Are Free Software developers at risk?

Free Software is everywhere, with studies estimating that it is present in about 96% of the applications that we use. But what are the responsibilities and liabilities of the Free Software developers? A potential threat to Free Software developers looms in the form of an ongoing lawsuit in the UK involving Bitcoin and its core developers.

Bitcoin (BTC) is a cryptocurrency created in 2009 that operates under the MIT Free Software licence. After its creator disappeared, a group of software developers continued to develop Bitcoin independently. Currently, Dr. Craig Wright, who claimed to be the creator of Bitcoin, is suing the Bitcoin developers in the UK courts through his company, Tulip Trading Limited (Tulip). This company claims to have lost £3 billion worth of bitcoin due to a hack that compromised the private keys, resulting in the loss of access to the funds. In this lawsuit Tulip is demanding that the Bitcoin developers provide access to the lost Bitcoin, arguing that the developers have a legal obligation to provide access or offer equitable compensation or damages.

As such, this legal case is currently drawing attention to the issue of Free Software developers' liability, in particular the extent to which they are responsible to their users.

UK High Court’s opinion: Developers have no legal duties or a duty of care in this case, but they do have certain duties in some specific situations.

The High Court considered whether software developers and controllers of digital asset networks bear legal obligations to cryptocurrency holders who rely on their software. The court ruled in favour of the developers, stating that as a "fluctuating body of individuals", the developers could not realistically maintain ongoing obligations. The court rejected the notion that developers should be compelled to provide software updates upon the request of digital asset owners, emphasising the absence of any explicit commitment or assurance by the developers. Regarding the alleged tortious duties, the Court determined that the developers did not owe Tulip a duty of care, highlighting that Tulip's loss was solely economic.

A duty of care is a legal responsibility imposed on an individual that requires them to follow a level of reasonable care when conducting any acts that could endanger others.

However, the court recognized that, in certain cases, software developers have specific duties. For instance, developers must exercise caution to avoid harming users' interests and may have an obligation to remedy bugs or faults in the system.

The court also acknowledged that the disclaimer in the MIT license, broadly disclaims liability for software issues. However, the court did not confirm whether this disclaimer absolved BTC Network developers of responsibility for its operation. This is because:

• the MIT disclaimer has never been litigated, and the court is free to decide and set precedent.
• such disclaimers are not easily found when using software.

UK Court of Appeal’s opinion: Arguable that developers owe some fiduciary legal duties

On appeal, the Court of Appeal (the second highest court in the UK) overturned the High Court's decision, concluding that it was at least arguable that the developers owe fiduciary legal duties to cryptocurrency owners. The court noted the exclusive control of the Bitcoin software code by a small group of developers and their decision-making role on behalf of all Bitcoin owners, resembling fiduciary responsibilities. The court also noted that only a handful of developers have exclusive access to the Bitcoin software code on GitHub. For example, if a Bitcoin owner notices a bug, he or she is unable to fix it because only the developers with access can do so, and they have to agree to do so. In the eyes of the court, this is a clear exercise of the de facto power of the developers. The court completely missed the point that no one can prevent others from applying a fix to the code - that is part of the fundamental freedom that comes with Free Software: if the developers of a particular repository refuse to apply needed fixes, the community can fork the project and bypass those developers.

Furthermore, code is speech. Freedom of expression includes expression in the language of computer code as well. Imposing disproportionate duties on Free Software developers forces them to change their code, and therefore infringes on their freedom of expression. The court also observed that the developers have a positive duty to fix bugs and code errors and a negative duty to refrain from acting in their own self-interest.

In summary, Tulip's case raises significant legal questions, and according to the latest developments, Tulip must prove ownership of the alleged stolen bitcoins in a preliminary trial.

Chilling effect on Free Software development?

Common law in the UK (and other countries) is developed through court decisions and precedents. When a court makes a decision in a case, it establishes a legal precedent that serves as a guide for future cases with similar circumstances. Lower courts generally have to follow the precedents set by the higher courts. Courts in common law countries tend to also borrow concepts and precedents from other countries if there is no local precedent available. The law and legal scholarship around Free Software developers’ duties is underdeveloped and almost non-existent. If Tulip succeeds in their case, it may set an international legal precedent, opening the floodgates to litigation. This means that any user of Free Software could potentially sue developers for alleged breaches of duty.

