Software, copyright and the learning environment: an analysis of the IT contracts Swedish schools impose on their students and
the implications for FOSS

Andrew Katz,a, b Björn Lundell,a Jonas Gamalielssona

(a) Software Systems Research Group, University of Skövde, P.O. Box 408, SE-541 28 SKÖVDE, Sweden; (b) Partner, Moorcrofts LLP Solicitors, James House, Mere Park, Dedmere Road, Marlow, Buckinghamshire SL7 1FJ, UK .

DOI: 10.5033/ifosslr.v8i1.108

Abstract

Free and open source software (FOSS) is commonly made available to students in schools, but the schools do not necessarily take a holistic approach to their provision of IT (including software) which takes into account the nature of FOSS. In particular, we have identified a number of contracts with which Swedish students who are provided with laptops by their schools are required to comply which set out conditions for the use of the laptops, and associated software and content. Many clauses in these contracts are legally incompatible with certain FOSS licences, or contain misconceptions about FOSS, licensing and culture. This paper explores the relationship between the contracts and FOSS licensing and culture, and suggests a number of resolutions to the contradictions and misconceptions, as well as considering related issues.

Keywords

Law; information technology; Free and Open Source Software; schools and education; further restrictions; GPL; Sweden

1.Introduction

In recent years public sector schools have been exposed to and adapted to a number of societal and technological changes which impact on educational practices. One such change concerns adoption of IT, including a variety of different types of software and services, in educational activities in schools.

In a broader study aimed to establish the state of practice concerning IT usage in Swedish public sector schools with students of school age in Sweden (which starts in the year they turn 7 and ends in the year in which they turn 19), an extensive data collection exercise was undertaken. The exercise included questions and requests for public documents from all public sector schools through data collection via each of the 290 municipalities in Sweden. As a number of schools and municipalities did not provide requested information, data collection continued with a long-term systematic effort to identify information about IT usage in schools. Information obtained included details on provision of software (including FOSS) and contracts related to IT usage in schools.

As part of the broader study, this paper presents new results on inconsistencies between FOSS licences and contracts applicable to students in Swedish schools governing their use of school IT (‘school contracts’). Further, and in so doing, we highlight misconceptions concerning copyright. Specifically, results presented concern: a characterisation of FOSS licenses used in Swedish schools; a critical review of inconsistencies between FOSS licenses and school contracts; and an elaboration on implications and resolution of inconsistencies between FOSS licenses and school contracts, with an elaboration on misconceptions concerning copyright.

There are two main goals in the paper. First, we identify and characterise inconsistencies between the licenses applicable to FOSS provided in Swedish schools and the contracts to which students of those schools are required to adhere in order to use school-provided laptops. Second, we explain the legal implications of, and suggest a resolution of, identified inconsistencies. In so doing, we report on certain misconceptions some of which may contribute to and explain identified inconsistencies.

There are four research questions:

RQ1: Given that certain FOSS applications are provided to students in Swedish schools, which FOSS licenses apply to that provision and what characterises those FOSS licenses?

RQ2: Given that Swedish students’ use of school laptops is governed by contracts issued by their school, to the extent that the terms of those contracts are inconsistent with the FOSS licenses applicable to FOSS applications identified as being provided in schools, what characterises these inconsistencies?

RQ3: Given that Swedish students’ use of school laptops is governed by contracts issued by their school, to the extent that the terms of those contracts are inconsistent with the FOSS licenses applicable to FOSS applications provided in schools, what are the legal implications of identified inconsistencies and how can those inconsistencies be resolved?

RQ4: Given that Swedish students’ use of school laptops is governed by contracts issued by their school, what misconceptions do those contracts contain about the effect of copyright and licensing both in relation to software and digital assets?

The rest of this paper is organised as follows. First, we provide a background on Swedish schools and provision of FOSS (2) followed by our research approach (3). Thereafter we characterise FOSS licenses used in Swedish schools (4), and characterise inconsistencies between FOSS licenses and school contracts (5). We report on implications and resolution of legal inconsistencies between FOSS licenses and school contracts (6) and elaborate on misconceptions concerning copyright, identifying, in addition, some related misconceptions concerning FOSS (7). Finally, we present our analysis (8), followed by discussion and conclusion (9).

2.Background

3.Research approach

To address the goals in this paper, a set of contracts used in Swedish public sector schools was obtained together with associated information concerning provision of software (including, in some cases, SaaS). The contracts and information were collected as part of the broader study: collected data from the broader study of relevance for this paper includes details on provision of software (including FOSS) and contracts related to IT usage in schools.

School contracts used in municipalities (including both those municipalities that provide and do not provide FOSS) were initially interpreted holistically in order to obtain an initial impression of potential issues. This was done with a view to identifying a relevant approach for analysis of statements and contract terms.

The scope of FOSS licences reviewed was determined by reference to the FOSS applications that were identified as being provided in schools as established in the broader study.

4.Characterisation of FOSS licenses used in Swedish schools

FOSS differs significantly from proprietary software (sometimes mistakenly called ‘commercial software’) in that its licence terms emphasise freedoms rather than restrictions. The preamble to a common FOSS licence (the GNU General Public License (v3)) states:

The licenses for most software and other practical works are designed to take away your freedom to share and change the works. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change all versions of a program – to make sure it remains free software for all its users. We, the Free Software Foundation, use the GNU General Public License for most of our software; it applies also to any other work released this way by its authors. You can apply it to your programs, too.

