargaining position of an author and (supposedly) mighty employer or publisher. The most important right which might be employee stripped off are the very rights of author's compensation and therefore their waiver is most likely not to be enforced. Moreover, waiver of future right to compensation (which is dependent on future use of work rather than on consent with such use) shall be probably found in violation of the general provision on waiver in § 574 OZ which states, that ``agreement, where a person waives his right, which will originate in future, is void and unenforceable.''
It is questionable, whether such provision's unenforceability causes unenforceability of the contract as whole or court would insert a implied provisions of the law instead. This issue is dealt with by § 41 OZ, which provides in the relevant part, that if the reason of unenforceability is caused by the part of the legal transaction, only this part shall be deemed to be unenforceable, unless from the character or content of the legal transaction or circumstances of its execution it infers that the part is inseparable from the whole. Therefore, the resolution of the issue is just question of fact of each particular case and it cannot be resolved generally. However, I think, that authors compensation provision should be usually separable from the rest of free license, and therefore it might be cut from the license and author should be given compensation in the usual amount (measured by the courts expert).18
The provision of law on waiver in § 574 OZ makes other troubles to free works as well. Because it stipulates the requirement of writing for any valid waiver under the Czech law, we have to decide, whether there is agreement in writing when free licenses are executed (supposing that it is possible according to other rules execute free licenses at all). According to § 40(4) OZ ``form of writing is preserved when legal action is executed by telegraph, telex or by other electronic devices, which preserves content of the action and identity of person, who caused it.'' Therefore, for e-mails to be deemed to be form of writing, they have to preserve its content and identity of author. However, a decision of court on this issue cannot be presumed, because it is the question of facts, which have to be decided by free consideration of court (there are no juries in most of the continental Europe). Such freedom for court may be on one hand in favor of free licenses, as there is no statutory express bar of their acceptance as writing and there is no need of special legal regulation for e-mails to be accepted as an evidence, but on other hand current e-mails usually does not satisfy these conditions, as neither content or authorship is securely preserved by current e-mails.19
In the above mentioned provision of § 13(1) AZ, the § 15 AZ is mentioned as possible way for using work free-of-charge. However, this provision could not save free licenses. It is just general leeway for the fair use of work for purposes of education, charitable use, research etc. There is no way how to get under this provision while using free software for other, including commercial, purposes.
The legal doctrine of unjust enrichment is a general doctrine of the Czech civil law with purpose of remedying the situation where one person has been enriched from the property of other. The legal provisions dealing with this doctrine are included in § 451-459 OZ. The main rule is given in § 451(1) OZ which states, that ``Any person who, to detriment of somebody else, is unjustly enriched must return what he has acquired.'' The following paragraph states more precisely, that such enrichment may be also enrichment acquired ``by performance of an act based on an invalid act in law''.
Therefore, when an user of free work has received any property value (including right to use free work) on the basis of invalid free license (invalid as whole or in the part concerning waiver of authors compensation for such work), he has to return enrichment to author (if the author of free work cannot be identified, the unjust enrichment has to be given to the government, according to § 456 OZ). The remedy would be based on authors compensation with usual interest and on return of the work itself.20 The issue of what exact amount is ``usual author's compensation'' would be determined by an independent expert called for by the court.
AZ presumes a possibility of author's rights violation. He gives for such situation to the author right (in § 32 AZ) to commence a litigation, where he would ask ``especially for forbidding his rights violation, consequences of violation remedied, and he would be awarded appropriate satisfaction. If the consequence of author's right violation is the substantial damage of non-proprietary character, the satisfaction may be awarded in money.'' (emphasis mine) However, such right does not tries to eliminate author's right to unjust enrichment and damage compensation.
GPL tries to protect free software against other intellectual property rights misuse-it means mainly misuse of patents-(in Czech legal theory, these other IP rights are usually called collectively as ``industrial rights''). The main principle is simple: when a user is not allowed to change a free software due to limitations given by these rights, he is not allowed to distribute any version (original or derived work) at all. Therefore, one can be sure, that any free software legally distributed under GPL could be freely changed without any limitations imposed by industrial rights.