A fiduciary duty, as claimed by Tulip, refers to the legal duty of a person or entity to act in the best interests of another party, typically referred to as the beneficiary or principal. This duty is characterized by trust, confidence, and reliance on the fiduciary to act ethically and responsibly on behalf of the beneficiary. Fiduciary duties exist in only very specific relationships, like those of trustees, solicitors, agents, partners, and company directors. Attaching these duties to Free Software developers is unprecedented and disproportionate.

Free Software production, a catalyst for technological innovation, relies on voluntary contributions. Imposing fiduciary duties (or any disproportionate duties) on developers could deter them from participating in Free Software projects, fearing legal repercussions. This could lead to a chilling effect, where developers opt for more restrictive licensing, or refrain from sharing their code altogether, or release the software only in jurisdictions where there are no duties out of fear of litigation. The results of such an effect would be disastrous; stifling innovation and potentially halting the progress of specific Free Software endeavours.

In essence, if the court rules in favour of Tulip, it can have far-reaching consequences that can be detrimental to the Free Software developers in the following ways:

1. Courts may impose an active duty on Free Software developers to fix what the courts deem to be problematic issues.
2. In future courts may impose an active duty on Free Software developers to not cause any bugs that impact users. This can potentially expose the developers to litigation for just letting through a bug or failing to spot a bug.
3. Courts may also impose obligations on Free Software developers that require them to compromise the cryptographic integrity guarantees of the software. This could involve mandates to weaken encryption algorithms or provide backdoor access, directly undermining the security measures designed to protect user privacy and data confidentiality. Such orders would not only compromise the effectiveness of encryption software but also the tools such as secure file deletion or data recovery.

Free Software development thrives on the collaborative efforts of developers worldwide, continually evolving. The developers’ autonomy inherent in Free Software must not be jeopardized by the fear of unjust litigation. FSFE remains vigilant in safeguarding against threats to developer autonomy that could stifle innovation. In the light of these concerns, we call upon the developers to persist in their invaluable work without fear.

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DMA and Device Neutrality +++ CRA & PLD vote +++ EU elections: get active

Last month, the DMA came into force and we launched a website about Device Neutrality, the EU parliament voted the CRA and the PLD, and we released a guide to get active for the upcoming EU elections. Check out the videos from the devrooms we joined at FOSDEM!

• Let’s make Device Neutrality a reality in Europe!
• CRA & PLD vote in the European Parliament
• Watch the recordings from FOSDEM!
• Take action: get active for the elections in the European Union!
• News from ZOOOM
• Past and upcoming events

Let’s make Device Neutrality a reality in Europe!

Last 7 March, the Digital Markets Act came into force in the European Union. This milestone marks the start of Device Neutrality as a tangible reality in the European Union. The FSFE acknowledges the new legislation, but we want to remark that this is only the first step, and further commitment is necessary! Read this article to dive deeper.

To raise public awareness concerning Device Neutrality, the FSFE has launched deviceneutrality.org. This site points to in-depth insights about Device Neutrality and Free Software, downloadable promotional material, and ways to spread the word. Check it out!

CRA & PLD vote in the European Parliament

The European Parliament voted on the Cyber Resilience Act (CRA) and the Product Liability Directive (PLD) on 12 March. Regarding the introduction of liability rules for software, a broad exception for Free Software was made, so that after long and intense debates individual developers and non-profit work are safeguarded. We will therefore closely monitor the implementation and whether Software Freedom is protected accordingly.

Read the FSFE’s full statement

Watch the recordings from FOSDEM!

Did you miss FOSDEM 2024, or did you not have the chance to participate in the Devrooms we took part in? We’ve got you covered with their recordings.

Once again we co-organised our now well-known Legal & Policy Issues Devroom. The discussions in this track covered important issues for Software Freedom, such as CRA, RHEL, and GPL termination. Furthermore, we helped to organise a devroom about Free Software in the European legislative landscape.

Take action: get active for the elections in the European Union!

European citizens will hit the ballot boxes from 6 to 9 June 2024 to choose their next representatives in the European Parliament. As the campaign heats up, it is important to get active and ensure Software Freedom is part of the larger political debate.

How can you do this? Find practical advice on how to advocate for Free Software in the coming months! In order to reach as many European Citizens as possible, your help with translating the guide would be incredibly valuable!

