Re: Trademark scope (just for the record)
Quoting Steve Langasek ([EMAIL PROTECTED]): On Thu, Sep 06, 2007 at 08:25:30AM -0700, Rick Moen wrote: As usual for trademark claims, the complainer greatly overstates the rights actually available to trademark owners[1]. Briefly stated, establishing a valid trademark entitles you to prohibit others in your same trade or profession from offering competing commercial goods or services[2] using your mark in a way likely to confuse your customers into thinking you have produced or endorsed the competing goods or services. All other uses of the mark are automatically lawful.[3] I don't think that Debian disagrees with this... OK, that's good, because I often have a difficult time getting people to believe that -- or even read carefully. Let's trace out the implications: ...so I'm not sure why you seem to have reached the opposite conclusion (your implicit point seems to be that Debian is ok to ship its browser as firefox without permission of Mozilla). I am not rendering the Debian Project legal advice (at least, not within the meaning of my local UPL statutes ;- ), so I will not address that _specific_ question. However, I'm glad to discuss the operation of trademark law generally as to what is and is not trademark infringement -- and it would also be fair game to discuss its application in past cases, and in hypothetical ones. Perhaps you don't understand that it's our position that Debian and its derivers need to have the freedom to make modifications to the browser without being obligated to either get prior approval from Mozilla Corp. for each change, or rip out the trademarks and/or rename the packages and/or update all marketing materials that might mention the browser? Trademark law never requires any such thing. (I guess I'll borrow the sordid lives of Alice and Bob from their traditional usage in cryptography texts, for the following.) Let's say Alice writes a Web browser and establishes its name, stylistic elements, and logo as a trademark in her country, under free-software licensing (but publishes a restrictive trademark policy, alongside that). Bob is part of the Bob Project, a free-software Linux distribution, and ITPs his packaged version of Alice's browser. Alice complains, charging that Bob is violating her trademark policy in, e.g., by building the software's directory layout for Linux in FHS fashion, and otherwise complying with Bob Project Policy that conflicts with hers. She suggests that Bob bring his package into compliance by substituting a different name, logo, and various trademark-encumbered stylistic elements for hers. Bob's a nice guy, but is not an idiot in legal matters, and so carefully studies the nature of the trademark infringement statutes and caselaw. He sends Alice a memo, which is polite and appreciative but doesn't give Alice what she wants: Dear Alice: We at the Bob Project indeed agree that we should take the utmost care in respecting your brand identity for the Earthbadger Web browser, and thank you for calling our attention to your common-law trademarks and pending application for a Federal trademark at USPTO. Our understanding of trademark law is that we're obliged to ensure that users of our derivative work understand that Alice Company does not produce or endorse our version of the browser. Additionally, it is helpful and good manners (albeit nowhere required by law) to acknowledge your trademark claim. In order to respect and protect your trademark rights, we will be immediately doing both of those things. As I write this, I'm uploading to the ftpmasters our new packages of Earthbadger, whose About Earthbadger screen and /usr/share/doc/earthbadger/README.gz file now include the prominent text Bob Project's Earthbadger software build is not produced or endorsed by Alice Company. Earthbadger is a trademark of Alice Company. When we hear that USPTO has issued your trademark registration, we'll be glad to change the latter sentence to Earthbadger is a registered trademark of Alice Company. We believe the above to fully satisfy our obligation to avoid trademark infringement. Thank you for the reference to your trademark policy, but we are not aware of any obligation on our part to abide by any terms within it, as long as we have satisfied our obligations under actual trademark law, which appears to be the case. If you know of any aspect of our Earthbadger package that is in any way likely to confuse your customers into thinking Alice Company has produced or endorsed it, please let us know, and we will correct it immediately. Thank you for producing Earthbadger, which our users appreciate greatly. /s/ Bob Even if we were shipping a browser package today that was the same as the upstream product (which we aren't, because of the logo change if nothing else), it's entirely possible that in the future we would be shipping
Re: Trademark scope (just for the record)