The basic statute regulating the industrial rights is the Inventions, Industry Models, and Bettering Proposals Act21 (hereinafter ``ZVPvZn''). There is a general exclusion from patentability for ``computer programs'' in § 3(2)(a) ZVPvZn. However, although true meaning of this paragraph is rather obscure, it means certainly that the application for patent on a computer program itself or its part shall be rejected by the office. The Patent Office clearly stated that he would be willing to accept patent application on the larger technology, where a computer program would be part of a more compounded technologies,22 which accepted a patent application on a complicated roentgen technology, where a computer program was used in controlling roentgen lamps for the best shining while securing lamps from their overburdening.23
The issue of patentability of computer algorithm under the Czech law is not clear as well. Especially, there is no literature on the matter at all. Moreover, there is no express rule in the statute governing patentability of computer algorithms other than not totally clear statement, that ``inventions, scientific theories, and mathematical methods'' are excluded from patentability. Such provision of law relates directly to the very core of the patents-which is that technical problems solution should be protected by the patent law, rather than technical steps not relating to the specific solution of technical problem.24 The same core idea is expressed in § 3(c) ZVPvZn, where another class of non-patentable applications are ``plans, rules, and methods of mental activity''. Therefore, it is not absolutely clear whether patents constitutes real threat to free works, but such analysis should be done in separate substantial analysis on this sole matter. Without such analysis, I only guess, that according to the provision of § 3(2)(a) it should not be possible to patent any computer program at all, but rather it may be possible to patent complex original algorithm which satisfies requirement for invention as of their originality.
For example, it may be possible that Donald Knuth, author of typesetting program TEX, (if not himself opposing whole idea of software patents) could be awarded with a patent on paragraph breaking algorithm. However, this question is very complex and deeply related to technical analysis of facts. Moreover, there has not been any judicial decision on the issue, so the issue is very unclear.
As we have seen in par. 2.1.5 above, it is necessary for every user to conclude a contract with author, when the user wishes to use a work. According to § 52 AZ, ``for issues not resolved in [AZ], particular provisions of the Civil Code shall be used''. Therefore in order to analyze the legal position of the licenses as contracts, we have to refer to § 43-51 OZ, which contains general rules of contract creation under the Czech law. The main principle of contract is the same as anywhere in the world: there must be an offerror presenting offer to other person, offeree, which must such offer accept and thus create new contract. There is no consideration required in the Czech law.
Offer is defined in OZ as ``expression of will intended to closing of contract, which is targeted to one or more specific persons...'' (§ 43a(1) OZ) The function of emphasized text is to make distinction between true offers of the contracts and not binding advertising and similar documents, which would be sometimes difficult to distinguish otherwise, notwithstanding that their author did not intended them to give to their recipient any power to accept them and create contract. Definiteness of recipient is generally accepted (not only in the Czech law) as the best available characteristics for real offers.
However, such definition is crucial to the free licenses (as well as any other license merely attached to a material released on the Internet). There is probably no way how to find any definite addressee to such documents and therefore these are not offers in the meaning of law and they do not give a power to offeree to create new contract.
There is probably no certain way around this provision of the law. Only some very debatable interpretation may be created. Such interpretation is based on supposed intention of the lawmaker. When assuming the intention to differentiate true offer from mere promotional materials, I suppose that it may be concluded, that when both free licenses are unambiguously targeted to contract execution, the provision of § 43a(1) OZ should not be relevant.25 However, opposition to this interpretation (as well as to any intent-based interpretation of statutes) is very simple: if lawmaker had such intention, why he would not write it into text of statute? Therefore, if statute says, that offer has to be addressed to specific persons, it cannot be held, that it may be addressed to general audience as well.
We should at least briefly describe the possibility of public promise defined in § 850 OZ. Such is defined in literature as a public declaration, that promises a benefit to a person satisfying conditions of the promise.26 The legislator did not create this institute for the purposes of the generally-wide offered contracts, although its literal reading seems to support such notion, but for small-scale promises (typical example is the search for missing home pet or help with looking for criminal). The main difference from situation of all free licenses (or in this situation not only free-all Internet-wide offers) is that the performance is supposed to be one-time performance.27 Such is certainly not offer of unlimited distribution of free work over the Internet.
Even though we would overcome the problem of offer without definite addressee in the free licenses (by any means, for example, by the Czech parliament having mercy on free movement and amending the Civil Code :-), there is still open another problem, which is an acceptance of such offer. According to § 43c(1) OZ, ``timely notice of the offer addressee, or other action, which could indicate accord with the offer is acceptance of the offer''.