Where FOSS is made available under a copyleft licence, if it is distributed, it is a condition of the copyleft licence that the distributed code must be distributed under the same (or, in some cases, a specified compatible) licence. If FOSS is made available under a permissive licence, there is no such obligation, and the FOSS may be redistributed under any licence (albeit that there may be some requirements involving the retention of attribution notices and disclaimers).

Those contracts may (possibly as an unintended consequence) have the effect of limiting the scope of the FOSS licences under which the students have received the software. This is an issue which potentially affects all software which is made available under copyleft FOSS licences. However, some licences, notably the various versions of the GNU General Public License (GPL), for example (GPLv3) and GNU Lesser General Public License (LGPL) contain wording specifically preventing the imposition of further restrictions:

The issues arising from the attempted imposition of further restrictions on the FOSS licence do not arise with FOSS licensed under permissive licences. The extent to which they apply to other licences provided under copyleft licences other than the GPL depends on a careful reading of the individual licences, and even then is a matter of debate which is outside the scope of this paper.

• •GPLv2 (or any later version) 

• •GPLv3 

• •GPLv3 (or any later version) 

• •Mozilla Public License v2 (MPLv2) 

• •Apache v2 

• •Eclipse Public License v1 (EPLv1) 

• •LGPLv2.1 

• •LGPLv2.1 (or any later version) 

• •LGPLv3 

• •LGPLv2.1 with UNRAR exception 

Those with a copyleft effect which would grant the students the unrestricted right to use, study, modify and redistribute the code received under it, including a right to receive the source code are:

• •GPL (all versions) 

• •LGPL (all versions) 

• •Apache v2 

• •Mozilla Public License v2 (MPLv2)40 
• •Eclipse Public License v1 (EPLv1)41 

5.Characterization of conflicts between school contracts and FOSS licences

In addition to the legal concerns arising from an incompatibility between the FOSS licence and the contract, there remains the issue that many of the contracts reveal a degree of incompatibility in philosophy: where the students are provided with FOSS is it clear that the software’s authors intended that the software was to be made available in a way which respected the FOSS freedoms, whereas, many of the terms in the contracts attempt to impose restrictions which conflict with that intention.

5.1.On inconsistencies with FOSS Culture

A number of well known applications are available under FOSS licences, and are associated with the free and open source movements. It would therefore be reasonable for students receiving such applications on their school laptops to assume that they may be able to exercise the four freedoms in respect of them.

A number of school contracts contain clauses which have the effect of limiting one or more of the four freedoms. Irrespective of whether those clauses cause legal issues in relation to the original FOSS licence (which we consider below), they do, at the very least, conflict with the culture of FOSS.

5.2.Legal inconsistencies - classification of contract clauses

We classified clauses by determining whether they impinged upon each of the four freedoms. During such classification, it became clear that these were related to the bundle of exclusive economic rights reserved to the copyright owner (of software) by virtue of copyright law. Those rights are (1) copying; (2) modification and (3) distribution. The interaction can be shown in the following matrix (an ‘x’ in the box showing that, for the freedom indicated by the row containing the x, copyright licences covering the restricted acts in the marked columns are required, see table 1).

Table 1: Relationship between freedoms and exclusive rights reserved to the copyright owner.

5.3.5.3 Review of contract clauses

We reviewed each contract, and extracted (and translated into English) those clauses which we determined to have an impact on any one or more of the four freedoms. In a number of cases the same (or a very similar) clause was found across more than one contract, in which case we have only commented once. Footnote 58 explains the referencing methodology further.

The contract clauses below are not an exhaustive list, but illustrative of relevant issues contained in the contracts.

Freedom 0: The freedom to run the program as you wish, for any purpose:

Restrictions here include limitations on use for particular activities:

The equipment [hardware and software] must not be used for commercial purposes [U2].

The computer equipment must not be used in any commercial context, i.e. where the computer is used for any computing activities with a view to monetary gain [U3].

The computer may only be used for education [U4].

In addition to potentially conflicting with Freedom 0 in relation to the use of software, these restrictions may further directly contradict activities that schools frequently carry out: for example, schools may encourage students to start small businesses, or undertake activities which tie in directly with their academic studies, such as making and performing music (these restrictions will, naturally, impinge on both FOSS and proprietary software).

Use restrictions may also extend to restrictions on use in particular locations:

The ... child ... has the right to make use of the computer [only] at school and in their own home [U6].

Aside from FOSS compliance issues, this latter restriction seems to have the (presumably) unintended consequence that the student cannot use the computer when away from home on holiday, in the local library, or when studying with a friend at his or her house.

These restrictions also highlight another issue, to which we return: is the restriction on the use of the hardware itself, or on the use of the software? This is particularly relevant when we consider whether the schools’ contracts may be in legal conflict with the terms of the licences.

Freedom 1: The freedom to study how the program works, and change it:

Several contracts contain clauses which seek to restrain the students’ right to modify the software:

Interestingly, some of them contain a justification for this:

The programs contained in the computer’s default configuration may not be uninstalled since they are required for schoolwork [M2].