Quoting Steve Langasek ([EMAIL PROTECTED]): On Thu, Sep 06, 2007 at 11:50:21PM -0700, Rick Moen wrote: Trademark law never requires any such thing. When you are distributing a product which is similar, but not identical, to the product of the trademark holder, using the trademark to identify it? I beg to differ. You can beg to differ all you want: Trademark law imposes no such requirement. As I said, the test is a clearly established one that you needn't take my word for. You can check Bitlaw; you can check other standard information resources; you can read the Lanham Act or other applicable statute for your jurisdiction. Nominative fair use expressly _permits_ use of names and other mark elements, as long as the net effect that customers are not likely to believe that the product with the allegedly confusing mark is produced / endorsed by the organization that holds the registered mark. A judicious distance in brand identity might make it prudent that Bob name his offering Bob's Earthbadger, but isn't going to bar him from making reference to the earth and badgers. Bob would not, for example, have to substitute references to ice and weasels. Our understanding of trademark law is that we're obliged to ensure that users of our derivative work understand that Alice Company does not produce or endorse our version of the browser. So, here's where I believe the problem lies. I'm not convinced (and won't be, without competent legal advice to that effect) that calling the browser Earthbadger, but posting a notice within About Earthbadger, satisfies the legal requirement to ensure that the users understand it's not a product of Alice Company; and I don't believe that Alice would be sanguine about this potential for confusion. Mind you, that is not the only thing Bob could do to ward off Alice's legal claim. E.g., he could name his package Bob Earthbadger (or do you think Coca-Cola Company is able to bar sales of Royal Crown Cola?). The About screen could flash at startup as a splash screen, OpenOffice.org-style. Bob even could have it be part of the bottom page border of every window unless disabled by the user in Preferences. Additional or different measures may be better. But the point is, to prevail, Alice would need to convince a judge that her customers were likely to think she produced or endorsed Bob's browser. When she tried that, Bob would point out to the judge that, no, it says the exact opposite, right below the name and copyright notice, and cite other measures taken to prevent that impression. As http://chillingeffects.org/trademark/faq.cgi#QID52 says: Nominative fair use This is when a potential infringer (or defendant) uses the registered trademark to identify the registrant's product or service in conjunction with his or her own. To invoke this defense, the defendant must prove the following elements: * his/her product or service cannot be readily identified without pointing to the registrant's mark * he/she only uses as much of the mark as is necessary to identify the goods or services * he/she does nothing with the mark to suggest that the registrant has given his approval to the defendant The nature of our disagreement seems to be in our differing assessments of what's going to cause confusion in the minds of the customers. I'd call that progress -- because _all of the prior writings_ from the Debian Project on this and similar subjects have started and stopped with Well, gosh, we need their permission to use their name / logo / images, which is of course nonsense. So, yes, the question you _should_ have asked is: What is sufficient to convince a reasonable man that a claim lacks credibility that a trademark owner's customers are likely to be confused into thinking a third-party product is not produced or endorsed by that trademark owner. Personally, I would expect a prominent, clear disclaimer to the opposite effect is exactly what meets that need. _Linux Gazette_ did that, and it was exactly what was needed, even though SSC's Phil Hughes was blowing $330 on a US Federal trademark registration and waving his lawyers at us. You open an issue of the _Gazette_ and it says to the lower right of the front page, and below the copyright notice on every article, that SSC doesn't produce or endorse our magazine. Now, does that mean all readers of the magazine are unfailingly going to see that notice? No. That's not the standard the law imposes. ` (If you were extremely skittish about nominative fair use, you would also name your browser Bob Earthbadger or maybe even BobBadger -- but you wouldn't, say, do something as pathetic as retreating all the way to Iceweasel, right? ;- ) Just for completeness's sake: In Hughes's case, additionally, there was the difference that his trademark claim was very weak, since the founding editor had not transferred any commercial rights to SSC, during the period
Re: Trademark scope (just for the record)
