Open source licensing being questioned by anti-copyrighttypes
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From: Arved Sandstrom on 21 Jun 2010 05:40 Arne Vajh�j wrote: > On 31-05-2010 12:42, Bent C Dalager wrote: >> 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. > > 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. > > I think a lot of IT people would be willing to testify about > "industry practice", "common sense", "the intention of the law" > etc. if that came to a trial. > > Arne You can make a reasonable argument that anyone who has put a statement into their documentation disavowing copyright and explicitly releasing it into the public domain (or so they believe) has in fact retained copyright but effectively told users that they can do with the software whatever they wish. This latter approach is one of the recommendations, either that or using one of the more permissive licenses, for accomplishing the same ends as placing something into the public domain (which latter is difficult or impossible to do, and may be counter-productive). I'm no software lawyer but my reading on this subject tells me that trying to disclaim copyright and put software into the public domain is problematic. I recommend perusing http://linuxmafia.com/faq/Licensing_and_Law/public-domain.html for staters, but there is a lot of easily located discussion on this subject...none of which purports to say that placing software into the public domain is easy to do. My own opinion on Unlicenses and the SQLite public domain declaration: you can put the statements in to your heart's content. It just probably won't have legal effect. Even the SQLite team recognizes that when they include this as a reason for obtaining an SQLite license: "You are using SQLite in a jurisdiction that does not recognize the right of an author to dedicate their work to the public domain." To sum up, my reading is that if an author or authors have stated that they wish to disclaim copyright and place software into the public domain, odds are very good that they haven't legally done so. But I expect a reasonable legal case could be made that in such cases, while the copyright is still held by the author(s), that they have in effect granted users the permission to do whatever they like with the software. AHS -- The most amazing achievement of the computer software industry is its continuing cancellation of the steady and staggering gains made by the computer hardware industry. -- Henry Petroski
From: Lew on 21 Jun 2010 08:23 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. -- Lew
From: Jeff Higgins on 21 Jun 2010 12:52 On 5/27/2010 10:58 PM, ClassCastException wrote: > In dealing with Java, Throughout this rambling discussion there has been no citation of case, regulatory, or statutory law from any jurisdiction.
From: Arne Vajhøj on 21 Jun 2010 18:37 On 21-06-2010 05:40, Arved Sandstrom wrote: > Arne Vajh�j wrote: >> On 31-05-2010 12:42, Bent C Dalager wrote: >>> 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. >> >> 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. >> >> I think a lot of IT people would be willing to testify about >> "industry practice", "common sense", "the intention of the law" >> etc. if that came to a trial. > > You can make a reasonable argument that anyone who has put a statement > into their documentation disavowing copyright and explicitly releasing > it into the public domain (or so they believe) has in fact retained > copyright but effectively told users that they can do with the software > whatever they wish. This latter approach is one of the recommendations, > either that or using one of the more permissive licenses, for > accomplishing the same ends as placing something into the public domain > (which latter is difficult or impossible to do, and may be > counter-productive). > > I'm no software lawyer but my reading on this subject tells me that > trying to disclaim copyright and put software into the public domain is > problematic. I recommend perusing > http://linuxmafia.com/faq/Licensing_and_Law/public-domain.html for > staters, but there is a lot of easily located discussion on this > subject...none of which purports to say that placing software into the > public domain is easy to do. They lawyers may find it very problematic. But there does not seem to be any problems with software where the authors put code (or try to put code) in public domain. > My own opinion on Unlicenses and the SQLite public domain declaration: > you can put the statements in to your heart's content. It just probably > won't have legal effect. Even the SQLite team recognizes that when they > include this as a reason for obtaining an SQLite license: "You are using > SQLite in a jurisdiction that does not recognize the right of an author > to dedicate their work to the public domain." > > To sum up, my reading is that if an author or authors have stated that > they wish to disclaim copyright and place software into the public > domain, odds are very good that they haven't legally done so. But I > expect a reasonable legal case could be made that in such cases, while > the copyright is still held by the author(s), that they have in effect > granted users the permission to do whatever they like with the software. Could very well be that would be the judges approach. If there are no legal possibilities for public domain in that jurisdiction, then it seems as what best fits what both the author and the users want. Arne
From: Arne Vajhøj on 21 Jun 2010 18:40
On 21-06-2010 06:25, Bent C Dalager wrote: > 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. As I replied to Arved: Could very well be that would be the judges approach. If there are no legal possibilities for public domain in that jurisdiction, then it seems as what best fits what both the author and the users want. Arne |