The standard procedure of an offer acceptance includes notification from offeree to offerror about assent to the offer. It means, that for free licenses to be accepted by this standard method, all users would have to send to the author some notice expressing their acceptance with an offer provided to him in the form of free license. However, such method in the quantities typical to Internet would require thousands of e-mails for each version of the software (remember, there is no such thing as changed work, but only new pieces of work derived on the old one!). Moreover, some changes would have to be included in the free licenses (which is not possible without consent of theirs authors, who have authors rights on their text as well), because under current licenses users do not know, that there is such need of express assent to the free license (moreover, in many countries of the world, such assent is really not needed). Another question may arise, whether it is possible with sending one e-mail to more co-authors accept contract as well (again, remember, that Linux has hundreds core developers!).
Therefore, there must be other way to make legally binding contract by accepting an offer. There already is such way and the provision of the law establishing such possibility is emphasized in the last quotation from Civil Code above. This kind of contract acceptance (called ``acceptance by a deed'') is in the practice concluded by offeree's sending actual performance asked for by the offerror rather than mere sending of acceptance notice. For example, merchant in hazelnuts responds to order by sending particular shipment of nuts in ordered quality etc. rather than by promise to ship nuts in future, which is real meaning of acceptance. When applied to free work distributed over the Internet, this kind of acceptance would be satisfied by user's mere use of the work, or by her creation of the work derived from the original free work. Moreover, from the procedural point of view, creation of derived work based on the original one is better, because by such user releases to public hard evidence about his use of original work.
However, such kind of acceptance does lead to yet another pitfall. The last issue in non-synchronized formation of contract is the question of finding the moment when the contract was actually executed. The Civil Code in § 43c(2) states, that ``timely acceptance of the contract is effective in the moment, when expression of assent with the content of the offer is receipt by the offerror.'' So, there is another problem for Internet-based contracts. In the abovementioned case of hazelnuts, the problem is usually non-existent, because offerror is informed about offeree's acceptance of the contract by receiving a shipment of ordered nuts. However, authors of Internet distributed works in most cases never receive any information about users acceptance of the free work (again, consider situation of poor Linus Torvalds, when he would have to be informed about every user of Linux). However, without such notification the contract has never been executed according to the Czech law.
On the other hand when a conflict between user and author arise and contract is needed, author per definitionem knows, that his work was used and therefore contract has been accepted by the deed (user couldn't create derivative work, sell the work etc. without prior using the original author's work). When there are no troubles with the user (and therefore author will never identify her), there is no need of contract to be ever executed. This idea is usually sufficient but it does not take into consideration situations when the contract is needed for author's defense rather than for binding of free work user.28
The difficulties with Internet-disseminated contracts is known to many other people than myself, of course. Free Software Foundation, authors of whole concept of free software and nowadays main ``free software house'', requests authors of patches to the programs originally authored by FSF's programmers to assign their rights as legal co-authors.29
From the previous paragraphs we can draw only one conclusion: free licenses are not offers in the meaning of the Czech law, and therefore they have no power to enable offeree to create contract by their acceptance. Moreover, users accepts free licenses by mere use of free work only in very limited number of cases. It can be said, that in most cases users of free work created by Czech authors shall use them without any legal title and especially without the contract presumed by § 14 AZ.
One small sad note in the end of this contract law analysis: the general contract law in the Czech republic has been harmonized (more in the Commercial Code than in the Civil Code) with [131991CISG ]. CISG provides in § 14(2) as follows: ``Offer, which is not addressed to one or more identified persons, is deemed to be mere solicitation for offers, unless offerror clearly indicates otherwise.'' However, the emphasized text has not been incorporated in the Civil Code (similar, more complicated provisions, are contained in the Commercial Code, § 276, which is not available30 for most of free licenses), because lawmaker probably did not contemplate mere possibility of non-commercial public offer (they certainly did not thought about Internet :-)
Due to its openess, free work is usually never finished. Even, when original author of the work lefts further development, anybody is able to grab last version of the work and continue its maintenance (actually, users are usually encouraged to do so). This continuance is also supported by current users of the software, because it guarantees to them support of theirs always changing needs unparalleled in commercial software market.31 Unfortunately, such welcomed still-going development has one serious drawback. There are usually some errors or ommissions in the latest version of programs (collectivelly called ``bugs'' in programmer's slang). 32
Even though, there are often less bugs in free programs than in non-free ones, because hundreds of programmers reads their source code. On the other hand, impact of bugs on free programs could be much bigger than in the case of non-free ones.33 Firstly, fate of free programms is based on relation between author and its users. A mistreatment of user by author can lead (and leads) to either users switching to ``competing'' project, or (if there is none) to its establishment. Again, I do not know about any litigation concerning compensation for damages caused by free software, but possible impact of ordered damage compensation could virtually eliminate any free software developer-considering their usual small capital and possible huge damages caused by malfunction in computer programs.
