Term Paper: Legal Issues With the Use of Open Source Software in Government and EU Public Service

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EU Open Source Software

Legal Implications for European Union Governments

The Use of Open Source Software in Government and EU Public Service

Current EU Software Policy: Any Directives, Regulations, Whitepapers and Official Documents Detailing the Current Official Position of the European Union on Software.

Free and Open Source Software vs. Proprietary Software

Legal Case Study - Brazil (i.e. what the Brazilians have done and are doing about open source legal issues during and after implementation of software)

How ill E.U. Governments be affected if following the Brazilian example and its effect on E.U. Intellectual property policy?

How will E.U. intellectual property law and new proposed software patent directive affect Open source legality in the EU?

Legal cases that set precedents for Intellectual property concern in open source software use (E.g. Sco vs. IBM, and other copyright, licensing and patent court cases)

Conclusion and Summary

Legal Implications for European Union Governments

The Use of Open Source Software in Government and EU Public Service

I. EU Policy: Open Source Software a. Definition of Open Source Software

Originally the Open Source Definition "started life as a policy document of the Debian GNU/Linux Distribution. There are many inclusive licenses in the realm of Open Source Software. All of the licenses that are noted by this work have one feature in common which is "they each disclaim all warranties." (2005) The intention of this disclaimer is the protection of the owner of the software from liability connected to the software program." This is considered to be reasonable in that there is not sufficient revenue from the program for liability insurance and legal fees to be funded. Open source software is defined as software containing no royalty or other fee imposed upon the redistribution of the software; the source code is available; the right to create modifications and derivative works exists; it may require modified versions to be distributed as the original version plus patches, there is no discrimination against persons or groups contained in the software as well as no discrimination against fields of endeavor; all rights granted must flow through to and with redistributed versions; the license applies to the program as a whole and each of its components, and the license must not restrict the other software thus permitting the distribution of open source and closed source software together. Open source software is defined as: any software program that has a source code which is made available for its' use or modification as developers or other users see fit and it is generally developed in the manner of public collaboration and thereby made available freely. Open Source is also a certification mark that is owned by the OSI or Open Source Initiative and it is intended to be share both freely and even as an improved and redistributed version by others who abide by the distribution terms of the Open Source Initiative's Definition. This software is such that may be distributed or redistributed to other parties without any encumbrances of restrictions. Furthermore the source code must be available for the party receiving the software to possess the capability of improvement or modification of the software.

There is a possibility that the license may require that improved or modified versions of the software to carry a different name and possibly may require that it be stated as a different version of the original software. The Free Software Foundation has a very similar concept in the copy left concept. Many of the Unix operating system part were developed through the Free Software Foundation including the present version of Linux. Linux utilizes applications from the GNU project headed by Stallman and the Free Software Foundation. The Open Source Definition headed up by Raymond is focused toward providing a guideline or branded model for distribution of this type of software in terms of distribution and redistribution. According to OSI regulations "the existing software distribution licenses used by GNU, BSD (a widely-distributed version of UNIX), X Window System, and Artistic to be conformant with the Open Source Definition." (http://searchenterpriselinux.techtarget.com/sDefinition/0,sid39gci212709,00.html)

Each of the following are inclusive in the definition of Open Source Software:

Free Redistribution;

Source Code included with program;

Derived works and modifications are allowed;

Integrity of author's code;

No discrimination against person or groups;

No discrimination against fields of endeavor;

Distribution of license;

License must not be specific to product;

License must not restrict other software; and License must be technology - neutral.

b. Free Software Foundation (FSF)

The Free Software Foundation (FSF) was first established in 1985 for the purpose of promotion of computer users' in their "rights to use, study, copy, modify, and redistribute computer programs." (Free Software Foundation online @ (http://www.fsf.org).Further promoted by the FSF are both free software use and development specifically the GNU operating System which is use in the GNU/Linus variation. The FSF further focuses toward the "spread of awareness of the ethical and political issues surrounding freedom in the use of software." Current projects of the Free Software Foundation are as follows:

GNU;

Free Software Licensing and Compliance Lab;

Free Software Directory; and Savannah. (Free Software Foundation Online @ (http://www.fsf.org)

The following chart shows the primary licenses and their specifics of use in relation to open source software.

License Can be mixed

Modification can be reliscensed Contains special

With non-free taken private and by anyone privileges for the Original copyright

Holder over your

Modifications

GPL NO

NO NO

LGPL YES

NO NO

BSD YES

NPL YES

YES NO YES

MPL YES

PUBLIC DOMAIN YES

Chart 1.0 c. Open Source Software and Financial Impacts on European Economy

According to the European Commission report located Online at the Information society Policy Link: "Europe's content sector alone - media, publishing, marketing and advertising - contributes around 5% to Europe's GDP or some $433 billion, putting it ahead of Europe's telecommunications industry which is a $254 billion industry." (Information Society and Media, 2005) (Information Society and Media, 2005) Furthermore the report relates the fact that the sector claims approximately 4 million employees and is expecting strong growth with the progression of the digital age. Many different sectors of society are brought together in the software arena such as freelance artists, writers, and publishers, independent film-makers, distributors and advertising agencies.

d. Media and Audiovisual Policy

Media and audiovisual policy is an area that the EU has been involved in since the early part of the eighties decade. Current policy framework is stated to date "from the 1992 Treaty on European Union.(Information Society and Media, 2005) Further provisions relating to public broadcasting have focused on the areas of:

1) Regulatory framework which results in an single market for broadcasting that is safe for cultural diversity, effective in delivery and also protects minors from viewing harmful content;

2) The European support mechanisms complement and are coordinated with the national systems'; and 3) External measures, most specifically the cultural interests of the Europeans are defended in the WTO arena.

The "Television without Frontiers Directive" focuses on the creation of necessary conditions to allowing television broadcasts free movement all across the EU region. Secondly "Communication" of 2004 clarifies the method by the Directive is applied in relation to the interactive techniques of advertising that are yet new." (Information Society and Media, 2005) Other issues are yet under review and are stated to have the capacity to result in amendments of the TVWF Directive or the new directives proposal by 2005 years end. Other EU policy framework is inclusive of regulations that "promote competition between infrastructure providers and service providers while ensuring access for user of networks and citizen's rights; measures on copyright and digital rights management; access to and use of public information, as specified under the Public Sector Information Directive; and eInclusion, ensuring that all Europeans can access the new generation of digital content and services." (Information Society and Media, 2005)

Media services that are digitized are those content and services which are "Delivered over wide variety of devices, allowing users to access them by the most convenient means. Whether it be PCs, mobile phones, televisions or other devices; Personalized, according to the user's individual situation; land localized, according to the user's physical location - a key value add for content and service delivered over mobile networks" (Information Society and Media, 2005)

An important role is that of mobile internet in the multi-platform approach due to the fact that interactive television has the potential to "provide a ramp for users who are reluctant to embrace other routes to the Information Society." (Information Society and Media, 2005)Consumer benefits are things such as "more channels and higher quality pictures" (Information Society and Media, 2005) e. Fifth Framework Programme, and the IST-FPS Programme

EU-funded research claims the development of the digitized television system, one example being the MPEG2 standard use in DVD as well as many other technologies being used presently. The research activities within the "Fifth Framework Programme" has as its' focus "the much -heralded convergence between the computing telecommunications and media industries." (Information Society and Media, 2005) From enabling… [END OF PREVIEW]

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