Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 09:13:49PM -0700, Sean Kellogg wrote: No argument from me... but it is the system we've got here in the States and FOSS developers should plan accordingly, just as is expected of anyone else who enters into the world of copyrights. But that's just the problem--as far as I know, there's simply no way I can release a work under any license (permissive, copyleft or otherwise) to guarantee that you won't be bitten a few decades down the line. The only way you can plan accordingly, as far as I know, is to avoid reusing other people's code entirely. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On 6/7/05, Glenn Maynard [EMAIL PROTECTED] wrote: It's not so much projects that are actually around for 35 years. Rather, if you maintain a project for, say, three or four years, I reuse large chunks of it in my own project, and my project outlives yours. Decades later, you (or your heirs) have a change of heart, and revoke the license you originally granted to me for your project, which I require to use your code in mine. You don't control 50% of my work, but you easily control 50% of the work you licensed. If I want my work to remain free, I have to excise your code from it--which, decades later, probably won't be possible. It's a textbook failure of the tentacles of evil test. This whole line of argument is a canard based on a failure to research the meaning of authorship under US law. See Aalmuhammed v. Lee ( http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm ), and observe that the 17 USC 203 termination right is reserved to _authors_ and their heirs, not contributors of any quantum of expression that might by itself be copyrightable. Cheers, - Michael
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 09:52:38PM -0700, Raul Miller wrote: You seem to be trying to talk about this in an impartial manner, but as long as you talk in terms of minimizing all obstacles you're not doing so. The GPL deliberately places obstacles to code reuse: it disallows reuse by projects that don't release every bit of linked code (more or less) under a GPL-compatible license, in the hope of increasing code reuse in the long term. I believe that to be a simple, obvious statement of fact, and not one that anyone should be offended by: the GPL restricts use of code, to use free software as an incentive for other authors to place their own works under GPL-compatible licenses. I'll readily acknowledge myself preferring permissive licenses, and I'm trying to be impartial enough to keep the thread from degenerating into an argument of philosophies (or semantics), though I don't claim that my opinion doesn't color my speech despite my efforts. My main interest in the thread was explaining how even the minor restrictions of the MIT license can be cumbersome, and why a person using permissive licenses might reasonable want something less restrictive. Er, so you're saying GPL-licensed code is usable in GPL-incompatible programs, as long as you think the authors won't object? I'm pretty sure you don't think that, so I assume I'm misunderstanding something. Where the authors declare this intention openly, and unambiguously, that's exactly what I mean. If they give an explicit licensing exception, and understand how that interacts with other GPL-licensed code, sure. Not in the general case. Do you mean that it's possible that an author might claim to release a work into the public domain, but not actually have the right to do so (eg. contractually)? That's true, but is true of all licenses ... No. Though I'll agree that that's also a possibility. I gave more detail on this issue in the message you are quoting. I read the message, didn't quite understand what you were describing, took a guess and asked if that's what you meant. Saying no, read the message again when your point didn't come across is very rarely helpful. :) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
To be precise, here is the relevant text from 17 USC 203: (a) Conditions for Termination. In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's interest. ... (4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee's successor in title. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. ... (b) ... (1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. So: 1) a copyright transfer (or reaffirmation of previous copyright transfer) contained in the author's will is not terminable by the author's personal heirs, so you can certainly block their ability to terminate if you so choose; 2) the 50% rule applies to _authorship_, which connotes (per Aalmuhammed v. Lee) a degree of creative control so high that, e. g., there is no candidate for authorship of the Linux kernel other than Linus Torvalds; 3) a later work that incorporates fragments of protected expression from the original is only encumbered if its use of that expression rises to the level of a derivative work requiring explicit grant of license, which would imply that the amount of _copyrightable_ expression copied is more than de minimis relative to the size and scope of the final work. Given the proportion of a typical piece of software that is uncopyrightable on grounds of scenes a faire, ideas and methods of operation, and so forth, it is quite unlikely that a copyright infringement claim could succeed thirty-five years after the creation of the original unless substantial, identifiable chunks have been literally copied. And if the maintainers can't reimplement those chunks without plagiarism in two years' time, they have problems much larger than those posed by 17 USC 203. Cheers, - Michael
Re: New 'Public Domain' Licence