It is not surprise that because of these reasons (and ordinary decency, of course) author usually tries very hard to eliminate any damage to its users. For example, most bigger free software projects follows standard introduced by Linux, that in any given moment there are two versions of program, one for developers (usually numbered by odd numbers) and other for usuall users (numbered by even numbers, where are no new changes included other than fixes for remaining bugs).
There are two possible legal tools used for protecting from impact of defective work-reponsibility for defects and other for damages. Although, these are similiar in their names, and they are used in similiar situations, these two tools are very different in their nature. While former is intended to force author (or any supplier when used in context of contract for sale) to correct her performance,34 the latter is intended to compensate her user for damage, which has already occurred by use of defective performance. Sometimes, even result of these tools may be very similar, but still it is important to keep separated analysis of these two issues and drafting of particular part of contracts.
The defects responsibility regulation is rooted in § 499 OZ, which stipulates that ``who provides another with a thing for a fee is responsible that the thing in the moment of delivery has a characteristics expressly required or usual, that it may be used according to characteristics of the use mentioned in the contract, or according to agreement of the parties, and that the thing is not legally defective.''
This provision of the law has some serious consequences. The most important of them is that because according to the § 118 OZ rights or other non-free entities are not things in the legal meaning of the word, providing another with a work is not providing him with a thing and whole concept of defects responsibility does not affect free work at all, unless parties expressly agrees in their contract otherwise.35 However, without such agreement, ``defects'' of the work are not deemed to be defects in the legal sense at all.
Moreover, whole notion of a defect is foreign to the Copyright Act-considering, that it was originally drafted for dealing with articstic and scientific works, which cannot be ever defective in the standard meaning of the word, it is not big surprise. Only small (and in context of free works totally insignificant) exception could be found in work created by the order (§ 27 AZ), which is in its effect similar to provision of § 502(2) OZ, where parties may agree among themselves on characteristics to be satisfied by the product, so that such product is deemed to be perfect.
Other big obstacle for notion of defects apply on free work is that the whole idea of defects in § 499 OZ is attached to providing of thing for a fee. However, no free work is distributed for fee under general statutory rules (I suppose, that when a work is sold for profit a contract dealing with all these issues in much more coherent way should be drafted and executed in ordinary way). Moreover, free content released under OP/L is expressly forbidden to be provided for any fee.
Even in the case when free works would be recognized as a thing (or when the Copyright Act would be amended, so that a work could contain defects even from the legal point of view36) and the work would be provided for a fee, there is still a way how to eliminate the responsibility for defects. According to § 501 OZ, ``when a thing is provided as is, [author] cannot be held liable for any defects other than non-compliance of delivered thing with characteristics expressly required or agreed''. Therefore, when GPL declares that ``the programs are provided `AS IS' without warranty of any kind'', such reservation means from the legal point of view, that provider openly declares unreliability of her product, and therefore an user cannot argue, that she relied on the product to its own detriment, unless thing did not satisfy characteristics expressly promised by the author.
The medium taking such notice does not have to be a contract, but it could be contained in any documentation, a manual, an attached information file, etc. However, it is important to emphasize once again, that all this stuff on the responsibility for defects is an issue only for things sold for a fee.
Other note, which should be mentioned, is that this analysis is relevant only for cases of general defects responsibility, and it does not cover situation of some special kinds of sale, where OZ contains special provisions which are more strict. However, no such provisions apply for Internet-based distribution of free work (beware on a customer sales provisions in §§ 619-627 OZ for a possible future over-counter sale of free software).