The software included in the computer’s default installation may not be modified or uninstalled. It has been carefully selected to be used for school work and teachers will assume that all pupils with a personal computer also have access to this software [M3].

Freedoms 2 and 3: the freedom to copy and redistribute software, including modified copies:

Copying and redistribution are also prohibited in a number of contracts.

As well as prohibiting copying, the following extract also prohibits installation on computers belonging to other people (distribution).

It is also prohibited to copy the software on your computer and install it on other computers (e.g. at home) unless the school has given permission to do so [D1].

This clause prohibits both modification and distribution:

The pupil may not tamper with or distribute the software that the school provides [D2].

This clause prevents distribution:

File-sharing of copyrighted materials is prohibited at all times [D3].

The following clause is interesting: it acknowledges that the student has control over his/her computer, by confirming their administrator status. However, it only allows the software to be copied onto other computers with the school’s permission: to require the school’s permission to distribute GPL software licensed to the student is a further restriction.

You are a local administrator on your computer which means that you can install software on your computer. Hence, you are also responsible for ensuring that only software with valid licenses is installed on your computer. Copying the software on your computer and installing it on other computers (e.g. at home) is also prohibited unless the school has given permission to do so [D4].

6.Implications and resolution of legal inconsistencies between FOSS licenses and school contracts

In this section we analyse the implications of the identified inconsistencies, and suggest a possible resolution. To understand some of the legal reasoning, it is important to understand the meaning of the term ‘distribute’ as it is understood in copyright law.

6.1.On ‘distribution’

It is not immediately clear that if the school loads software onto a laptop, and then lends that laptop to a student (so that the school retains ownership of the laptop), that there has been a distribution in the legal sense (so the school retains the licence itself, and is merely allowing the student to access the functionality of the software). It is also worth noting that, a number of municipalities have taken an initiative to form a separate entity to facilitate the administration of school laptops (possibly among other functions). The separate entity will generally purchase the laptops, lend them to the students, and may also be responsible for loading the software. Finally, another model involves municipalities signing a contract with a separate supplier, and that supplier installs the software and provides the laptops to the students.

Of the three models above, the final two appear to present a greater opportunity for distribution to take place (and hence the copyleft provisions of the GPL to apply).

6.2.Legal Implications of inconsistencies

The municipality which uses the following statement in its contract also provides GIMP:

Copying the software on the computer and installing it on other computers (e.g. at home) is also prohibited unless the teacher/system administrator has given written permission for it [C1].

The school itself receives the software under GPLv3 or any later version, so in order to comply with its terms when distributing the software to the student, the school has also to make the software available under that licence, crucially, without imposing any additional restrictions. Section 10, GPLv3, states:

You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License

If the school distributes GIMP to students (in the terminology of GPLv3, ‘conveys’), and in doing so, applies a restriction which seeks to limit the student’s right to copy the software:

...You may ... propagate covered works ... without conditions... (GPLv3, Section 0)

where:

...Propagation includes copying... (GPLv3, Section 2)

You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License [...further provisions allowing reinstatement in certain circumstances if the violation ceases]. (GPLv3, Section 8)

A similar example is Audacity, a sound recording and manipulation program, licensed under GPLv2. A municipality which has reported its schools using Audacity also places in its student contract the following:

The programs contained in the computer’s default configuration may not be uninstalled since they are required for schoolwork [M2].

The analysis here is similar, but not identical to the GIMP/GPLv3 analysis.

The school obtains Audacity under GPLv2. GPLv2 provides that:

If the school distributes Audacity to students, a restriction on uninstalling (modifying) Audacity will be a further restriction under the school’s licence to use Audacity. The school is therefore in breach of its own licence to use Audacity.

6.3.Partially resolved inconsistencies

In this subsection we highlight examples of clauses where contracts go some way to addressing potential inconsistencies.

Some schools only prohibit actions impinging on the four freedoms where that activity is unauthorised:

It is forbidden and a criminal act to copy software that is protected by copyright without authorisation [A1].

Some schools acknowledge that only appropriately licensed software may be used:

Some schools (try) to recognise that the model for licensing free software is different:

It is forbidden by law to copy the software, any violation will be prosecuted. Shareware and Freeware is not covered by this [C2].

Note the last sentence: we will charitably assume that the school meant ‘free software’ (in the sense understood by the Free Software Foundation) by using the term ‘Freeware’ (the specific term ‘Freeware’ is used as written in the original Swedish wording).

6.4.Resolution of inconsistencies

The most comprehensive way to resolve all inconsistencies (including those of culture) will be for the municipalities to review the contract(s) they have with the students, and ensure that:

1. 1.They correctly characterise copyright, and avoid the assumption that all copyright materials (both FOSS and other digital asset) are not able to be copied (used or distributed); and 

2. 2.They acknowledge that free and open source software can have pedagogical benefits over and above its use as an application: namely that by studying, modifying, copying and sharing the code the student can gain a deeper understanding of software, its design, development and applications; and 

3. 3.They appropriately deal with restrictions which impinge on FOSS licences, ensuring that no conflicts remain. 

