Beginning of 2006 was marked by important event which was long awaited by free software developers: Free Software Foundation has published first GPLv3 draft on January, 16th. Unfortunately, a number of additions in it is less usable under Russian law than existing GPLv2 which also isn't trouble free. To start with, these issues aren't serious enough to block GPLv3 use in Russia even in its current form. Russian civil law is flexible and reasonable enough to excuse and in fact regularly let off even more damaging issues. However, it requires substantial good will from judges and in some situations the license could be treated differently than it was expected. Also we could eliminate some issues with Russian law which already exist in GPLv2.
Below we refer to English translations of Russian laws using following sources:
Russian Civil Code: http://www.russian-civil-code.com/
Russian law requires that act of copyright rights transfer should be made in a certain form. This is no different from legislations of other European countries, in particular, Germany. GPLv3 in many aspects doesn't correspond to requirements which are imposed onto such a form.
Let's start from fundamental requirements. Section 30 of the Russian Copyright Law says
Article 30. Transfer of Property Rights. Author’s Contract
The property rights indicated in Article 16 of this Law may be transferred
author’s contract, except for the cases as are provided for by Articles 18.
Property rights may be transferred pursuant to the author’s contract
rights or the author’s contract on the transfer of non-exclusive rights
But section 9 of GPLv3 starts as...
9.[5] Not a Contract.
You are not required to accept this License in order to receive a copy of the Program. However, nothing else grants you permission to propagate or modify the Program or any covered works. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating the Program (or any covered work), you indicate your acceptance of this License to do so, and all its terms and conditions.
I.e. we have a controversy: a license (treated as a contract by the Law) contains clause which states that relations imposed by the license are not a contract which means that the license doesn't exist from juridical point of view. To make things worse, the same section describes relations which are in fact rephrase norms of a contract of adhesion as described in the Russian civil law.
As this controversy is obviously irrational in any jurisdiction except some but not all U.S. states, results of it are unpredictable. Court when examining a case should follow documents presented by both sides and when such a document contains several controversial clauses it is really hard to predict results and acceptance of such a document's juridical status.
The reason for such strange declarations is in the difference between civil and common laws, and also in the subtlety of Russian "dogovor" (Договор) and American "contract". The subtlety is so thin that it is not noticeable without special research in comparative science of law. By Russian law and in general in civil law, "dogovor" (or deal) is an action by means of which citizens create their rights and liabilities. By American law a "contract" is an exchange of obligations often understood narrowly as obligations for future period of time. Contract, by American law, is a specific juridical form which is different from other forms like sale and lease/license. Understanding this, however, we don't solve the problem at all.
Next, in the section 31 of the Russian Copyright Law ...
Article 31. Terms and Conditions of the Author’s Contract
1. The author’s contract shall specify: the ways in which the appropriate work may be used (specific rights transferred under such contract); the period and territory for which rights are transferred; the amount of royalties and/or the procedure for determining the same for each way of using said work, the procedure and time frames for payment of such royalties, and such other
terms and conditions as may be deemed essential to said contract by the parties thereto. Should the author’s contract not specify the term for which rights are transferred, such contract may be terminated by the author five years from the date of its conclusion by notifying in writing the user thereof six months prior to such termination.
Should the author’s contract not specify the territory for which rights are transferred, the validity of the rights transferred thereunder shall be limited to the Russian territory.
2. All the rights to uses of a work that have not been directly transferred under an author’s contract shall be deemed not transferred.
Such rights to uses of a work that were unknown as of the moment of the conclusion of the author’s contract may not constitute the subject thereof
Some of these conditions aren't mentioned even in GPLv2 which means there is certain level of context loss and freedom of interpretation. In GPLv3 some parts are better and some are much worser. We have improvements in non-important components while worse is happening in a key area.
First and foremost, amount of royalties represents a mandatory part of an author contract and is especially tracked by Russian courts. There are cases already where author's contract was nullified due to the fact that royalties were not specified at all.
