Open source is illegal? | Opensource.com

Open source is illegal?

Posted 29 Aug 2011 by 

Marek Mahut (Red Hat)
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Open source is illegal?
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Really?  Sadly, this isn't merely a provocative title, but rather is a real issue in some countries. The Slovak Republic is one of the few countries without localized Creative Commons licenses. Slovak copyright law does not consider open licenses such as CC or the GPL valid, because Slovak law requires a signed contract between both the copyright holder and the licensee. On the bright side, this is slowly changing - the Slovak Ministry of Culture has promised to update and reform the Copyright Act later this year.


While the Slovak Republic is slowly moving forward on the issue of open licenses, Romania appears to have taken a step backwards. The Romanian Ministry of Internal Affairs recently banned open source solutions from a public tender of almost 3 milion euro due to 'internal and European interoperability requirements'. The tender specifically says "All versions of software that are part of the offer may not be published under a 'free software license' - GPL or similar".

When asked about the restriction by citizens of the European Union, from whose taxes the project is paid, the Ministry responded, "Despite the fact the MAI administers GPL systems and encourages their use, for the time being all critical systems are implemented on Enterprise platforms, in order to be able to follow strict requirements for security and interoperability."

After several days, the Ministry decided to cancel the tender due to serious violations of  legislative provisions. I am looking forward to the new tender which, hopefully, will not discrimate against open source solutions.

By contrast, governments throughout the world are recognizing that open source is a viable solution for their mission critical goals.   Among the most recent developments, Australia and the UK have adopted affirmative policy statements on open source.  And just this past January, the US Government (with its tradition of strong IP enforcement) issued a government-wide memo with a succinct, clear message to Executive Branch IT leaders:   Don't discriminate between proprietary and open source solutions.

If open source is banned because of a security risk on Enterprise platforms, I'm wondering why entities like the New York Stock Exchange or the USA's National Security Agency do not share this problem.

 
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12 Comments

mths

Without any knowledge on the particulars: 'Lobby' and 'Corruption' may both be involved?

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mmahut
Open Source Evangelist

It is likely, IMHO. We will probably never know.

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romanianContractor

U can be sure about corruption.
Many tender requirements are wrote specifically for certain companies (usually by the named companies, bureaucrats only signing them)
And government is definitely into MS products, as they "yield" better bribes.

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Unidentified

The cat will come out of the bag sooner or later. Probably later as those deals are made in back rooms to avoid scrutiny.

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Andre M.

"Slovak law requires a signed contract between both the copyright holder and the licensee." In this case, the same should be valid to licenses from closed source companies, because when you buy a software (many comes with an EULA), you have not signed any kind of contract.

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mmahut
Open Source Evangelist

This is not correct. Slovak law requires two-way contract in case of delegation of copy rights from the copyright owner to a 3rd party, which is used in open licenses such as GPL or CC.

An EULA has little to do with copyright, really. An EULA is a type of end-user license agreement for usage of the product - none of the copyright privileges are delegated to the end-user. But this does not mean they are legally valid in every law system, I know some EULAs has been find invalid in United States as an example.

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Sum Yung Gai

I seem to recall a report about Microsoft executives coming into Romania and other Eastern European countries with lots of money to throw around, and the top officials in these countries were all cozied-up to these MS execs. Nah, no bribery at all here. Couldn't be. :-D

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Mark Sweeney

@Sum Yung Gai (among others): You wrote (Re, MS) "Nah, no bribery at all here. Couldn't be. :-D"

Well, let's hope not. As the sad saga of the News of the World scandal progresses, public attention to the manner in which US-based companies conduct their business affairs overseas has emboldened the US Justice Department in investigating the use of bribes to establish, retain, or conduct their business operations.

I doubt anyone at Microsoft is unaware of the The Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. §§ 78dd-1, et seq.). If they are, then they should retain competent council.

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lscott

Having a vendor write the specs for a project being but out for bids is a common practice in government. Vendor always tries to write the specs so that his products will be the only ones that qualify. Easy way to cut out the competition. Sometimes government will ask you to write the specs, sometime you have to pay them. :-)

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C. Stokes

Romania and Slovakia are (next to russia) on the whole the countries in eastern europe where softwarepiracy is not a crime but tolerated by systems law. so whats about this blabla from the officials? before they tell their lies they first should think about the situation in their own land !

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hadron

Hi,

I am from Slovakia, I am not a lawyer but I remember a teacher at the classes of law, still reapeating something like, the agreement is valid since your acts can be recognised as such (making agreement).

In practical example, even if you made spoken agreement (not writen and signed) it is valid, since you can prove it, e.g. you had a witness with you.

Even gestures,... like those made by bookmakers at stockmarket are valid trade agreements.

So In this case, overtaking a product (programme code) licensed under GPL, can be recognised as act of agreement itself, and can be proved by presenting the source code of a new application.

Or tell me why is this not right approach?

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CustomDesigned
Open Minded

That is a really cool idea. So using open source software is only legal if you can produce the source code! Kind of like certain US towns where all able bodied citizens (with no criminal record) *must* own a gun.

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Marek Mahut is working as a system engineer for Red Hat Czech. He's also the chairman of the Society for Open Information Technologies (www.soit.sk). He believes openness can make this world better.

My posts contains my personal opinion only.

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