Examples of recasting problematic clauses in a more acceptable fashion are presented in table 2.

Table 2: Examples of how problematic clauses can be improved.

To balance the schools’ legitimate expectation that the laptops will contain certain applications which will function as intended for pedagogical purposes, we propose that it would be acceptable to say that, notwithstanding the student’s exercise of his/her rights under FOSS, at least one instance of the application in question is present and configured in the way required by the relevant course (see suggested wording for M4 in the grid above).

These issues are not limited to software: not only is the software itself affected by these restrictions, but content (such as photographs, text, videos and music) are also copyright works which are potentially subject to licences, such as the Creative Commons suite of licences. In a similar manner to free and open source software licences, Creative Commons licences are intended to encourage reuse and redistribution. There are a number optional components of the licences, which are denoted by the tags BY, SA, ND and NC, as selected by the copyright owner.

7.On misconceptions concerning copyright

The rights holder can permit others to use the work (for example, a software company can permit its customers to use the work) by issuing a licence: it is useful to remember that a licence is defined as a permission to do something which would otherwise be illegal.

However, aside from obtaining a licence, there are several other ways in which someone can lawfully make use of a copyright work without obtaining a licence.

Further, there are many materials available on the internet that are licensed under licences which also permit and encourage use, reuse and dissemination, such as the Creative Commons suite of licences (see above).

Examples of statements which suggest that certain uses of copyright materials are never legitimate are as follows:

File sharing of copyrighted materials is prohibited at all times [D3].

Examples of materials with illegal or inappropriate content are: material protected by copyright [X1].

Copying programs and data files that are protected by copyright is not permitted [X2].

Copyright also applies to the Internet. It is therefore not allowed to copy or make use of copyrighted texts, movies, images or music pieces etc. [X3].

Unauthorized copying of software or use of unauthorized software entails personal liability towards licensors [X4].

When installing software that violates copyright law, the pupil risks a police report being filed [X6].

Occasionally, the school mangles terminology:

Copying software other than so-called freeware is not permitted. Copying other types of software is forbidden by law [X7].

Some statements confuse a number of issues:

Most software has rules for its use. Licenses for school software are handled by the computer department. It is absolutely necessary that the school can show that there are paid licenses for software used. The school takes no responsibility for unlicensed software installed by pupils [X8].

By suggesting that some software has rules for its use, it implies that some software has no rules. That’s true, but there is very little software which falls under this category (possibly software which has been released under the CC0 licence which attempts to be a dedication to the public domain, or where that fails, an extremely liberal licence removing as many restrictions as possible). Even liberal FOSS licences like BSD retain some ‘rules’, in terms of retaining a disclaimer or attribution, for example. This statement strongly suggests that proprietary paid-for licences are the norm.

Installing or copying software or other material protected by copyright law or agreement is forbidden. You are solely responsible for ensuring that the necessary licenses are available for all materials that are not directly provided by the school [X9].

It’s not clear how software can be protected by ‘agreement’ (as opposed to copyright law). The first sentence suggests that installing or copying all material protected by copyright is forbidden (even with a valid licence, or where fair use applies), whereas the second sentence, in contrast, suggests that installing such software is legitimate as long as there is an appropriate licence.

Under Swedish law, it is forbidden to ... copy software and games that are not free of charge. Explanation: What would those who make software live off if nobody pays? [X10]

This seems to suggest that free (gratis) software can be copied without restriction (which is not necessarily true), and attempts to explain the rationale behind copyright (a rationale which is refuted by the very existence of the free software referred to in the first sentence).

8.Analysis

From an analysis of our results, we make a number of observations. Concerning the provision of FOSS in Swedish Schools, we found that FOSS provided was licensed under a wide variety of different licences, the licences in question covering the spectrum of strong copyleft (e.g. GPL) through to permissive (e.g. Apache) licences. Concerning the relationship between schools’ contracts and FOSS licences, we found that there were several inconsistencies, some of which demonstrated a mismatch between the explicit contract wording and FOSS culture and others of which had legal implications. The legal implication of the inconsistencies was that the schools themselves could be in breach of the specific FOSS licence(s) applicable to the FOSS which the school provided. Our results show that the inconsistencies could be resolved by applying a simple (but strictly legalistic approach), or adopting an approach in which both FOSS culture, and the legal implications, are effectively addressed. Finally, analysis of our results shows that the contracts, together with other documents which were obtained as part of the broader study, contain a number of misconceptions as to the nature and effect of copyright and certain licensing models. From our results it seems evident that those preparing the contracts have failed even to consider certain licensing models, or whether copyright works may be lawfully used in specific circumstances without a licence.

A common thread emerges both from the statements we identified as containing misconceptions, and other supporting documents we have obtained in the course of the study. Specifically, there was no case in which a statement or assumption about copyright mistakenly suggested that the student had more freedom to use, copy, modify or distribute any software or other material than was permitted by law. On the contrary, every such statement suggested that the rights that the student had were narrower than those guaranteed by law.

