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169 lines
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<title>LLW2018: The FSFE brings together top legal experts to debate about
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cross-cutting legal and licensing issues around Free Software</title>
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<body>
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<h1>LLW2018: The FSFE brings together top legal experts to debate about
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cross-cutting legal and licensing issues around Free Software</h1>
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<p>Following more than a decade long tradition, the
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FSFE once again led its annual Free Software Legal and Licensing
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Workshop (LLW) in 2018: a meeting point for world-leading legal experts
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to debate issues and best practices surrounding Free Software licences.
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This year we decided to bring the event back to its roots and emphasise
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the "Workshop" part in its original title: around 120 legal experts
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gathered for a 3-day conference in Barcelona, Spain with an
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unprecedented amount of parallel tracks and interactive sessions
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designed to dive into the most contentious topics in the legal world of
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Free Software.</p>
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<p>Traditionally, the whole event is covered under the
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<a href="https://www.chathamhouse.org/chatham-house-rule" target="_blank">Chatham House
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Rule</a>, enabling confidential discussions under fair terms for all the participants.
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However, the part of the conference not covered by Chatham House Rule
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(as explicitly stated by speakers) was reflected in a series of articles
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by Jake Edge from LWN.net, who wrote about the following discussions
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that had taken place during the LLW2018:</p>
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<p>Marcus von Welser and Armijn Hemel gave an overview of the recent GPL
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compliance <a href="https://lwn.net/Articles/752485/" target="_blank">case</a> in Germany, where
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Patrick McHardy claimed that the company Geniatech violated his
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copyright in Linux kernel. The regional court in Cologne (Germany),
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where the case was brought into action in 2017 initially granted McHardy
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the injunction and obliged Geniatech to stop from distributing any
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version of the kernel. Geniatech appealed the injunction on the grounds
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of being too broad and restrictive, as Patrick McHardy cannot be
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perceived as a co-author of Linux kernel, as he claimed. In fact, his
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contributions to Linux kernel under GPL v.2 could only be considered as
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adaptations under German copyright law which gives him right to claim
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the discontinuation of distributing kernel versions with his
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modifications only. According to Marcus von Welser, there are more than
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100 officially released versions of the kernel that do not include any
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contributions from McHardy. By ordering Geniatech not to distribute any
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version of the kernel, the court was covering kernels that were not even
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part of the dispute with McHardy. After an oral hearing at the higher
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regional court of Cologne in March 2018, McHardy eventually withdrew his
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application for an injunction. The case shows that there is a need for a
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wider information exchange on how to build adequate legal defense
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strategies against copyright trolls.</p>
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<p>Dirk Hohndel presented the <a href="https://lwn.net/Articles/752982/" target="_blank">challenges of compliance of container
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images</a>. With containers being a hot
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topic, there are many issues with container images and their compliance,
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according to Hohndel. Primarily, it is a common practice to just copy a
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container image from random internet locations, ignoring licences.
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According to Hohndel, such practice is not only a security nightmare but
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also a "rabbit hole" in terms of identifying what is actually shipped in
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such containers. While it is already hard to figure out which packages
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are included in the build, it is even harder to fix any compliance
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issues after you have identified any. The version and which patches are
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applied are also difficult to determine. Beyond that, the licences
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under which those packages are distributed are not obvious. This is why
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it is important to train software developers about the pitfalls of the
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container build systems, according to Hohndel. Additionally, containers
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need to be built with good compliance practices in mind: for example,
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starting from a base that has known-good package versions, corresponding
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source code, and licences. Needles to say, the anti-pattern of
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installing container images from random internet locations has to be
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avoided.</p>
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<p>Mike Dolan <a href="https://lwn.net/Articles/753648/" target="_blank">presented</a> the Community
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Data Licence Agreement, a legal instrument to enable sharing relevant
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data for applications like machine learning, blockchains, and open
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geolocation, similarly to how Free Software licences work for software.
