Brussels / 2 & 3 February 2013


Legally Cementing Licences in Legislation

Two Law Merchant Models for Free Software Licences

Much of the legal talk about licences centres around issues of enforceability, compatability and transferability. Before licences were tested in court, enforcement was carried out in a quasi-legal way and “bargaining in the shadow of the law” was the norm. Later, some cases came to court across a number of jurisdictions and a variety of FLOSS licences have been upheld, albeit in lower courts. This does not really set any legal precedent but it has brought a little predictability to the area. The debate about the legality of these licences is still current, nonetheless and new licences are being drafted, despite a plethora already in existence. Seen in a socio-legal and historical context, such agreements emerge when the law does not provide for the type of arrangement envisaged but there comes a point at which the legislature needs to respond to provide legal certainty which a licence or contract may not. This talk explores two possible legal evolutions which would ensure the legality of FLOSS licences: either the enactment of an international or regional convention along the lines of the Free Software Act or else an agreement between licensor and licensee along private international law principles (choice of law clauses) which can then be enshrined by the courts.


Maureen O’Sullivan
Ian Ó Maolchraoibhe