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From: Bent C Dalager on 31 May 2010 05:55
On 2010-05-31, Arne Vajh�j <arne(a)vajhoej.dk> wrote:
> On 30-05-2010 08:45, Bent C Dalager wrote:
>> On 2010-05-30, Arne Vajhøj<arne(a)vajhoej.dk> wrote:
>>> Since open source requires copyright then no copyright means
>>> no open source.
>>
>> If open source "requires" copyright then it is only because in the
>> current legal regime copyright is mandatory.
>
> Copyright is not mandatory.
>
> It is perfectly legal to put code in public domain.

How do you propose to do this? The Berne Convention clearly says that
all works that can be covered by copyright are covered by default. The
only mention of the public domain in the convention is in saying that
expired works enter into the public domain. There is no provision for
explicitly entering a work into the public domain before its expiry
date.

Furthermore, my own national laws stipulate that a subset of the
privileges offered by copyright are inalienable, that is you could not
sign them away even if every fibre of your being trembled with desire
to do so: The law won't let you.

I do not see that there is any way for an author to put his work into
the public domain. He might write "this work is in the public domain"
on the front page of course but it is not clear that this holds any
legal weight at all and indeed my own country says you still keep
certain inalienable copyright privileges over it.

The only apparent way to mitigate the impact of copyright over one's
own work is to write very generous license terms for it. As you point
out, this means that your work is still protected under copyright
however generous you are. This is as it must be under the current
legal regime.

> Open source chose not to do so.
>
> Because they want to have some license conditions.

I believe it is rather that they realize they /must/ write a license
because the law effectively requires it of them and then they tend to
tag on a pet provision or two after the "use as you wish" bit of the
open source license.

> No copyright => no license conditions => no open source.

Why is it that software which has the most generous license term
possible under the law (that is, no conditions), cannot be "open
source"? Surely if it were /possible/ to release source code into the
public domain then this would be just as open as an open source
license is?

>> It does help, of course, that copyright is such a huge and
>> indiscriminate sledgehammer you can use it to kill just about
>> /anything/, including copyright. Open source will tend to use the best
>> tool for the job even if that tool is copyright.
>
> Open source does not kill copyright. They just use copyright for
> a different purpose than MS, IBM, Oracle etc. (or should I say for
> those companies close source offerings - they do have open source
> offerings as well).

Open source developers certainly have a varied set of motivations for
their chose of license; some would prefer to have their license
destroy copyright while others believe copyright is essential for them
to earn a living.

>> Neither patents nor copyright are needed for software development to
>> thrive so it seems to me your conclusion is based on false premises.
>
> Neither traditional closed source nor open source would be possible
> without copyright.

But of course they would: closed source would be protected as a trade
secret, which is effectively what is happening already anyway, and any
source that anyone actually distributed would be open source by
default.

> I am not aware of any company making a living from public domain
> software.
>
> Based on that I am very skeptical about software industry in a world
> with no copyright.

While the estimates vary, around 80% of the software industry consists
of various in-house projects: Customer tracking, inventory management,
project reporting, niche expert systems, etc. This 80% of the industry
would benefit greatly from the absence of copyright since they don't
need it anyway: their software is only applicable to, distributed
within, and used by their own organisation. The absence of copyright
would make their job much easier - and less expensive - by not forcing
them to reinvent the same wheel that hundreds of others have already
designed to death time and time again before them.

Shelfware might or might not be impacted by the absence of copyright,
I suspect that for the most part that would redesign their business
model slightly and keep on earning money.

> I don't think anyone would miss software patents if they disappeared.
> That is anyone in software. The lawyers would definitely miss it.

That is certainly one thing we can agree about :-)

Cheers,
Bent D
--
Bent Dalager - bcd(a)pvv.org - http://www.pvv.org/~bcd
powered by emacs
From: Bent C Dalager on 31 May 2010 12:42
On 2010-05-31, David Lamb <dalamb(a)cs.queensu.ca> wrote:
> On 31/05/2010 5:55 AM, Bent C Dalager wrote:
>> I do not see that there is any way for an author to put his work into
>> the public domain. He might write "this work is in the public domain"
>> on the front page of course but it is not clear that this holds any
>> legal weight at all and indeed my own country says you still keep
>> certain inalienable copyright privileges over it.
>
> What country is that?

Norway. The English (non-authoritative) version of the law is here:
http://www.regjeringen.no/upload/KKD/Medier/Acts%20and%20regulations/Aandsverkloven_engelsk_versjon_nov2008.pdf

in particular para 3:
(...)

"The author may not waive his rights under the first and second
paragraphs, unless the use of the work in question is limited in
nature and extent."

"(...) This right may not be waived by the author."


also para 38c:
(...)

"The right under the first paragraph can be neither waived not
transferred. (...)"


and para 39e:
(...)

"Any agreement that to the detriment of the author significantly
deviates from the provisions of the second, sixth and seventh
paragraph cannot be applied. The author may not waive his right
pursuant to the fifth paragraph."

(...)


There may be other examples, these are the ones I could easily find by
searching on "waive" in the document. Not all of the above may apply
to software, I didn't check. Some specifics of software are treated in
paras 39g,h,i.

Cheers,
Bent D
--
Bent Dalager - bcd(a)pvv.org - http://www.pvv.org/~bcd
powered by emacs
From: Bent C Dalager on 21 Jun 2010 06:25
On 2010-06-21, Arne Vajh�j <arne(a)vajhoej.dk> wrote:
>
> FireFox and Thunderbird uses SQLite.
>
> The authors of SQLite has released it as public domain.
>
> If such a release is not valid in Norway, then all users
> of FF and TB in Norway are breaking copyright.