On 6/7/05, Glenn Maynard [EMAIL PROTECTED] wrote: The GPL deliberately places obstacles to code reuse: it disallows reuse by projects that don't release every bit of linked code (more or less) under a GPL-compatible license, in the hope of increasing code reuse in the long term. I believe that to be a simple, obvious statement of fact, and not one that anyone should be offended by: the GPL restricts use of code, to use free software as an incentive for other authors to place their own works under GPL-compatible licenses. The GPL's drafters profess to believe this statement about the GPL and linked code; but it is not true under US law as I understand it, and other debian-legal contributors with actual legal qualifications in civil law countries have agreed as regards their jurisdictions. IANAL, but I can back this assertion up with case law out the yin-yang. My essay on this topic is rather long, is still in draft, and might find a more formal publication channel, so I'm disinclined to post it to d-l at this time; but anyone who would like a copy for private review need but ask, as long as they agree not to publish it. Cheers, - Michael
Re: New 'Public Domain' Licence
On Wed, Jun 08, 2005 at 12:09:28AM -0700, Michael K. Edwards wrote: On 6/7/05, Glenn Maynard [EMAIL PROTECTED] wrote: It's not so much projects that are actually around for 35 years. Rather, if you maintain a project for, say, three or four years, I reuse large chunks of it in my own project, and my project outlives yours. Decades later, you (or your heirs) have a change of heart, and revoke the license you originally granted to me for your project, which I require to use your code in mine. You don't control 50% of my work, but you easily control 50% of the work you licensed. If I want my work to remain free, I have to excise your code from it--which, decades later, probably won't be possible. It's a textbook failure of the tentacles of evil test. This whole line of argument is a canard based on a failure to research the meaning of authorship under US law. See Aalmuhammed v. Lee ( http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm ), and observe that the 17 USC 203 termination right is reserved to _authors_ and their heirs, not contributors of any quantum of expression that might by itself be copyrightable. I integrate your MP3 decoding library into my media playing software. The author of the MP3 decoding source code is very clear: you. I can only reuse that library due to the license granted to it. That license is revoked. I can no longer use the MP3 decoder[1]; if it's affected my work enough that I can not excise it from my code (so my work is not a derived work of the library), it's up a creek. This isn't a case of you contributing patches to work that I'm the author of; it's you authoring an independent work, and my integrating your work into mine--one of the most fundamental parts of free software. [1] or, for the nitpickers, can no longer distribute my work which is derived from the MP3 decoder. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: I integrate your MP3 decoding library into my media playing software. The author of the MP3 decoding source code is very clear: you. I can only reuse that library due to the license granted to it. That license is revoked. I can no longer use the MP3 decoder[1]; if it's affected my work enough that I can not excise it from my code (so my work is not a derived work of the library), it's up a creek. This isn't a case of you contributing patches to work that I'm the author of; it's you authoring an independent work, and my integrating your work into mine--one of the most fundamental parts of free software. [1] or, for the nitpickers, can no longer distribute my work which is derived from the MP3 decoder. Presumably you wrote this before reading my subsequent messages. Your use of this hypothetical MP3 library through its published interface does not create a derivative work under copyright law. But suppose you have received both license to copy and license to create and publish derivative works, and then receive the statutory minimum two-year notice of license termination. You would be well advised to find time somewhere in that two-year interval to make changes to that library sufficient to constitute creation of a derivative work, and then to freeze its API. For 17 USC 203 (b)(1) grants you the right to continue distribution of that derivative work after the termination becomes effective; and a sane court is likely to hold that localized bug fixes thereafter do not constitute preparation ... of other derivative works in excess of this privilege. Cheers, - Michael
Re: New 'Public Domain' Licence
On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: Even if your claims are true, it would still require going to court to prove, and until somebody successfully does that, very few people are going to go against the FSF's claims. So, as a matter of actual practice, my statement stands. Agreed. It'll be interesting to see whether this is addressed in the course of Wallace v. FSF. yin-yang. My essay on this topic is rather long, is still in draft, and might find a more formal publication channel, so I'm disinclined Slashdot? (Sorry, that was low. :) Pretty funny, though. ;) But actually, a lawyer of my acquaintance suggested that I consider submitting it to a law journal if it passes his review, which I found rather flattering (if improbable). 33 pages (with wide margins) is a little bit long even for /., though there's certainly room to cut some fat. Cheers, - Michael
Re: New 'Public Domain' Licence