News from ZOOOM

As part of its involvement with the Zooom consortium, the FSFE has produced four chapters in two comprehensive reports on Free Software legal and business topics. These reports deal with a broad range of topics, and provide empirical data on Free Software topics in Europe in relation to critical technologies, such as AI. The FSFE also contributed to a study on how the term “open” has been improperly used to refer to AI projects that are not Free Software.

Past and upcoming events

During the the weekend of 16 and 17 March, some of our staff together with volunteers went to the Chemnitzer Linux-Tage! We were very happy to meet and chat with so many of you about so many topics related to Software Freedom. We also took the stage to talk about Youth Hacking 4 Freedom!

“Ada & Zangemann - A Tale of Software, Skateboards, and Raspberry Ice Cream” arrives in Belgium! Attend the reading taking place in Brussels on Thursday 4 April at 15:00!

On 15 and 16 April, foss-north is taking place at Chalmers Conference Centre, Gothenburg, Sweden. The event will be run on-site, in-person, in a physical venue. Learn more

Quote of the month

The solutions of tomorrow must be built using public code. This is not only to ensure a sound use of public money, but also to promote freedom of choice and to avoid vendor lock-in.

~ EU Commissioner Johannes Hanh, talking about “Public Money, Public Code!”

Contribute to our Newsletter

We would love to hear from you. If you have any thoughts, pictures, or news to share, please send them to us at newsletter@fsfe.org. You can also support us, contribute to our work, and join our community. We would like to thank our community and all the volunteers, supporters, and donors who make our work possible, with a special mention to our translators who make it possible for you to read this newsletter in your mother tongue.

Your editors, Ana and Tommi

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Let’s advocate together for Free Software in the European Elections

European citizens will hit the ballot boxes from 6 to 9 June 2024 to choose their next representatives in the European Parliament. As the campaign heats up, it is important to get active and ensure Software Freedom is part of the larger political debate. How can you do this? Find practical advice on how to advocate for Free Software in the coming months!

Every five years, Europeans citizens elect their representatives to the European Parliament, the EU's sole directly elected institution. These representatives shape new EU legislation and how taxpayers' money is spent. The electoral campaign has started and candidates across Europe are organising and taking part in different events to listen to citizens’ demands. Electoral programs are often written during these events, together with your input. Get active and ask your candidates their stance on Free Software (also known as Open Source).

Get to know your candidates and their events

Identifying your local EU candidates is the first step to starting the debate. You can search political parties’ and institutional websites to find the candidates running for election in your area. If elected, they are the ones who represent you based on your area of residence and have more direct contact with their constituents. In the run-up to the elections, round-table discussions, election booths and debates with candidates will be held. To find those, do not forget to check the candidates’ social network accounts, too.

Additionally, seek recommendations from local Free Software advocacy groups or communities, as they might take part in or organise meetings related to the European elections.

Talk to your candidates

Once you found a way to talk to your candidates, you can kick off the conversation starting with the basics. If you cannot find any event around your area, you can directly ask for a meeting with the candidates, or you can propose local groups and communities to organise one! Ask candidates if they know what Free Software is and tell them why it is important for a democratic society. If you cannot go to an event or meet the candidate in person, you can also write an email to your local candidate and ask their position on Free Software.

Free Software is an important topic when it comes to public administrations. You can use the following arguments to explain why:

• Free Software, thanks to the four freedoms, allows public administrations to take control of their digital infrastructure. Using Free Software in public administrations is a prerequisite for becoming digitally sovereign and crucial for a resilient digital society, especially in times of crisis.
• Free Software licenses help public administrations to escape dependency and vendor lock-in, which at a high cost hinders competition and innovation.
• Free Software ensures that the source code is accessible so that security holes can be fixed without depending on one service provider.

Mention the FSFE’s “Public Money? Public Code!” initiative and ask the candidates a position on the topic. Make their answers public to help other people in the EU understand the candidates’ positions on Free Software.

You can also find informative material on Free Software, “Public Money? Public Code!” and other relevant topics on our website. All the material can be printed or requested for free through our request form. This material can be useful to get a basic and simple understanding of Free Software and can be easily shared. Make use of it!

Find more advice, a mail template and a toot template in this new page on how to get active during electoral campaigns!

Be active on social media

Do you want to use social media platforms to amplify your message and engage a wider audience? Share informative content about Free Software, emphasise the importance of open standards, and advocate for policies prioritising digital freedoms. Use hashtags like #publiccode to join discussions and encourage others to do the same, pointing out Free Software's significance for shaping our democratic society in the digital age.

