In letter to the EU, open source bodies say the Cyber ​​Resilience Act could have a “chilling effect” on software development

More than a dozen open source industry bodies have published an open letter calling on the European Commission (EC) to reconsider aspects of its proposed Cyber ​​Resilience Act (CRA), saying it will have a “chilling effect”. in the development of open source software if it is implemented in its current form.

Thirteen organizations, including the Eclipse Foundation, Linux Europe Foundation, and the Open Source Initiative (OSI), also point out that the Cyber ​​Resilience Act, as written, “poses unnecessary economic and technological risk to the EU.”

The purpose of the letter, it seems, is for the open source community to get more input into the evolution of the CRA as it progresses through the European Parliament.

The letter says:

We are writing to express our concern that the broader open source community has been underrepresented during the development of the Cyber ​​Resilience Act to date, and we want to ensure that this is resolved through the legislature process by providing our support. Open source software represents more than 70% of the software present in products with digital elements in Europe. However, our community does not have the benefit of an established relationship with the co-legislators.

The software and other technical artifacts produced by us are unprecedented in their contribution to the technology industry along with our digital sovereignty and associated economic benefits on many levels. With the CRA, more than 70% of software in Europe is about to be regulated without in-depth consultation.

early stages

First introduced in a September draft, the Cyber ​​Resilience Act strives to codify into law cybersecurity best practices for connected products sold in the European Union. The legislation is designed to strengthen manufacturers of Internet-connected hardware and software, for example those that make Internet-enabled toys or “smart” refrigerators, to ensure that their products are robust and keep up with the latest software updates. security.

Sanctions for non-compliance can include fines of up to €15 million, or 2.5% of global turnover.

While the Cyber ​​Resiliency Act is still in its early stages, with nothing becoming actual law in the immediate future, the legislation has already set off some alarm bells in the open source world. Open source components are estimated to make up 70-90% of most modern software products, from web browsers to servers; however, many open source projects are developed by individuals or small teams in their spare time. Therefore, the CRA’s intentions to extend the CE marking self-certification system to software, whereby all software developers will have to testify that their software is fit, could stifle open source development for fear of contravention. the new legislation.

The bill as it stands does, in fact, go some way to addressing some of these concerns. It says (emphasis ours):

In order not to hamper innovation or research, Free and open source software developed or provided outside of the course of a commercial activity must not be covered by this Regulation. This is in particular the case for software, including its source code and modified versions, that is openly shared and freely accessible, usable, modifiable and redistributable. In the context of software, a business can be characterized not only by the charging of a price for a product, but also by the charging of a price for technical support services, for the provision of a software platform through the which the manufacturer monetizes other services, or for the use of personal data for reasons other than exclusively to improve the security, compatibility or interoperability of the software.

However, the language as it stands has raised concerns in the open source world. While the text seems to exempt non-commercial open source software from its scope, trying to define what is meant by “non-commercial” is not an easy task. As GitHub’s director of policy Mike Linksvayer noted in a blog post last month, developers often “create and maintain open source code in a variety of paid and non-paid contexts,” which can include enterprises, governments, organizations non-profits, academics and more.

“Non-profit organizations offer paid consulting services as technical support for their open source software,” Linksvayer wrote. “And increasingly, developers are receiving sponsorships, grants, and other forms of financial support for their efforts. These nuances require a different exemption for open source.”

So really, it all comes down to language: clarifying that open source software developers will not be held responsible for any security bugs of a later product that uses a particular component.

“The Cyber ​​Resilience Act can be improved by focusing on finished products,” added Linksvayer. “If open source software is not offered as a paid or monetized product, it should be exempt.”

“Chilling effect”

A growing number of proposed regulations in Europe are raising concerns across the tech landscape, with open source software being a recurring theme. In fact, the issues surrounding the CRA are somewhat reminiscent of those facing the upcoming EU AI Law, which seeks to regulate AI applications based on perceived risks. GitHub CEO Thomas Dohmke recently opined that open source software developers should be exempted from the scope of that legislation when it goes into effect, as it could create onerous legal liability for General Purpose AI (GPAI) systems. and give greater power to the well-financed big guys. technology companies

As for the Cyber ​​Resiliency Act, the message from the open source software community is pretty clear: they feel their voices are not being heard, and if no changes are made to the proposed legislation, it could have a big long-term impact. .

“Our voices and experience must be heard and given the opportunity to inform the decisions of public authorities,” the letter says. “If the CRA is, in fact, implemented as written, it will have a chilling effect on open source software development as a global effort, with the net effect of undermining the EU’s expressed goals for innovation, digital sovereignty and future prosperity. ”

The full list of signatories includes: The Eclipse Foundation; Linux Europe Foundation; Open Source Initiative (OSI); OpenForum Europe (OFE); Association of Portuguese Open Source Software Companies (ESOP); CNLL; The Document Foundation (TDF); European Associations of Open Source Software Companies (APELL); COSS – Finnish Center for Open Systems and Solutions; Open Source Business Alliance (OSBA); Open Solutions and Systems (COSS); OW2 and the Software Heritage Foundation.

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