Russian Copyright Law doesn't have any meaning of transfer of author rights without royalties. However, given the fact that considerable part of all relations are royalty-free author's contracts, we don't think it is real to ban them right away. Articles 421, 423 of Civil Code of Russia make possible to think that most safe way to overcome it is to directly specify in the license text that royalties are zero -- i.e., they are not charged.
This is where GPLv3 is worser than GPLv2. The latter had at least a "free of charge" statement in the "NO WARRANTY" part 11.
GPLv3's second draft improves situation a bit by introducing requirement of
. Therefore, you may not impose a license fee, royalty, or other charge for exercise of rights granted under this License.
which could be used as an argument to state that rights are transfered free of charge if derived version is distributed under GPL itself. However, situation with initial owner is still unclear.
Both second and third versions of GPL have no mention for the period of rights licensing. By Russian laws, if there is no period specified, it is defined to five years. It is not important part due to the fact that license starts acting not from software publication but from the time when an user accepts the license. As this acceptance is done by tacit actions, i.e., distribution or creation of derived work, period of execution of rights transferred by the license usually is less than few hours or days.
However, another question is how long does act this offer? Article 441 of Civil Code of Russia says:
1. When in the written offer no term of acceptance has been stipulated, the contract shall be regarded as concluded, if the acceptance has been obtained by the person, who has forwarded the offer, before the expiry of the term, fixed by the law or by the other legal acts, and if such term has not been fixed - in the course of the normally required time.
We could argument that in case of public licensing "normally required time" would be an infinity but it would be better to add direct mention of this in the GPL near section 9. Something like
This License constitutes a written offer, valid as long as copyright restrictions on the Program exists, to exercise legal rights, granted by the License.
There is also no specification of the territory where this license is acting. In fact, it is specified but only for a patent license (Section 11 of GPLv3) and only for authors of derived works. Direct damage isn't big as by default license is acting on the territory where licensee is acting but there are possible side effects when packaged software passes through country borders. We already had such problems when Ukrainian users who bought Russian Linux distributions were questioned by customs on the validity of terms they have got it (i.e., GPL) in Ukraine.
This is not an legal question but rather principal. Software patents are not legal in Russia, however, they were not legalized in other countries as well -- their existance came through acceptance of absurd interpretations, precedents and customs. Russia has already moved into this direction. While no software patents were legalized in Russian courts, there are known cases when they were granted. Most known one is 2005's case with patent to smileys issued to a St.Petersburg's resident who tried to enforce it then against Siemens.
GPLv3 could serve a bad turn by mentioning software patents as non-discussed reality and therefore helping to legalize them in Russia.
One of most illustrative cases is Section 2. Current edition just says about the fact that "Activities other than copying, distribution and modification are not covered by this License; they are outside of its scope. The act of running the Program is not restricted". But GPLv3 adds "permission to run the Program" with a set of conditions. This "permission" can't be based on copyright law because copyright law does not include run of program into the set of exclusive author rights. Most countries take special steps to exclude casual intersection of such rights with normal use of a program (which is possible, of course). Such conditions only facilitate creation of software patents because most of issued software patents provide exactly description of execution of a specific algorithm. Therefore, this approach makes worser situation where software patents are illegal by weakening current position.
What's more important, authority of such conditions almost impossible to prove in courts. Patent laws in most of countries have norm known as "exhaustion of an entitlement" or "first sale" which is similar to copyright law norm. Russian patent law says following:
Article 11. Acts Not Recognized as Infringements on the Exclusive Right of the Patent Owner
The performance of the following acts shall not constitute an infringement of the exclusive rights of the patent owner:
* import into the Russian Federation, utilization, offer for sale, selling, other introduction into civil circulation or storage for these purposes of a product, incorporating a patented invention, utility model, or of a device, incorporating a patented industrial design, if such product or device had been introduced into circulation in the Russian Federation earlier by the patent owner or by another person, authorized by the patent owner.
