Open source licensing being questioned by anti-copyrighttypes
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From: Arne Vajhøj on 21 Jun 2010 18:41 On 21-06-2010 09:39, Bent C Dalager wrote: > 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. That is a theory. But does SQLite distribution seem to have been restricted due to being declared public domain? Arne
From: Arne Vajhøj on 21 Jun 2010 19:54 On 21-06-2010 06:45, Bent C Dalager wrote: > 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). Public domain software is very recognized. Software by US government employees have always been public domain and recognized as such. >>> 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. Some people are choosing public domain. These people could certainly have done the same. > 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. Most of the legal issues are centered about the fact that the law in many countries does not mention such a concept. But unless the law explicitly prohibits disclaiming copyright (which is also does in some countries), then I would expect it to be possible - the fact that something is not explicit approved in the law should not mean that it is prohibited. >>> 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? It varies between licenses. But the general purpose is to give the users certain rights. (in a few cases also certain obligations) >>> 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. If it is sufficient that you did not do the industrial espionage yourself to be allowed to use the code, then I think industrial espionage would be a very profitable business. If it need to be clean all the way, then it would be very challenging to use software, because without any license information how do you know where the code came from. >>> 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. Often it is. But the companies does not think so. It is like driving - some survey showed that 90% of people believe that they drive better than average. >> 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. I think you are underestimating the corporate lawyers. Arne
From: Lew on 22 Jun 2010 08:03 Arne Vajhøj wrote: >> They lawyers may find it very problematic. Andreas Leitgeb wrote: > IANAL, but sometimes playing devil's advocate: > > A company could write some useful code, and donate it to > public domain. Later, when others have started using it, > the company could be taken over, and the new owners may > point out, that that previous act of pd-izing was illegal > from the beginning and furtheron demand license-fees ... They would lose. Adverse possession. -- Lew
From: Lew on 23 Jun 2010 01:03 John B. Matthews wrote: > Just in: "Terrible News: Court Says It's Okay To Remove Content From The > Public Domain And Put It Back Under Copyright." > > <http://www.techdirt.com/articles/20100621/2320049908.shtml> > > Discussion: "Court Takes Away Some of the Public Domain." > > <http://yro.slashdot.org/story/10/06/22/1724254/> That article discusses Congress pulling something out of the public domain, and doesn't address the points raised in this thread about whether the copyright holder could have put the stuff in the public domain in the first place, nor whether the copyright holder could have done it without the weight of the legislature. -- Lew
From: Arved Sandstrom on 23 Jun 2010 17:35
Andreas Leitgeb wrote: > Arne Vajhøj <arne(a)vajhoej.dk> wrote: >> They lawyers may find it very problematic. > > IANAL, but sometimes playing devil's advocate: > > A company could write some useful code, and donate it to > public domain. Later, when others have started using it, > the company could be taken over, and the new owners may > point out, that that previous act of pd-izing was illegal > from the beginning and furtheron demand license-fees ... > Not illegal - there's no law (I think) against doing something which has no legal effect. 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 |