In order to make clear, what is the actual subject of a defects responsibility, we should consider some more usual sale of work-over-counter sale of book. Such transaction comprises de facto from two separate transactions: firstly, right to use (by reading) is provided, and secondly customer buys the collection of papers covered by some level of ink under the very ordinary sale contract (by this latter contract he receives materialized work of publisher, compositor, printer, distributor and seller). Because in the latter contract, thing in the legal sense of the word is provided for a fee, regular rules for defects liability can be applied (and moreover, special rules for sale in store applies as well, but these are outside the scope of this analysis) and buyer can apply for remedy of book wrongly printed, bound etc. However, there is no statutory right for compensation of defects in the content of work (which is easy to understand-tell me, what does it means ``defective novel''? Novel can be nice or nasty, written in colloquial language or in baroque style, but how it can be defective?).
When this example is used on the free work providing via the Internet, it may be concluded, that such providing is compound of the gift contract and contract for giving right to use free work in the same sense as the previous example could be deemed to be compound of the sale contract and contract for giving right to use the book. And, as it was explained before, it is not possible to apply statutory defect responsibility for any contract which is not for a fee which certainly includes gift contract. Therefore, it may be possible to use only supporting rule of § 629 OZ which states in relevant part, that giver must ``notify recipient on a defects of the gift'' and as the only remedy for breaching this duty, law gives to the recipient right to require the return of the gift.
It would be most unfortunate situation, when author of free work, which provided his work for free to public, would be in danger of being punished for his giving away because of some hidden defect causing damage to user. However, it often happens, that there are some remaining defects in a computer program, free or non-free, because of omission in debugging or due to failure in coordination among co-authors of the work. Therefore, all licenses (including both one analyzed in this article) try to eliminate impact of such defects on author by some kind of disclosure, that authors refuse to be kept responsible for any damages caused to them.
The basis of the Czech damage responsibility legal regulation is given in the §§ 415-450 OZ. Substantially different legal regulation of damage responsibility for commercial cases can be found in the Commercial Code, but because of the length of this article, I shall limit my analysis to the Civil Code damage responsibility only. The very basic rule for damage responsibility which we can analyze in next paragraphs is given in the § 420 OZ, which states in the relevant part, that: ``everyone is responsible for damage, which he caused by breaching his legal duty''. There are three keywords in this sentence: ``damage'', ``caused'', and ``legal duty''. If victim (e.g., user) requires damage compensation, he has to prove, that all these three events already occurred (if damage has not happened under some special circumstances-see below). If he succeeds and proves all these events, there is only one excuse for offender available. If he proves, that the damage was not caused by his breach of legal duty, he can eliminate or at least lower his responsibility.37
The simplest way how to explain a process, is to go through it step-by-step:
Therefore, in order to evaluate author's liability we have to consider, whether there is any legal duty imposed on her to provide the work without any defects. There is no such duty created by the free licenses themselves and these licenses do not impose on author any other duty as well. Because providing of a work is not contract for sale (defined for the tangible things only) even the general responsibility for defects cannot be imposed on the author.38 The only remaining duty imposed on the author is the general duty of prevention in § 415 OZ.
It is not possible to say, what would be decision of the court on the issue whether or not the offender breached this general prevention duty, because such decision would have to be based on the facts of the particular case. Maybe, that in analyzing the issue, court could use by analogy rules for evaluating defects responsibility (which means, probably, that court would decide on the basis of § 501 OZ, where author warned the user that the work is provided ``AS-IS'').
Therefore, I think, that the author may be held liable only in the measure, where he expressly promises, that the work shall have a particular characteristics, or that it shall support some defined functionality. However, even such construction, may be used only when the work would be provided for a fee,39 when inability of user to use some particular function caused to him a damage, offender knew (or should have known) about a possibility of such damage, and he did not make a steps to prevent it. I think, that author should not to be held liable for damage caused by a defect not found during correctly done process of debugging.
It is understood that such link is found, ``when the damage according to character of circumstances, or according to usual (natural) proceeding of events is adequate consequence of illegal action or cause of damages''. Even such definition means, that there may be more causes of a damage occurrence, all of them foreseeable (i.e., adequate consequences of breaching the legal duty). However, such requirement of foreseeability is objective one-it is not important whether offender know or should know about a possible damage, but whether such damage was ``foreseeable from the reasonable person's point of view in the same place and moment as the offender.''.
Damage compensation usually consists from compensation for the real damage and lost profit due to existence of the damage (according to § 442 OZ). While the real damage is relatively clearly defined as a diminishing of victim's own property, the lost profit is much less clearly defined. There is no statutory definition of the term, so that only understanding may be given by the literature, which is however rather vague on this topic. The legal literature43 defines the lost profit as ``everything, which left victim person''. The lost profit must be objectively predictable to occur without doing any steps on the side of victim. And once again, the victim must prove, that there is clear link between loosing of the profit and offender's breaching her legal duties.