One explanation of this may be that the schools were naturally conservative, and assessed that it was less risky (and simpler) to adopt a more restrictive stance in communicating to the students than was strictly necessary. However, given that the nature of many of the statements increases risk, in terms of inviting infringement of FOSS licences as discussed above, and given that many statements suggest an insufficient understanding of the licensing context and copyright law itself (for example, references to ‘freeware’) we are not convinced that the contracts, in the main, are the result of a careful risk-assessment exercise.

It may also be the case that the wording of the contracts dates from earlier governmental initiatives for increasing IT skills (before the widespread adoption of FOSS applications) which tended to favour proprietary solutions.

Similar misconceptions, biased towards the rightsholders, have permeated through to schools, and in a number of cases, documents which were obtained as part of the broader study specifically referenced the misleading paper published by the Swedish Government referred to above.

A failure to understand copyright properly, and lack of knowledge about the availability of software and materials available under FOSS and Creative Commons and similar licences may lead to several problems, including:

1. 1.Exposure of the school to liability by failing to comply with FOSS licences itself; 

2. 2.Failure of the school to take advantage of the pedagogical opportunities presented by the ability of FOSS licences to facilitate to exploration, sharing and collaboration; 

3. 3.Failure of the school to make use of materials available under free licences; and 

4. 4.Additional and unnecessary expenditure caused by different types of lock-in.91  

From our results, we observed a number of related issues arising from documents obtained as part of the broader study. Licensing issues arose not only in relation to software; licensing issues can arise in the use of associated digital assets. For example, in addition to licence conditions for the provision of software, there is the related issue of understanding font licensing.

From this analysis it may be considered that only FOSS licences are affected by misconceptions and inconsistencies. However, our results also show that licences and access rights relating to SaaS are affected.

For example, amongst contracts obtained from schools we identified that potential disputes related to students’ use of services provided in a cloud solution will be handled in a U.S. based court (California) since schools have agreed to such conditions in the contract. We would have expected this to be an issue covered in an appropriate risk assessment.

9.Discussion and conclusion

From our analysis, we have found that the existing schools contracts suggest a bias (which may be unintentional) towards the implicit promotion of proprietary software and SaaS.

Since no documented risk assessment from analysis of conditions for use of cloud services was obtained in our study, one may conjecture that the outcome of such a risk assessment of conditions for use of cloud contracts for individual students in schools and their guardians would have taken issues concerning managing disputes involving students in different jurisdictions into account. Further, we were surprised to find that we were not able to identify any documented risk assessment in our study, especially since software and services are provided (under different conditions) to young students in schools.

To fully take advantage of the learning opportunities presented by FOSS, schools must both foster an environment in which the benefits of FOSS, including the benefits of FOSS culture (providing exploration, sharing and collaboration) as well as the software’s functionality are more fully exploited. Avoiding contracts which inhibit the provision and use of FOSS is an important step towards this goal. Further, before adopting any type of SaaS or software (whether proprietary or FOSS), the acquiring bodies should follow the recommendation to undertake a risk assessment which considers the effect on the acquiring body and the users (in this case, the individual teachers and students). Since students are in a special type of relationship with the school (they are not employees of the organisation which provides the software or SaaS, but nonetheless it may, in effect, be compulsory for them to use the provided solution), the risk assessment needs to be carefully undertaken to take this relationship into account.

We take care in making our recommendations that they do not exclude or disfavour proprietary licensing. We have provided example modifications of contract clauses. The examples are constructed to demonstrate how changes are able to address the concerns relating to FOSS without discrimination either in favour of FOSS on the one hand, or proprietary solutions, on the other. From this it can be seen that the exercise of reviewing the contracts to render them both legally compliant and in accord with cultural norms which are also applicable to FOSS is not complex.

The suggested resolutions offered in this research do not require disproportionate effort to adopt in an educational context, and as well as resolving the specific legal issues, the fuller solution of recasting certain clauses in the contracts addresses cultural concerns and helps to address the (perhaps unintentional) imbalance of implicit preference for proprietary solutions.

11.Appendix

Extracts from Schools Contracts, in Swedish and the corresponding translation in to English

About the authors

Andrew Katz is a visiting researcher at the University of Skövde, Sweden and a partner at boutique law firm Moorcrofts LLP, based in England's Thames Valley. Andrew specialises in technology law and has a particular interest in open design and development. He can be contacted at andrew.katz@moorcrofts.com

Björn Lundell is a senior researcher at the University of Skövde , Sweden. He leads the Software Systems Research Group, has conducted research related to free and open source software in a number of projects, and his research is reported in over 100 publications in a variety of international journals and conferences. He can be contacted at bjorn.lundell@his.se

 

Licence and Attribution

This paper was published in the International Free and Open Source Software Law Review, Volume 8, Issue 1 (May 2016). It originally appeared online at http://www.ifosslr.org.