Which means that patent owner can't restrict use of a product which contains the patent if (s)he is already allowed creation and sell of it. Here we see controversy of software patents and misleading effect of precedence law.
From one side, program transferred in machine-readable form constitutes typical "product" (or service if the transfer is being done on hard-disk of user's computer) which is directly allowed by license. On another side, program is also an information about invention which distribution isn't covered by any limitations because it should be publicly available as it is fundamental condition of patent law.
These controversies constitute one of typical reasons why software patents are not allowed legally almost everywhere. In practice these questions are either sidetracked or ignored, adding complex legal theories. Accepting one of those theories legally can substantially destroy whole software industry.
As we can see, FSF in practice can't use patent law arguments or allow others to use them in free software community. That means that patent license can't be a lever for establishing rules and limitations for use of free software. It would be good to use different sentences which don't assume juridical authority of patent claims to programmers.
In particular, we suggest to make unconditional right to execute modified program in section 2 and move anti-patent defense into last sentence of this section where it would be based on copyright law instead of patent. Final damage would be small as any big-scale use of modified program would be also accompanied by set of internal copying. And it is also questionable why patent trolls should have unconditional right for internal copying.
GPLv3's part which regulates distribution of licensed program via Internet is substantially based on specific to US legal theory which represents distribution over digital network as series of copying done by sender, receiver, intermediate providers and so on. This means that issuing ftp:// or http:// requests user in fact doesn't send requests to the server and receives an answer but "enters" into the "server" and copies files from there. This is a linguistic negligence which became legal fiction. As result, user with browser becomes direct infringer and owner of the site is also alleged in contributory infringement which is also US specific term.
This theory isn't accepted outside USA. Even in USA it is not commonly accepted -- see for example Specht v. Netscape or Perfect9 v. Google. In most European countries, including Russian Federation (at least until recently) Internet-based transfer is viewed as sort of broadcasting similar to cable and aerial broadcasting. For file downloading this creates a reverse though idealized situation when whole translation, including writing file to a hard-drive of users' computer is done by server's owner. To complicate situation, from September 2006 Russian Copyright Law introduces new exclusive right " to communicate to the public"
Article 16. Proprietary Rights
1.The author shall enjoy the exclusive right to exploit his works in any form and by any means.
2.The author's exclusive right to exploit the work shall be construed to mean the right to perform or authorize the following acts:
....
communication to the public of the work in such a way that members of the public may online access this work from a place and a time individually chosen by them (right to communicate to the public)
This new exclusive right as declared by lawmakers meant exactly distribution over Internet. This can be supported by the fact that almost half of articles added in new edition represent almost literal translation of WIPO copyright convention:
Article 8. Right of Communication to the Public
Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
As we can see, Russian Copyright Law dropped out thought that it is a sort of broadcasting and also "members of public" aren't anybody. Resulting formula is getting farther from Internet communication and just specifying password on server outrules its applicability. On the other side, literal application of it makes practice much more dangerous and increases confusion.
The part of GPLv3 which regulates licensed program over Internet is substantially based on US-specific understanding of Internet communication:
6.[3] Non-Source Distribution.
You may copy and distribute a covered work in Object Code form under the terms of Sections 4 and 5, provided that you also distribute the machine-readable Complete Corresponding Source Code (herein the "Corresponding Source") under the terms of this License, in one of these ways: ...
d) Distribute the Object Code by offering access to copy it from a designated place, and offer equivalent access to copy the Corresponding Source in the same way through the same place. You need not require recipients to copy the Corresponding Source along with the Object Code.
[If the place to copy the Object Code is a network server, the Corresponding Source may be on a different server that supports equivalent copying facilities, provided you have explicitly arranged with the operator of that server to keep the Corresponding Source available for as long as needed to satisfy these requirements, and provided you maintain clear directions next to the Object Code saying where to find the Corresponding Source.]
In European and Russian legal system and tradition applicable to Internet this construction might cause particular intensiveness. it would be better to say without specific legal interpretation of actions, something like this:
d) Propagate the Object Code through the means that enables creation of copies using recipient's own medium, providing ability to create copy of Corresponding Source through the same means. You need not require recipients to copy the Corresponding Source along with the Object Code.