Therefore, if we want to conclude this rather complicated introduction to damage responsibility under the Czech law, we could summarize our findings in this way:
Until now I silently presumed, that all legal relations among author and users of her work are governed by the Czech law. However, it does not have to be always so. Therefore, I shall give you some notes concerning a decision when the governing law shall be the Czech one and when not. These notes are prepared from the Czech court's point of view-conclusions would be probably very different when foreign court decides,45 especially because all courts tends to pull to its own jurisdiction as many cases as possible.
Start of our analysis is in § 50 and § 53 AZ. Former states the basic principle, that ``provisions of this statute are applicable to every work of the Czech citizens, without consideration of the place of the work's origin or first publishing''. Further in the section, there are some exceptions given (work of immigrants, or foreigners published or presented for the first time in the Czech republic). However, the basic rules states, that the most important border for decision of applicable law, is the author's citizenship.
The latter section mentioned above (§ 53 AZ), provides for general statutes as ruling issues of copyright relations not provided for in AZ. Therefore, all general issues, like contract effectiveness, responsibility for defects and damages, right and obligations arising from unjust enrichment, etc., are governed by the general provisions of other statutes-especially the Civic Code. It has to be noted, that when requirements of the Commercial Code46 are satisfied, ObZ has preference and OZ shall be used only subsequently in the issues not governed neither by AZ nor ObZ. Most important requirement is that both parties, author as well as user, are entrepreneurs and that the relation arisen during their enterprise activities (e.g., sale of free software or provision of other free works for free).
Therefore, to summarize this subsection-this analysis is not concerned with works of foreigners. Situation for other authors is much better, as many foreign (especially, American) legal systems are much more kind to free works.
I concluded in the previous text these conclusions:
While discussing consequences of free licenses invalidity on newsgroup on Usenet, I have heard this argument from an American lawyer:
[The] point [...] is that if the GPL is not considered applicable, than what you are left with is the restrictions allowed in the copyright law. These do not allow you to distribute derived works without permission.As I understand these paragraphs, author's thought is that it does not matter, that GPL is unenforceable (and I am not sure, whether he is right in such preposition), because anyone breaching its provisions could be held responsible under the general provisions of statutory copyright law. I do not agree with this thought and I shall explain my reasons in the following paragraphs.In other words the copyright holder promises not to sue you if you obey the requirements of the GPL, but if it becomes necessary to sue you, the copyright holder will base the suit on your violation of one or more provisions of copyright law. If the GPL comes up in the suit, it will only be to prove you didn't comply with one of the GPL allowed exceptions or because you brought it up in your defense.
You might not be forced by the court to release, but you might agree to do so to avoid even worse penalties. Presumably the copyright holder is more interested in seeing you release your code under the GPL than seeing you fined, jailed, and permanently restricted from distributing your own code47.
The first of all, a willfull use of unenforceable license does not seem to me to be honest and it certainly did not support a trust between the author and her users. This argument may seem not to be important, but in the free-work world such argument should not be taken lightly, because in my opinion the trust to author (or lack of thereof) is one of the most important reasons, why people switches from non-free software to the free one. We were as users so many times deceived by a software producers, that we are very touchy to be left totally in the mercy of author.
The most importatnt reason why I think that enforceability of free licenses is relevant is based on the fact (probably overseen in cited post to newsgroup) that licenses are usefull for benefit of more than one party. Certainly, that the most visible result of free licenses acceptation is user's right to use the work, but it is not only result of a license. As it was shown in section 2.3. the fact that user has seen and took in his mind notice of author stating, that the work is provided ``AS IS'' and author does not want to be kept liable for a bug found by user may be important in the decision on the defects responsibility. Even less the author wants to be served by the petition for decision on compensation of damages caused by work to her users.
Another rather complicated issue may be called ``misuse of bazaar''. Author sends to Internet free early version of its software as in the case of any other free software. After some time of further development, bug-fixing etc., he would ``found'', that there is no enforceable license. After elimination of whole Internet presence of the software, he could rewrite all improvements of the users to its old non-free version. I am not sure, whether such method may be economically viable, however it is certainly worthy of consideration.