This article should be cited as follows:

Katz, A., Lundell, B. and Gamalielsson, J. (2016) ‘Software, copyright and the learning environment: an analysis of the IT contracts Swedish schools impose on their students and the implications for FOSS’, International Free and Open Source Software Law Review, 8(1), pp 1 – 28
DOI: 10.5033/ifosslr.v8v1.108

Copyright © 2016 Andrew Katz, Björn Lundell, Jonas Gamalie

This article is licensed under a Creative Commons International 4.0 licence, attribution, CC-BY-4.0 available at
https://creativecommons.org/licenses/by/4.0/

 

 

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6González-Martínez, J. A., Bote-Lorenzo, M. L., Gómez-Sánchez, E. and Cano-Parra, R. (2015) Cloud computing and education: A state-of-the-art survey, Computers & Education, Vol. 80, pp. 132-151. http://dx.doi.org/10.1016/j.compedu.2014.08.017

7Under Swedish law, the students, if they are under the age of 18, cannot be legally bound to the agreements. Breach of them is likely to be regarded as a breach of school rules rather than a legal matter. This does have some impact on 'further restrictions' which are outlawed by GPLv2 and GPLv3 licences – see below. In some cases, parents or guardians are required to sign, in which case, the contracts would be legally binding on those parents or guardians (assuming they themselves are adults).

8Lundell, B., Lings, B. and Lindqvist, E. (2010) Open source in Swedish companies: where are we?, Information Systems Journal, Vol. 20(6), pp. 519-535. http://dx.doi.org/10.1111/j.1365-2575.2010.00348.x

9Lundell et al. (2010) ibid., at page 529.

10Hatakka, M., Andersson, A. and Gronlund, Å. (2013) Students’ use of one to one laptops: a capability approach analysis, Information Technology & People, Vol. 26(1), pp. 94-112. http://dx.doi.org/10.1108/09593841311307169

11Hatakka et al. (2013) ibid.

12Hatakka et al. (2013) ibid., at page 108.

13Regeringskansliet (2005) From an IT policy for society to a policy for the information society: Summary of the Swedish Government Bill 2004/05:175, Ministry of Industry, Employment and Communications, Sweden, Regeringskansliet, September.

14Odell, M. (2009) Innovations for Europe: Increasing Public Value, Public Speech at: ‘European Public Sector Award’, Maastricht, 5 Nov.

15Skolinspektionen (2011) Avgifter i skolan, Informationsblad, Skolinspektionen, 7 Dec., http://www.skolinspektionen.se/Documents/vagledning/infoblad-avgifter.pdf

16Fleischer, H. (2012) ibid., at page 120.

17Fleischer, H. (2012) ibid., at page 120.

18See page 45 in: Andersson, A., Hatakka, M., Grönlund, Å and Wiklund, M. (2014) Reclaiming the students - coping with social media in 1:1 schools, Learning, Media and Technology, Vol. 39(1), pp. 37-52. http://dx.doi.org/10.1080/17439884.2012.756518

19See page 20 in: E-delegationen (2010) Myndigheters användning av sociala medier, Riktlinjer från E-delegationen, Version 1.0, 30 December (in Swedish),
http://www.edelegationen.se/Documents/Vagledningar%20mm/Riktlinjer_sociala_medier_v1_0.pdf

20SOU (2010) Så enkelt som möjligt för så många som möjligt: Under konstruktion – framtidens e-förvaltning, Betänkande från E-delegationen, Statens Offentliga Utredningar, SOU 2010:62, Stockholm, ISBN 978-91-38-23440-2.

21See footnote 7 above.

22It is not clear what is supposed to happen if a student only has one guardian.

23See below for a brief introduction to the genesis of the four freedoms.

24Computer Programs directive 2009/24/EC

25Copyright Directive 2001/29/EC

26‘Code’, meaning software code, is traditionally divided into source code and object code. The source code is the human-readable text in which software is written, modified and debugged. In a compiled computer language (like C++), the source code is converted (on the programmer's computer) into the software the computer can run – the object code – using a suite of software called a toolchain, a significant component of which is the compiler. Some computer languages (such as Python and JavaScript) are 'interpreted' meaning that the source code can be run directly on the end-user's computer without being compiled, provided that there is an appropriate interpreter installed on that computer (almost all web browsers will have a javascript interpreter installed, for example). 'Executable' means the code which can run on the computer – which may be object code or source code depending on the language. The distinction between source and object is significant in terms of FOSS licensing because many licences make the distinction (and were drafted before interpreted languages became common, which in itself creates a raft of issues outside the scope of this paper).

27As an organisation founded by a computer software engineer, the Free Software Foundation favours starting the list with zero.

28Open Source Initiative: http://opensource.org/osd-annotated

29The word ‘distribute’ has a specific meaning in copyright law. This is discussed below.

30Copyleft is a play on the word 'copyright' and is a mechanism, dependent on copyright law to work, which makes it a condition of a copyright licence for the licensee, on distributing copyleft software or any modifications to it, to make the source code to the software and modifications available under the same licence.

31Or ‘viral’ or ‘cancerous’

32The openness of software is dependent on the licence, not on the code. Thus a person can receive the Apache Web Server under the Apache 2.0 License (which is a permissive licence), as FOSS, and (because the Apache licence allows this) pass exactly the same code on to a third party under a different, non-FOSS licence. In the hands of the final recipient, the software is not FOSS, even though it's exactly the same code which was received under a FOSS licence. Copyleft licences are designed to prevent this from happening.

33‘distribute’ is a term of art in copyright law, and its significance is covered below

34There are three different mechanisms varying from school to school: sometimes the student signs, sometimes the guardian signs, and sometimes both. If the student is under 18 years, there is a question (not investigated in this paper) under Swedish law of the enforceability of the contract.