Second draft adds "communication to the public" but in completely different way:
making available to the public,
which is incomplete and in European law must be accompanied by medium where "making available" is done because full name of this exclusive right is "making available to the public via aerial or cable".
Section 12 of GPLv3 requires that licensee should not accept the license if it can't fulfil both this license's and other conditions imposed on him. This was in part implemented in GPLv2 but is substantially extended in GPLv3. Is this condition also applicable to situations related to a statement licensing of certain types of activity? For example, cryptography is a licensed activity. How can we use then GPL-licensed cryptography, medical and similar software in Russia then?
We can't say for sure that it is new GPLv3 problem or GPLv2 is also affected by it.
We may suggest to Russian programmers that if their GPL-licensed software has any relation to cryptography, medicine or other licensed activity, following exception could be added to the license:
In addition, as a special exception, license requirements, explained in section 7 of GPL version 2 (and in corresponding clauses of subsequent versions of GPL) do not apply to possible interferences with government licensing of cryptography technologies or other similar governmental regulations. In other words, your right to copy and distribute the Program, granted by this license, does not depend on possession of any governmental license.
It is not a purpose of this permission, however, to induce you to infringe said governmental regulations. It's purpose solely to ensure that such regulation completely out of the scope of this license.
(Russian variant: Дополнительно, в качестве специального исключения, требования секции 7 GPL второй редакции (и соответствующих норм последующих редакций GPL) не применяются к случаям возможного противоречия ее с государственным лицензированием криптографических технологий или аналогичными государственными регуляциями. Другими словами, предоставляемые вам здесь права по воспроизведению и распространению Программы не зависят от каких-либо государственных лицензий.
Данное разрешение не должно толковаться как побуждение к нарушению законов. Единственным его назначением является удостоверение, что гослицензирование никак не связано с нашей лицензией вам)
It would be better, of course, to have such a statement in the GPLv3 itself.
GPLv3 finally includes a statement that acceptance of it doesn't mean refusal of already existing rights user has on legal basis:
This License acknowledges your rights of "fair use" or other equivalent, as provided by copyright law.
It is good but we think this statement is not as good. “Fair use” as defined in US Copyright Act and Berne's convention is only one of existing copyright limitations. Even in US Copyright Act “Fair Use” is only one of four existing copyright exceptions and from programmer's point of view is one of most useless. In Russian law there is no “Fair use” language at all. The closest term is “right to quote” from article 19 of Copyright Law.
Also, we need to take into account that some forms of free use are limited by existence or absence of special copyright's owner permission.
Compare it to how it is provided in Creative Commons which we suggest to borrow:
2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.
“based on” another work means any modified version, formation of which requires permission under applicable copyright law.
There is no common agreement between copyright laws of different countries in which cases private modification has to be allowed by copyright owner. It would probably be better to use a stronger condition -- propagation instead of formation.
We would like to propose a change of
No covered work constitutes part of an effective technological “protection” measure under section 1201 of Title 17 of the United States Code.:
to
No covered work constitutes part of an effective technological “protection” measure in the sense of section 1201 of Title 17 of the United States Code.:
This would allow to keep emphasis on the fact that norm is active independently of particular jurisdiction and reference to a particular act is only to provide a definition.
You may copy and distribute convey such modifications or a work based on the Program, or the modifications to produce it from the Program,
Separate distribution of patches should be left outside of copyright law and in many countries is in fact outside of exclusive rights of copyright owners. We understand FSF's intent to provide free access to source code but it is important to not make it via extension of copyright law.
At least in Russian civil code one cannot waive its own legal capability to sue. It is possible to form an agreement in which fact of suing from one side frees another one from obligations under the agreement. Second draft replaces patent license by declaration of refusal of litigation for copyright infringement. We think that it is important to check that all consequences of breaking such declaration (i.e. suing) should apply only to future actions.