Alexander Savelyev’s research while affiliated with National Research University Higher School of Economics and other places

The paper analyzes legal issues associated with the application of existing contract law provisions to so-called Smart contracts, defined in the paper as ‘agreements existing in the form of software code implemented on the Blockchain platform, which ensures the autonomy and self-executive nature of Smart contract terms based on a predetermined set of factors’. The paper consists of several sections. In the second section, the paper outlines the peculiarities of Blockchain technology, as currently implemented in Bitcoin cryptocurrency, which forms the core of Smart contracts. In the third section, the main characteristic features of Smart contracts are described. Finally, the paper outlines key tensions between classic contract law and Smart contracts. The concluding section sets the core question for analysis of the perspectives of implementation of this technology by governments: ‘How to align the powers of the government with Blockchain if there is no central authority but only distributed technologies’. The author suggests two solutions, neither of which is optimal: (1) providing the state authorities with the status of a Superuser with extra powers; and (2) relying on traditional remedies and enforcement practices, by pursuing specific individuals – parties to a Smart contract – in offline mode.

In my previous publication, I tried to show how personal data legislation might be used for achieving the purposes of national sovereignty¹. In this paper, I will demonstrate how open source software may be used for achieving similar purposes. However, the interplay between local copyright law, public procurement law and open source community norms creates many issues relating to the legal status and ownership in modified software, based on open source. This is especially so in the case of so-called copyleft open source licenses, where a collision occurs between copyright, as an absolute right enforceable against the world, and the copyleft provisions of license agreements, which may be treated as “rights in personam” enforceable only against the licensee. The exclusive right to derivative software as an independent object of copyright, may come into conflict with restrictions inherited from incoming copyleft licenses. This paper provides an overview and analysis of such problems faced by Russian software developers, attempting to comply with Russian import substitution provisions, by using open source components. Although it is based on Russian law, it may be applicable to other jurisdictions, since general aspects of copyright law and its interaction with private international law and contract law drive it. The paper concludes that the developer of software, containing code licensed under GPL or other copyleft provisions, receives full exclusive right to the derivative software and can commercialize it as he sees appropriate, subject only to possible claims of breach of contract rather than copyright infringement. This opens wide perspectives for using open source components regardless of the type of license used as bricks for building a de-globalized economy and society based on principles of information sovereignty.