35GPLv3, section 10 (part)

36See GPLv3 section 7, para 4. This is not explicitly stated in GPLv2, but is implied.

37GPLv3, section 8

38The licences listed are those applicable to the software reported to be used at the time the data was collected. Some projects may have relicensed in the interim and we have no data about whether the schools are using the relicensed versions.

39That is not to say that the school may not otherwise be in breach of licence terms: for example, by failing to provide the appropriate notices and attribution required by the licence (such as the NOTICE file required to be provided with distributions of Apache software). This issue is outside the scope of this paper. We further assume that the school is not amending the software prior to distribution – for example, it is distributing the installation package or the installed executables of Firefox as provided by Mozilla.

40Mozilla Public License v2 falls within a subset of copyleft licences which treat source code and object code differently: source code files are subject to full copyleft, and if distributed, must be distributed under MPLv2 (or, in some cases, another copyleft licence). The executable object code files, however, may be distributed under any licence and use may therefore be restricted. Anyone receiving the object code is entitled to receive a copy of the source (which must be under the original MPLv2 or, optionally, a similar compatible licence).

41Eclipse Public License v1 is similar to MPLv2 in that the object code may be relicensed under a different licence, but the corresponding source must be made available under the original EPLv1.

42http://www.oreilly.com/openbook/freedom/ch01.html

43In Stallman’s terminology, a ‘hacker’ is a programming expert who takes a playful, skilled and often oblique approach to solving software problems, possibly in a way that the original author never intended or envisaged, but it has no negative connotations associated with unauthorised access to systems, vandalism or copyright infringement. The term ‘hack’ is construed accordingly.

44So, a permissive, or ‘academic’ licence, described above, encapsulates the idea of granting the widest possible rights to recipients of the software, to use, modify and share the software, in tune with these norms.

45GPLv3, section 8

46Computer Programs directive 2009/24/EC, Art. 4.1(a)

47Computer Programs directive 2009/24/EC, Art. 4.1(b)

48Computer Programs directive 2009/24/EC, Art. 4.1(c)

49There is an argument that if software is run on a SaaS basis, it may be being ‘communicated to the public’. ‘Communication to the public’, while a restricted act under 2001/29/EC (Copyright Directive) is not specifically referred to in the Computer Programs Directive. van Eechoud (Harmonizing European Copyright Law: the Challenges of Better Lawmaking) argues that, by analogy with the Database Directive, the exclusive right of controlling communication to the public is not applicable to software. However, it will be applicable to other forms of copyright work.

50Theoretically, someone could take a copy of software they had received (on a CD for example) and redistribute it by passing the physical data carrier on: in this case, no copying will have taken place. In practice, this is becoming an increasingly rare mode of distributing software.

51Copyright Directive Art. 3 2001/29/EC Art 3

52[U1] is a key to the relevant entry in the grid in the appendix, containing the original Swedish. Each contract extract in this paper is accompanied by a corresponding key.

53At the time of writing the paper, the municipality reported only making proprietary software available. However, this does not mean that the relevant schools may not seek to provide FOSS under these rules in the future. Note also that, as in the English translation, the original Swedish is equally ambiguous as to whether this means ‘outside the context of school-related activities’ or ‘outside the physical school premises’. We assume, from the context, that, since the students are expected to take the laptops home, that the former interpretation is intended.

54We do not regard a restriction on installation as a restriction on the software (so of relevance to FOSS licensing and the four freedoms), but as a restriction on hardware. Uninstallation, however, does modify the software, and is therefore a relevant restriction.

55With the exception of the Affero GPL licences, which expand on the definition of ‘distribute’ somewhat. None of the schools reported providing any software released under Affero GPL.

56This has been characterised by some as a flaw in the GPL, and described as the ‘ASP loophole’, [https://www.fsf.org/blogs/licensing/2007-03-29-gplv3-saas] hence the introduction of the Affero GPL. Miriam Ballhausen Ballhausen, 2014 (http://www.ifosslr.org/ifosslr/article/view/103) has argued that under German Law, use of GPL code, even in an ASP model, could trigger the requirement to release the source. We do not consider that argument further, although initial discussions with Swedish counsel suggest it would not apply under Swedish Law.

57This analysis is slightly over-simplified: many SaaS applications do distribute portions of code, often JavaScript, for running on the user’s computer, in the browser. To the extent that such distribution occurs, the licensor would have to comply with the relevant clauses of the underlying software licence.

58There are European Court Cases which suggest that distribution of software can only occur when there is an accompanying transfer of a physical item: Peek & Cloppenburg KG v Cassina SpA Case C-456/06 . This doctrine does pose a difficulty for software licensing within virtual machines (VMs) and when downloaded. This issue is outside the scope of this paper, but see also UsedSoft GmbH v Oracle International Corp (C-128/11)

59It is clear from the examples of further restrictions given by the Free Software Foundation, that they did not solely have enforceable contractual obligations in mind. http://www.gnu.org/licenses/gpl-faq.html

60Proprietary software provided by Adobe Systems Incorporated

61Since GPLv3 is the current version of GPL, the analysis can, at the date of writing, only be undertaken under GPLv3

62This does not adversely affect any rights the student receives: GPLv3, section 7.