In the case of big companies, it may be in some countries even necessary to consider tax consequences of giving of the gift or requirement to put some contingency in the book for the case of unjust enrichment compensation.
When I have came to so ugly conclusions in previous paragraphs, I should draft some ideas what should do a regular programmer (or author in case of OP/L) to avoid a conflict with the Czech law. However, I had to emphasize as well, that I do not know about any totally fool-proof solution to the described problems. I can offer only some ideas, which would be eventually cultivated in some vital solutions in future.
Other problem is, that according to GPL, a work derived on the free work has to be released under GPL as well. It would be necessary to amend GPL, for example so that it would allow release of derived work under any license previously expressly approved by FSF (authors and current maintainers of GPL) and approval published on official FSF webpage.
Another very simple possibility may be to include in the law new phenomenon of the ``free work'' (so as to eliminate possibility of its misuse by evil author's employer). Such free work would have to be free for everybody, not only for some group of person (therefore, when work is free, author can give it freely to anybody), free work has to be barred from being able to be protected by the non-disclosure agreements or from statutory protection of the commercial secret, and lastly, ideas included in the free work cannot be protected by patents.
Unfortunately, I do not see any pressure group powerful enough to promote such parliament action.
1 I do thank to all my readers who supplied me with valauble comments and criticism. My first thanks are to my wife, Markéta, because without her support and sharp criticism this article would never be completed. Another thanks are due to Honza Jiroušek, who supplied me with view of intelligent non-lawyer.
2 Namely Open Content Principles/License, version 1.0 (see http://www.opencontent.org/opl.shtml-hereinafter ``OP/L''), and General Public License, version 2 (see http://www.gnu.org/copyleft/gpl.html-hereinafter ``GNU/GPL'').
3 Concept of ``enforceability'' is a crucial theme of any legal analysis. Lawyers are not concerned very much with ``validity'' of the legal documents, because the true meaning of this term is rather unclear and differs heavily depending on the context. Term ``unenforceable contract'' is defined by [11993Black's Law Dictionary CZ ] as ``a contract, which does not have a legal force or effect in the court''. Usually, enforceability means that all promises contained in the contract may enforced by the court.
4 An example of such discussion is list debian-legal; subscribe to this list by sending a message to debian-legal-request@lists.debian.org with the mere word ``subscribe'' as its subject.
5 There are some examples supporting the opinion, that free software may be very successful in competition with their non-free counterparts mentioned in [61998IDC ]. For example, according to long-time independent survey by Netcraft, free WWW server APACHE has achieved more than one half share in WWW servers' market in sharp head-to-head competition with non-free software by companies as Microsoft, Netscape, Sun Microsystems and IBM. Even bigger share of ``market'' has been traditionally achieved by e-mail server SENDMAIL who holds in many variants (some of them sold commercially) close to eighty percent of the mail servers' market. However, argument can be made, that this huge share is given by its long tradition and it is still losing market share to its non-free competitors like Microsoft Exchange and Lotus Notes. I do not find it too much persuasive, because disproportion of these products' market shares is still very clear and I think, that Sendmail loses mainly in situations when some additional functions are required above the classical e-mail ones (e.g., groupware services). Moreover, no argument can be made against Apache's gain that entered market not sooner than its competitor given by short period of time for which WWW server exists at all. Both of these pieces of software are not covered by GPL, but by less strict one (based on BSD license-see http://www.debian.org/misc/bsd.license-which is the most simple consent with use of the work; unfortunately, even such simple agreement fails on the same problem as not being a contract according to Czech law-see section 2.2). The most successful work under GPL is the free operation system LINUX, which has taken just around two years after its maturity more than fifteen percent on the server-side operation systems' market.
6 Act No. 41/1964 Coll., Civil Code [orig. ``'']; see § 118.
7 Act No. 513/1991 Coll., Commercial Code [orig. ``''].
8 Act No. 35/1965 Coll., Act on a literal, scientific, and artistic works [orig. ``''], hereinafter ``AZ''.
9 See § 12 AZ.
10 See § 19(1) AZ: ``Author is allowed to transfer only right to use her work.'' I am not an expert on the common law Copyright law, but I think, that this is the main source of differences from the civil law one. Probably, it is due to the classical Roman definition of ownership as compound of right to use, right to dispose, and right to keep, which is not usual, I think, in the common law countries.