On Wed, Jun 08, 2005 at 03:02:15AM -0700, Michael K. Edwards wrote: On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: I integrate your MP3 decoding library into my media playing software. The author of the MP3 decoding source code is very clear: you. I can only reuse that library due to the license granted to it. That license is revoked. I can no longer use the MP3 decoder[1]; if it's affected my work enough that I can not excise it from my code (so my work is not a derived work of the library), it's up a creek. This isn't a case of you contributing patches to work that I'm the author of; it's you authoring an independent work, and my integrating your work into mine--one of the most fundamental parts of free software. [1] or, for the nitpickers, can no longer distribute my work which is derived from the MP3 decoder. Presumably you wrote this before reading my subsequent messages. Your use of this hypothetical MP3 library through its published interface does not create a derivative work under copyright law. Published interface? Again, integrate into my software, not link against a published interface. Copy code directly into my program, and allow the works to merge and integrate. Another major, obvious example is forks. For 17 USC 203 (b)(1) grants you the right to continue distribution of that derivative work after the termination becomes effective; and a sane court is likely to hold that localized bug fixes thereafter do not constitute preparation ... of other derivative works in excess of this privilege. If the right to prepare derivative works is revoked, the work is clearly non-free, and we again have a failure of the tentacles of evil test. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Wednesday 08 June 2005 05:57 am, Michael K. Edwards wrote: On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: Published interface? Again, integrate into my software, not link against a published interface. Copy code directly into my program, and allow the works to merge and integrate. Another major, obvious example is forks. If you truly wish to do so, you may strip your heirs, in your last will and testament, of statutory termination rights, by the simple expedient of ratifying an existing assignment of copyright to a corporate entity run by the benevolent dictator of your choice. You don't even have to trust that benevolent dictator beyond the point at which your work is first published under their copyright notice and a sufficiently permissive license, as long as that license is contained in an offer of bilateral contract such as the GPL. (Unilateral grants of license, with no return consideration, are terminable at will in many jurisdictions irrespective of their ostensible term.) Sorry but this won't work either. The statue is quite clear that the termination right is non-assignable, even through a will. If you have a surviving spouse, children, or other issue then they will get the termination right under standard intestancy rules. Even when all of those folks are dead, the termination right cannot be transfered by a will, it goes into the hands of your estate's executor. On the other hand, nothing but death (or a certificate of mental incompetence, but that's a sidetrack I'm disinclined to follow) can legally stop someone from changing the terms of his or her will. So unless a person outlives his or her termination interest, or has died and his or her will (containing the above measures) has been through probate, you can't be sure that a grant of copyright license is irrevocable. Unless, of course, that person goes to the trouble of setting up a corporate shell and handling the accounting properly to substantiate a claim that his or her work was made for hire to begin with. For 17 USC 203 (b)(1) grants you the right to continue distribution of that derivative work after the termination becomes effective; and a sane court is likely to hold that localized bug fixes thereafter do not constitute preparation ... of other derivative works in excess of this privilege. If the right to prepare derivative works is revoked, the work is clearly non-free, and we again have a failure of the tentacles of evil test. Current US law does not permit a 32-year-old man to make a promise of eternal copyright license (with respect to a work not made for hire) binding on his 69-year-old future self. This is generally held to be a liberty granted to independent authors and artists (and their heirs) in recognition of both their courage and their improvidence. It is quite futile to protest this feature of the law, as it dates from 1978 and is easily circumvented (if you really want to) with a little planning and competent legal advice. Yeah, don't know what you mean here... I can't see how any amount of legal planning is going to avoid future-selves/heirs from exercising their termination rights. In any case, a limited exception is provided so that authors of licensed derivative works are not robbed of similar liberties with respect to works they have already created. So if RMS or his personal heir decides in 2020 to exercise his right to terminate, as of 2022, the assignment of his copyright in the 1985 edition of GNU Emacs to the FSF, those of us still alive will get to find out how much reimplementation can be done in two years and/or how far 17 USC 203(b)(1) privileges with respect to a still-evolving fork can be stretched. :-) Cheers, - Michael (IANAL, TINLA) -Sean p.s. I very much believe that all residences of a jurisdiction should be able to fully discuss the implication of the law and how it should be applied... but if it counts for anything, I am just finishing my 2nd year in law school having aced all of my IP course work. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: rfc non freeness - could a summary of the issue be made ?