Even though the copyright holders have claimed the work to be in the
public domain I doubt it actually /is/ because there is no provision
in the law for that particular option. Of course, if SQLite is itself
from a nation other than Norway then things can become complicated and
it will be difficult to tell.

In practical terms I expect that this will be considered by the courts
to be a maximally permissive license, which still leaves a few aspects
of copyright in place - and is different from public domain.

Cheers,
Bent D.
--
Bent Dalager - bcd(a)pvv.org - http://www.pvv.org/~bcd
powered by emacs
From: Bent C Dalager on 21 Jun 2010 06:45
On 2010-06-21, Arne Vajh�j <arne(a)vajhoej.dk> wrote:
> On 31-05-2010 05:55, Bent C Dalager wrote:
>>
>> The only apparent way to mitigate the impact of copyright over one's
>> own work is to write very generous license terms for it. As you point
>> out, this means that your work is still protected under copyright
>> however generous you are. This is as it must be under the current
>> legal regime.
>
> There are slightly different rules for copyright around the world,
> but the fact is that public domain software is almost universal
> de facto recognized.

I don't see that this is the case. What I do see is that there exist a
number of people who would /like/ public domain software to be
achievable, and there are some who act as if it is. You might say that
these people, at least, have de facto recognized public domain softare
but what is the benefit of this? Copyright is governed by copyright
law and I cannot see that the law recognizes the public domain in any
useful fashion when it comes to software (primarily because there is
no significant body of software from before 1930-ish).

>> I believe it is rather that they realize they /must/ write a license
>> because the law effectively requires it of them and then they tend to
>> tag on a pet provision or two after the "use as you wish" bit of the
>> open source license.
>
> They could have chose public domain.

Well, that is basically the point under debate: It's not clear that
one "can" choose public domain in this context. The only thing one can
choose is how to license one's copyrighted work. If you, as an author,
"choose" public domain then I believe that the best case outcome is
that the judge gives you some leeway for not having any legal
education and maps your nonsensical (in the legal sense) choise over
into a very permissive license governed by copyright.

>> Why is it that software which has the most generous license term
>> possible under the law (that is, no conditions), cannot be "open
>> source"? Surely if it were /possible/ to release source code into the
>> public domain then this would be just as open as an open source
>> license is?
>
> Because the open source license gives some rights.

What rights are these, and who benefits from them?

>> But of course they would: closed source would be protected as a trade
>> secret, which is effectively what is happening already anyway, and any
>> source that anyone actually distributed would be open source by
>> default.
>
> Would it be a material change to protect closed source by
> trade secret instead of copyright?

The material change would be that any source code you could get your
hands on would be yours to use as you wish, unless of course you
obtained it through industrial espionage.

>> While the estimates vary, around 80% of the software industry consists
>> of various in-house projects: Customer tracking, inventory management,
>> project reporting, niche expert systems, etc. This 80% of the industry
>> would benefit greatly from the absence of copyright since they don't
>> need it anyway: their software is only applicable to, distributed
>> within, and used by their own organisation. The absence of copyright
>> would make their job much easier - and less expensive - by not forcing
>> them to reinvent the same wheel that hundreds of others have already
>> designed to death time and time again before them.
>
> The problem is that even though a lot of software is only used
> inhouse, then most companies do not want to reject the possibility
> to at some later point in time sell the software to external
> customers.

To the extent that this possibility appears as an asset at all, if it
is given a realistic value it must be very very small indeed. From
what I have seen, in-house software projects tend to be completely
unsuitable for distribution to any other than the primary client and
would take gargantuan effort to change into a sellable product.

I expect the cost savings from being able to use any and all other
software without having to worry about licensing costs and liabilities
would by far dwarf whatever miniscule economic opportunity exists in
one's own in-house projects.

> Otherwise corporations would rarely have a problem with GPL!

I expect the GPL resistance has very much to do with some fundamental
misunderstandings about how the GPL actually works. Surprisingly many
people seem to think that if they develop a GPL application then they
are automatically required to distribute it to the world and provide
support for it to anyone who asks. An accountant who actually believes
this will quickly point out that it effectively amounts to unlimited
liability and advise strongly against going anywhere near such a
license.

Cheers,
Bent D
--
Bent Dalager - bcd(a)pvv.org - http://www.pvv.org/~bcd
powered by emacs
From: Bent C Dalager on 21 Jun 2010 09:39
On 2010-06-21, Lew <noone(a)lewscanon.com> wrote:
> Bent C Dalager wrote:
>> In practical terms I expect that this will be considered by the courts
>> to be a maximally permissive license, which still leaves a few aspects
>> of copyright in place - and is different from public domain.
>
> From the user's perspective, a difference that makes no difference is no
> difference. They can safely use the product and leave the hair-splitting to
> the lawyers.

Users cannot safely use the product if they end up violating any of
the inalienable rights, wrongly thinking that the work is in the
public domain.

Authors also cannot safely just write "public domain" and think it
will do what they think it will.

As an example of the latter, an author might be interested in maximum
exposure of his work and so desire to put it into the public domain in
order to make its wide dissemination legally uncomplicated. This would
seem an obvious strategy for an unknown author trying to make a name
for himself. As it is, however, the work retains its copyright and so
any institution that might not think twice about distributing public
domain works would need to evaluate the legal implications of doing so
with the copyrighted one. If the work simply says "this work is in the
public domain" that is likely to complicate matters even further since
it is unclear what the legal standing of this is while an actual
copyright license would be considerably more clear. In sum this would
tend to restrict the distribution of the work, which directly
contravenes the author's intentions in this case.

Cheers,
Bent D
--
Bent Dalager - bcd(a)pvv.org - http://www.pvv.org/~bcd
powered by emacs
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