12 Act No. 14/1961 Coll., Criminal Code [orig. ``''].
13 This quotation is taken from http://www.gnu.org/, which is the main site of the Free Software Foundation, author of the whole concept of ``free software''. More thorough explanation of the term ``free'' as used by this article may be found on address http://www.gnu.org/. Similar to ``free software'' although different in its more open attitude to commerce is the phrase ``open source software''-for more information see http://www.opensource.org; colloquial explanation of the difference between two meanings of the word ``free'' differs a free software from a free beer.
14 See [111997aTelec ], p. 175.
15 More on this paragraph, see [91996Knap ], p. 111, or [111997aTelec ], p. 301.
16 This schema is used in [121997bTelec ], p. 181.
17 See for example [91996Knap ], p. 57.
18 For explanation of this conclusion see paragraph 2.1.7.
19 The issue is too complex for this article. For better explanation of the whole secured e-mails' issue see [51996Froomkin ].
20 Return of the work may be ordered when the license would be found invalid as a whole, e.g. because of some substantial conflict with § 14(1) AZ.
21 Act no. 527/1990 Coll. [ czechzákon o vynálezech, průmyslových vzorech a zlepšovacích návrzích].
22 For similar decision, although not binding by any means on the Czech Patent Office, see [31994EPO ].
23 This holding seems to me similar as an interpretation of case DIAMON v. DEIHR as given in [21991Epperly ].
24 More thorough explanation of the problem can be found in [81996Jezek ].
25 Moreover, such interpretation is part of § 14(2) CISG-see below.
26 See [141992Zoul í k ], p. 329.
27 Whole doctrine of public promise seems to me similar to American doctrine of ``unilateral contract'' as defined in § 45 of [41992Restatement of Contracts 2nd ].
28 For more thorough explanation of impact of free licenses unenforceability see section 3.2.
29 has called my attention to this practice of FSF. Thanks.
30 For discussion of particular statutes to be used see section 2.4.
31 Core of typesetting program TEX used for preparing this article is being developed without interruption for more than twenty years.
32Older version of TEX is an exception from this rule, because development of it has been terminated by the author nine years ago, and since that time, he accepts only corrections of a few bugs, which remained-there has been less than ten of them till now; however, even without original author support further development continues on supporting programs, while other group of programmers rewrites TEX into new system W inserting support of functions never targeted by original author and certainly including some fresh new bugs.
33 To the best of my knowledge, there has not been any litigation related to free licences in the whole world.
34 This statement is correct in civil law based legal systems; in common law systems, such intention to get correct performance is rather exception-called specific performance-and it is used only when there is not possible to remedy for damages occurred.
35 See § 502(2) OZ.
36 There is still a question, how could be a defect defined for the computer programms, when there is nothing like ``usual characteristics'' of computer programs and they are so complicated, there is no way, how could contract defined their characteristics enough sufficiently. Probably, the best way is to define the defect as a difference between the computer program and an accompanied documentation. Difficulty with this idea is, of course, that documentation is provided by the author of the computer program as well, so he may modified the documentation in order to ``cover'' any remaining problems in the program.
37 § 420(3) OZ-for more thorough explanation see [101998Knapp ], p. 335.
38 Despite my warning on page , that issues of damage and liability for defects cannot be mixed together, both issues are so intertwined, that when considering one, it is often necessary to take other into account.
39 I targeted this analysis mainly on software distribution provided free of charge because I guess, that a commercial distributor of software should be able to employ a lawyer to provide a legal analysis tailored to her particular situation.
40 For deeper exaplnation of term causal nexus see [101998Knapp ], p. 353; this textbook is source of all my quotations in this section, unless indicated otherwise.
41 Both terms ``intention'' and ``negligence'' are not specified in a private law theory, but private lawyers use theory of criminal law, where the terms are crucial for determining responsibility of criminal.
42 Which is the most relaxed limit of unconscious negligence, according to § 5 TZ.
43 See for example [141992Zoul í k ], p. 146.
44 Unless there is some type of special responsibility, which is the case in many business related situations.
45 I guess, that even after only these two sentences, you can get a feeling, that this is very complex matter where we are right now. And you would be very true-conflict of laws is probably the most obscure and complicated part of the legal thinking. Therefore, be aware, that following explanation is very simplified.
46 Specifically § 261 ObZ.
47 See [71998Isaac ].