On Wed, Jun 08, 2005 at 02:13:31AM -0400, Nathanael Nerode wrote: Alban Browaeys wrote: Is there a consensus about what make it non free Yes. They don't give you permission to make a new document, derived from an RFC but renamed and describing a different standard. (Unless you submit it as an RFC, which is often inappropriate, and would be a non-free submit to upstream requirement in any case). Notably, you can't include any text from them in programs you write. Including example code. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: New 'Public Domain' Licence
On 6/8/05, Sean Kellogg [EMAIL PROTECTED] wrote:
On Wednesday 08 June 2005 05:57 am, Michael K. Edwards wrote:
If you truly wish to do so, you may strip your heirs, in your last
will and testament, of statutory termination rights, by the simple
expedient of ratifying an existing assignment of copyright to a
corporate entity run by the benevolent dictator of your choice. You
don't even have to trust that benevolent dictator beyond the point at
which your work is first published under their copyright notice and a
sufficiently permissive license, as long as that license is contained
in an offer of bilateral contract such as the GPL. (Unilateral grants
of license, with no return consideration, are terminable at will in
many jurisdictions irrespective of their ostensible term.)
Sorry but this won't work either. The statue is quite clear that the
termination right is non-assignable, even through a will. If you have a
surviving spouse, children, or other issue then they will get the
termination right under standard intestancy rules. Even when all of those
folks are dead, the termination right cannot be transfered by a will, it goes
into the hands of your estate's executor.
(a) Conditions for Termination. In the case of any work other than a
work made for hire, the exclusive or nonexclusive grant of a transfer
or license of copyright or of any right under a copyright, executed by
the author on or after January 1, 1978, otherwise than by will, is
subject to termination under the following conditions:
See that otherwise than by will part? The termination right is not
assignable through a will, but a transfer by will is not terminable.
Unless, of course, that person goes to the trouble of
setting up a corporate shell and handling the accounting properly to
substantiate a claim that his or her work was made for hire to begin
with.
[snip]
Current US law does not permit a 32-year-old man to make a promise of
eternal copyright license (with respect to a work not made for hire)
binding on his 69-year-old future self. This is generally held to be
a liberty granted to independent authors and artists (and their heirs)
in recognition of both their courage and their improvidence. It is
quite futile to protest this feature of the law, as it dates from 1978
and is easily circumvented (if you really want to) with a little
planning and competent legal advice.
Yeah, don't know what you mean here... I can't see how any amount of legal
planning is going to avoid future-selves/heirs from exercising their
termination rights.
Work-made-for-hire exception. AIUI, that's how the pros in Hollywood
work around it -- anyone whose contribution to a film rises to the
level of authorship (especially screenplay writers) and hasn't
already been completed is expected to work for hire within a
corporate shell. I don't know how they approach adaptations of novels
in which the copyright was originally held personally -- ask
Christopher Tolkien, maybe.
[snip]
p.s. I very much believe that all residences of a jurisdiction should be able
to fully discuss the implication of the law and how it should be applied...
but if it counts for anything, I am just finishing my 2nd year in law school
having aced all of my IP course work.
