Maureen O’Sullivan

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 http://www.law.ed.ac.uk/ahrc/script-ed/issue4/FS-Act.asp 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.

Other people: Ian Ó Maolchraoibhe