63GPLv2 Section 6

64This does not admit that, in theory, it is possible to use software which is covered by a copyright exception or is in the public domain, but see footnotes 73 and 76.

65A similar mechanism is employed by the Open Invention Network: see section 5.4 of its license agreement: http://www.openinventionnetwork.com/joining-oin/oin-license-agreement/

66But see footnote 56

67The current latest release of the Creative Commons suite is 4.0. See https://creativecommons.org/licenses/by-nd/4.0/ for more information.

68Prohibiting the use of software for commercial purposes is a breach of Freedom 0 – the freedom to run the program as you wish, for any purpose. Further, it’s not clear what ‘commercial purposes’ means.

69It is theoretically possible for software to be licensed under a Creative Commons Licence – and for non-software content to be licensed under a FOSS licence, but this is not recommended, not least because the structure and terminology contained in those licences is not appropriate when applied to an unintended medium. Having said that, the Creative Commons foundation has announced that materials licensed under CC-BY-SA 4.0 may now be relicensed under GPLv3 (but not vice versa): http://creativecommons.org/weblog/entry/46186

70There also exist additional rights, such as moral rights, which are outside the scope of this paper.

712009/24/EC

72If more than 70 years have elapsed since the death of the author, the work will have entered the public domain, and copyright law will impose no restrictions at all.

73Swedish law does not have a concept of ‘fair use’ as such, but the term is used as shorthand for the bundle of exceptions which exist in certain circumstances, such as the right granted to cite and quote materials in an academic context, provided that appropriate attribution is given. See Chapter 2 of Law 729 of 1960 on copyright in literary and artistic works (Kap 2, Lag (1960:729) om upphovsrätt till litterära och konstnärliga verk).

74Copyright infringement may be a criminal offence in Sweden, subject to some exceptions (for example copying software for private use if the original has not been used in a commercial or public sector context).

75Although this statement [C2] also goes on to exclude ‘Freeware’ and ‘Shareware’ from this requirement.

76...and the public domain, but the reality is that, owing to the length of the copyright term and the relatively recent invention of stored-program computing, it is unlikely that any software is in the public domain– at least in jurisdictions like Sweden where copyright works cannot be dedicated to the public domain (although the economic rights can be waived).

77Document published by the Swedish Government, Ministry of Justice: Regeringskansliet (2005) Upphovsrätten vid nedladdning och annan kopiering av musik, film och bilder, Justitiedepartementet, Sweden.

78Swedish original: Man får inte ta någon annans filmer, musik, texter eller bilder och lägga ut på Internet utan tillstånd av upphovsmannen. Detta betyder att man inte får dela med sig av sin musik - eller filmsamling på Internet, t.ex. via ett fildelningsprogram. Däremot får man förstås lägga ut musik, bilder eller annat som man själv har skapat

79See, for example, Project Gutenberg: https://www.gutenberg.org/, with the warning that the rules under which works enter the public domain vary significantly from jurisdiction to jurisdiction, so it is not automatically safe to assume that works on that site are free of copyright in your jurisdiction. In a Nordic context, project Runeberg aims to make available classic Scandinavian literature on a similar basis to Project Gutenberg http://runeberg.org/

80e.g. https://www.gutenberg.org/files/48052/48052-h/48052-h.htm

81e.g. http://www.gutenberg.org/cache/epub/2264/pg2264-images.html

82It would be possible to strain the interpretation of 'someone else's...text' so that it meant 'text the copyright of which is owned by someone else', which would exclude works in the public domain. However, an instinctive reading of ‘someone else’s...text’ does not immediately exclude Strindberg and Shakespeare from that category. Given that this is a document intended to clarify the public's rights, the phrasing is misleading.

8313 October 2015

84Under various Creative Commons licences, or public domain dedication or notices: https://www.flickr.com/creativecommons/

85https://en.wikipedia.org/wiki/Getty_Images

86e.g. Ubuntu: http://www.ubuntu.com/download/alternative-downloads

87https://en.wikipedia.org/wiki/BBC_iPlayer

88It’s misleading to call it a file sharing site, as it never hosted the files themselves.

89See page 391 in: Fung, W. M. J. and Lakhani, A. (2013) Combatting peer-to-peer file sharing of copyrighted material via anti-piracy laws: Issues, trends, and solutions, Computer Law & Security Review, Vol. 29(4), pp. 382-402. http://dx.doi.org/10.1016/j.clsr.2013.05.006

90In the Swedish schools system, this means the year in which children turn 12.

91Lundell, B. (2012) Why do we need Open Standards?, In Orviska, M. and Jakobs, K. (Eds.) Proceedings 17th EURAS Annual Standardisation Conference ‘Standards and Innovation’, The EURAS Baard Series, Aachen, ISBN: 978-3-86130-337-4, pp. 227-240.

92Style guide for an organisation obtained during data collection.

93See page 20 in: E-delegationen (2010) ibid.

94See page 99 in: Hatakka et al. (2012) ibid.

95BCG (2015) Launching a New Digital Agenda: How Sweden Can become the global leader in Digitization and Technology, The Boston Consulting Group, June. http://www.bcg.dk/documents/file191290.pdf