It's always nice to have genuinely knowledgeable people (which I am
not) in the discussion. :-) You may be right about the utilize
language in 17 USC 203 (b) (1); I ought to track down the full House
Report.
Cheers,
- Michael
(IANAL, TINLA)
Re: New 'Public Domain' Licence
On 6/8/05, Sean Kellogg [EMAIL PROTECTED] wrote: This section is not referring to transferring termination rights by will, it is referring to copyright assignment by will. So, if I assign you my copyright in FOO via a will, then the assignment is not subject to termination. However, it doesn't say anything about transferring the termination right by will. So, if our intrepid Public Domainers really want to avoid having their heirs terminating licenses, they should assign all of their copyrights to the ether, and then arrange for their immediate death. Of course, I don't really think that will work under the law of wills... nor could you forever GPL your work via a will, because the GPL does not assign the copyright. Absent a clear assignment, your copyright will transfer via intestancy and end up in the hands of your heirs... because someone's got to think of the children! We're in violent agreement here. :-) I never said (or at least never meant to say) that the termination right was assignable by will, only that it was possible to extinguish it, as regards one's heirs, by a (reaffirmation of) copyright assignment in one's will. See my earlier message for how a benevolent dictator with a shell corporation, plus the fact that the GPL is an offer of bilateral contract, helps parlay this extinction of the termination right into a GPL release that neither one's heirs nor the benevolent dictator can revoke. Yeah, maybe... but the work-for-hire doctrine is tricky business. You can't just declare something a work-for-hire, it is dependent on behavior. I find it difficult to accept that most screenplays are done as a work-for-hire, because (if I understand the industry) the author pitches a screenplay to the production house. Unless the screenplay writer is drawing a regular salary, working in house, and under the direction of the production house, it is unlikely to be considered a work-for-hire. My understanding is that screenwriters working on spec (speculation, not specification) are guided by their agents in the creation of a shell corporation which receives their royalties from past deals and doles them out to the screenwriter as salary, nominally in return for copyright in new works on a work made for hire basis. I've had occasion to follow a very similar practice when wearing my software consulting services hat, more for tax reasons than for copyright's sake. But I don't know all the ins and outs of work made for hire in a copyright context (it's actually quite different from employment law), so TIEmphaticallyNLA. For a case in the area of modern dance where the appeals court ruled, using facts determined in district court, partly for and partly against assertion of the works made for hire doctrine, see Martha Graham School v. Martha Graham Center, http://caselaw.lp.findlaw.com/data2/circs/2nd/029451p.pdf . But see also Marvel Characters v. Simon at http://caselaw.lp.findlaw.com/data2/circs/2nd/027221.html ; if the relationship is not properly structured up front, even an otherwise binding acknowledgment of works made for hire status may be repudiated for purposes of termination of assignment. It's always nice to have genuinely knowledgeable people (which I am not) in the discussion. :-) You may be right about the utilize language in 17 USC 203 (b) (1); I ought to track down the full House Report. Woah, someone saying someone else might be right on Debian-Legal!!! I am shocking, amazed, and completely humbled. Yeah, well, I'm rather proud of the fact that I can still surprise and shock people. :-) However, I think the House Report actually supports an interpretation of 203(b)(1) in which continued reproduction and distribution of a derivative work is permitted after termination of license to the original. Here is the relevant text: quote An important limitation on the rights of a copyright owner under a terminated grant is specified in section 203(b)(1). This clause provides that, notwithstanding a termination, a derivative work prepared earlier may ''continue to be utilized'' under the conditions of the terminated grant; the clause adds, however, that this privilege is not broad enough to permit the preparation of other derivative works. In other words, a film made from a play could continue to be licensed for performance after the motion picture contract had been terminated but any remake rights covered by the contract would be cut off. For this purpose, a motion picture would be considered as a ''derivative work'' with respect to every ''preexisting work'' incorporated in it, whether the preexisting work was created independently or was prepared expressly for the motion picture. /quote It's worth noting that this was written in 1976, before consumer videotape, and that Congress was thinking specifically about film performance rights rather than reproduction for retail sale. It's poorly drafted law, and Congress ought to fix it before it