Moreover, you can use our share-pic generator and share why you support our “Public Money? Public Code!” campaign. Post your share-pic on social media and encourage others to do the same.

You can also follow us on social media and contribute to spreading the word during these crucial months that will shape Europe for the next years.

Help us continue our work

Our team and volunteers are working daily with decision-makers, advocating for Free Software on all levels. Your support enables us to continue our work, protecting our community and engaging with legislators to shape policies that uphold Free Software principles. Please consider becoming an FSFE supporter and making a donation. Thank you!

Become a supporter!

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EU policy meets Free Software in FOSDEM

The FSFE helped to organise a FOSDEM devroom about Free Software in the European legislative landscape. It was the first time that this devroom was held and got a lot of interest from the community, that engaged in fruitful discussions about current EU policy topics.

During the last edition of FOSDEM, an EU policy devroom was organised and FSFE helped to co-organise it! On the second day of the conference, some of our staff and volunteers took part in this devroom, which was packed, and where the community had the opportunity to discuss current policy topics together with European lawmakers.

The devroom kicked off the day with a discussion on the new liability rules for Free Software. This turned into a broader debate on how the Free Software community can and should engage in the decision making process. Alexander Sander, FSFE's Senior Policy Consultant, moderated the session on "FOSS Policy Engagement", including a panel and a fishbowl discussion. After that, Lina Ceballos, FSFE Policy Project Manager, opened the session on “Public Services interoperability” and the Interoperable Europe Act, followed by a discussion between decision makers and the Community on the challenges and opportunities that the Interoperable Europe Act means for the Free Software community. Finally, Lucas Lasota, FSFE Programme Manager, together with our Netherlands Coordinator Niko Rikken, highlighted the main challenges for Router Freedom and Device Neutrality in Europe.

As this was the first time that we co organised this devroom, we are particularly interested in your feedback when it comes to the idea itself but also on the different format which was used to discuss those topics. We also want to thanks to the other devroom organizers: Simon Phipps, Enzo Ribagnac, Maarten Aertsen, Axel Thévernet, Deb Bryant, and Gijs Hillenius.

EU policy devroom

CRA & PLD: Free Software in the European legislative landscape Free Software policy engagement: Free Software in the European legislative landscape Public Services Interoperability : Free Software in the European legislative landscape Digital Services Interoperability: Free Software in the European legislative landscape

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Looking back: Software freedom discussion @FOSDEM

Once again we co-organised our now well-known Legal & Policy Issues Devroom during FOSDEM 2024. The discussions in this track covered important issues for Software Freedom, such as CRA, RHEL, GPL termination, where discussed. Thanks to everyone who participated in it!

The Legal and Policy Issues Devroom took place on the first day of FOSDEM in one of the main rooms, which was packed throughout the track. In fact, this was the 12th edition and FSFE’s fourth year of co-organising in this devroom.

Together with our co-hosts this devroom once again focused on current political and legal challenges we face in the world of software freedom. These included discussions on recent licencing practices around RHEL and CentOS, questions on how to deal with with trademark issues, GPL termination under German law, discussion around GPLv3/AGPLv3 Section 7 and the new Swiss law on the procurement of Free Software.

id you miss the talks or do you want to watch them again? We have complied all the talks from this devroom in this video

As always the dev room ended with a discussion that brought all the organisers on stage: Karen Sandler and Bradley Kuhn from the Software Freedom Conservancy, Tom Marble, and Alexander Sander and Matthias Kirschner from FSFE talked about the most important issues for software freedom, touching on the Liability discussion in Europe around the Cyber Resilience Act, Product Liability Directive but also the AI Act, as well as discussing current cases and campaigns.

“Once again, we were able to bring exciting and pressing issues related to the law and politics of software freedom to the stage and discuss them with the FOSDEM community, raising awareness of how these issues intersect strongly with technological advances, and therefore why it is important to address and debate them”.

Alexander Sander, FSFE's Senior Policy Consultant and one of the devroom organizers

Last but not least, we want to thank you to everyone who take part of this devroom, from the amazing speakers to the participants who engaged in fruitful discussions to the FOSDEM organizers. We cannot wait to see you next year! And if you have any suggestion about topics and speakers, please do not hesitate to contact us!

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