December 21, 2006

Brazilian state struggles to write free software license

Author: Bruce Byfield

One of the aims in the drafting of the third version of the GNU General Public License (GPL) is to internationalize the language to make it easier to translate. Those who doubt the need for this effort only need to look at the efforts to write an alternative free license in the Brazilian state of Paraná to change their minds. Despite the good intentions of its creators, the alternative license has been labeled as non-free by the Free Software Foundation (FSF) and its Latin American counterpart, the FSFLA, and is currently being re-written under some protest -- all of which might have been avoided or minimized had an internationalized version of the GPL been available.

Paraná is a state in southern Brazil with one of the highest standards of living in the country. Its government has a history of promoting education and health, and in the past has introduced such initiatives as the banning of genetically modified foods. Like a number of other states in Brazil, Paraná has also shown a strong interest in promoting the use of free software. Its
Licença Pública Geral para Computadores da Administração Pública (General Public License for Public Administration Computers, or LPG-AP) is intended as the license for state-developed free software. The license was developed within CELEPAR, a state computer company that works with both free and proprietary software.

Omar Kaminski, one of the drafters of the LPG-AP and a representative of Brazil in the drafting of GPLv3, says, "We decided to make a license because there isn't an official translation of the GPL for Brazilian Portugese, and there are some few incompatibilities with Brazilian legislation. The license was created for [use by] the public administration of a Brazilian state, not for end users to use in personal projects. So, instead of adopting the GPL and risk facing a legal problem, we [decided to develop] a FLOSS license."

Perspectives on the license

However, Alexandre Oliva, secretary of FSFLA, says, "Both FSFLA and the original FSF have pointed out incompatibilities with the free software definition, which makes the license a proprietary license, contrary to the stated intentions."

Specifically, Oliva suggests that the LPG-AP:

  • Applies only to "all interested persons" and using the program "under normal conditions," rather than applying to everyone in all circumstances.
  • Does not allow distribution of source code without binaries.
  • Allows its permissions to lapse after 50 years, which is the current period for copyright in Brazil, but not necessarily in other countries, nor in the future.

In fact, according to Oliva, the LPG-AP Is incompatible with copyright law, since copyright lapses 50 years after the January 1 after publication, not 50 years beginning immediately upon publication. This discrepancy, he says, "creates a window that lasts from one to 364 days in which, just before the software enters the public domain, it can't be used." In addition, Oliva suggests that section 6 of the initial statement of principles, which states that the license does not allow programs to be distributed for payment or in proprietary systems, conflicts with section 3.2 of the license, which states that the license "does not preclude charges for other services or costs."

In reply, Kaminski objects strongly to the description of the LPG-AP as "proprietary." "Just because it isn't compatible with free software doesn't make it proprietary, like a EULA," he says. He does not respond to most of Oliva's comments, although he does suggest that objecting to the 50-year term of the LPG-AP is a "weak argument." According to Kaminski, the "GPL is incompatible with Brazilian legislation," which is why the LPG-AP is necessary in the first place.

Kaminski also suggests that "perhaps free software in Brazil is moving in a different direction than in the USA, where free software is an end in itself." In other words, while free software in the United States is a reaction to the restrictions of proprietary licenses, Kaminski suggests that, in Brazil, perhaps those restrictions are irrelevant because free software is being promoted by the federal and the state governments.

Recent developments

Despite his objections, Kaminski says, "We are debugging the license, and studying a new version to make it more compatible, although it's not formally necessary and there's no obligation to do so, because we should obey the administrative and constitutional laws and principles."

Since the first version of the LPG-AP was released, the federal government of Brazil has settled on the Creative Commons GNU GPL license as the officially Brazilian Portugese translation of the GPL. However, as Kaminski points out, using this translation would not have avoided the need for the LPG-AP. As well as any incompatibilities between the GPL and Brazil legislation, Kaminski suggests, "It's not the right time to adopt an unofficial translation -- I mean, one not recognized or trusted by the FSF. I don't think it's a good move, especially for a state government that needs to obey several administrative law principles and the federal constitution."

Speaking at the second international conference on GPL3 in Europe in April 2006, Richard Stallman said that, because of the difficulties of translation and the need to understand different bodies of law, "Producing a translation of the GPL in any other language would be much harder than what we've already done and I can't trust this. I don't know who I can trust this to do. I know lawyers in various country who strongly support the Free Software movement, but to entrust this to them is a so much [sic] ... especially when a mistake can destroy things world wide." Instead, in the GPLv3 drafts to date, the FSF has opted for language as neutral as possible in the hopes of ensuring that translators are not mislead by terms that could vary in meaning in different legal jurisdictions.

This effort might not completely prevent debates such as the ones over the LPG-AP. However, it promises to simplify them by allowing everyone to agree on a common set of facts with less effort. Without such agreement, determining whether the GPL conflicts with local policies or laws is difficult -- let alone finding a way around such difficulties. The situation in Paraná seems likely to be settled with nothing worse than a bit of irascibility, but it is a small taste of the kinds of problems that could easily arise elsewhere.

Bruce Byfield is a computer journalist who writes regularly for NewsForge, Linux.com, and IT Manager's Journal.

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