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The idea behind the CDLA is to share data openly using the knowledge
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acquired from decades of sharing source code. There are two types of
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agreements in CDLA inspired by copyleft and non-copyleft licences for
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software. Solely applying Free Software licences to data is not optimal,
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as there are fundamental differences between data and source code, and
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this is why a separate legal instrument is needed in order to address
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issues that are data-specific. For example, data can be perpetual and
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this is why it might be impossible to recreate the same conditions under
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which such data was gathered. That means the license under which such
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data is released may be critical to how it can be used decades or even
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centuries from now.</p>
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<p>Participants were also updated about recent developments and the
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Appeal's court's reasoning in the on-going legal battle between Oracle
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and Google over latter's use of Java application programming interfaces
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(APIs) in its Android operating system. It is long-standing tradition to
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borrow APIs from different products in software development in order to
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ensure compatibility between programs. In short, an API allows two or
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more programs to speak to each other by using common specifications.
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Oracle brought a legal action against Google back in 2012 claiming its
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copyright violation over the use of APIs written in Java. In 2012, a
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district court ruled that APIs are not subject to copyright. That
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decision was overturned by an appeals court and returned to the same
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district court. In 2016, the jury ruled that Google’s use of the Java
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APIs qualified as permitted "fair use" under US law. Oracle appealed the
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jury decision, stating that Google copied former's APIs solely for
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commercial purposes, copied thousands more lines of code than necessary,
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as well as lured Oracle's customers from licensing Java SE to switching
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to Android because Google provided free access to it. In March 2018, the
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appeals court sided with Oracle and ruled that Google's use of Java APIs
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in question was not fair as a matter of law. While the case is far from
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over, as Google can further appeal the decision in the Supreme court, it
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may set a precedent for software development in general.</p>
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<p>Artificial intelligence (AI) and automated decision making and its
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connection to Free Software in the 21st century was another topic for a
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debate during the conference. When it comes to generalisation of
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automated decision making, we need to look beyond a Free Software
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licence to meaningfully address all the issues affecting users' rights.
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In the workshop discussion, participants concluded that automated
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decision making raises points that are not easy to solve. In particular,
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we expect every automated decision that affects humans to be accompanied
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by a human understandable explanation of why this decision was made. For
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machine learning techniques, and in particular deep learning, there is
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little understanding on how to ensure that AI is explainable, and it is
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currently an active area for research. There are also challenges when it
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comes to transparency and accountability of decision making processes.
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In particular cases, this criterion is impossible to achieve, e.g. by
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providing full access to medical history of a population used to train
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certain algorithms.</p>
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<p>In another interactive workshop session, the participants gathered
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to identify and address the common legal pitfalls for public
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procurement of Free Software. The participants first identified a few
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real-life cases on how Free Software procurement process can be
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regulated. A legal requirement to prioritise procurement of Free
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Software (like it is the case in <a
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href="/news/2014/news-20140116-01.html"
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target="_blank">Italy</a>) is a good option for more Free Software in
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public sector in law and theory. However, the Italian case lacks the
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practical implementation, as the law does not foresee sufficient
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sanctions in case of non-compliance. Another case comes from town of
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Barcelona, Spain, where advanced policies and guidelines for procuring
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Free Software for public sector are adopted on the local municipality
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level. In case of Barcelona, the decision to move towards more Free
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Software in public sector is made by procuring public authorities
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themselves, rather than by a top-down legislative requirement. The
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downside of such a "soft law", however, is the uncertainty of positive
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procurement policies once the mandate of politicians runs out. There
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is, therefore, a need for a culture change in public administrations
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and a strong political will to change existing preconditions in public
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procurement.</p>
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<p>The workshop would not have been possible without the generous support
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of all the event's sponsors. In particular, we would like to thank our
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Platinum Sponsors: Intel, Red Hat, and The Linux Foundation.</p>
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</body>
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<tags>
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<tag key="front-page"/>
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<tag key="legal">Legal</tag>
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<tag key="licensing">Licensing</tag>
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<tag key="compliance">Compliance</tag>
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</tags>
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<author id="malaja"/>
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</html>
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