Quoting Ken Arromdee ([EMAIL PROTECTED]): On Thu, 6 Sep 2007, Rick Moen wrote: Pepsico doesn't ask the Coca-Cola Company's permission to publish claims that its sugar-water is better tasting than is Coca-Cola. That ought to be a big, fat clue, but far too many people have been successfully conned and don't think about the implications. But on the other hand, Pepsi doesn't put out a soft drink which says on the label This is Coca-Cola, but it is not produced or endorsed by the Coca-Cola Corporation. I didn't say it is. To repeat myself, yet again: I was not suggesting that was the case. Read what I _said_, please. I was pointing out one huge clue, from the realm of everyday commerce, that should have alerted Debian users to the fact that, no, it is not true that one must ask a trademark owner's permission to use that mark. My point is that I've never seen any sign of awareness from Debian Project people or on this illustrious mailing list of that basic truth. In the Mozilla example, Debian's using the word to refer to their own product. I am of course aware of that difference. Again, to repeat myself: Nominative fair use expressly _permits_ use of names and other mark elements, as long as the net effect that customers are not likely to believe that the product with the allegedly confusing mark is produced / endorsed by the organization that holds the registered mark. A judicious distance in brand identity might make it prudent that Bob name his offering Bob's Earthbadger, but isn't going to bar him from making reference to the earth and badgers. Bob would not, for example, have to substitute references to ice and weasels. My aim in this thread was _not_ to get Debian Project to reverse a stupid, but already implemented, decision. That's why the Subject header was Trademark scope (just for the record). If I've had no greater effect than to call people's attention to the fundamental error of thinking one must secure a trademark owner's permission to use a brand name or identifying marks, then it will not have been time wasted. (E.g., you'll note that CentOS stupidly expunged all references to Red Hat and Red Hat Enterprise Linux upon receipt of a trademark demand letter from Red Hat Legal, and substituted vague references to an Enterprise-class Linux Distribution derived from sources freely provided to the public by a prominent North American Enterprise Linux vendor. That's just undignified, to be that spineless and bully-able, just because you're ignorant and can't be bothered to consult standard information resources about law.) -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Trademark scope (just for the record)
- Forwarded message from rick - Date: Wed, 5 Sep 2007 19:15:11 -0700 To: [EMAIL PROTECTED] Subject: Re: :-/ Quoting Trent W. Buck ([EMAIL PROTECTED]): See http://bugs.debian.org/354622 for the full story. Sorry I didn't include that link before, I was lazy. As usual for trademark claims, the complainer greatly overstates the rights actually available to trademark owners[1]. Briefly stated, establishing a valid trademark entitles you to prohibit others in your same trade or profession from offering competing commercial goods or services[2] using your mark in a way likely to confuse your customers into thinking you have produced or endorsed the competing goods or services. All other uses of the mark are automatically lawful.[3] The standard way to disarm any possibility of a valid trademark infringement complaint is to (1) state who owns the trademark, and (2) say that trademark-owning party doesn't produce or endorse one's separate offering. Trademark law does _not_ entitle you to prohibit third-party uses you haven't licensed. It just doesn't. Trademark owners always pretend it does. It's a bluff.[4] And open source people fall for it every single time -- but one. The editors of _Linux Gazette_ faced down hostile trademark claims from SSC, Inc.: After the _Gazette_ staff left SSC's Web-hosting of their magazine, SSC suddenly asserted trademark ownership over the magazine's name, and threatened their Internet domain ownership and implied other possible legal remedies. The editors, who _did_ understand trademark law, declined to back down, and appended the following notice to the Web site and all issues of the magazine: Linux Gazette is not produced, sponsored, or endorsed by its prior host, SSC, Inc., which has been known to assert trademark claims despite our founding editor having clarified that he conveyed no trademark rights to them and that the magazine was to remain non-commercial. After observing that the magazine declined to be bullied, SSC eventually dropped that initiative entirely, and went away. And _Linux Gazette_ remains _Linux Gazette_. P.S.: When someone says you need to comply with his/her trademark policy, or says you need permission to use a trademarked name, reach for your wallet. ;- (This is not to suggest in any way that Mozilla Corporation are being evil. They're not: They're just trying to control the use of their trademarks, and prevent them from becoming generic, something all trademark owners are motivated to do. See the hyperlinks in footnote #4 for the reasons why.) [1] Characterisation should be broadly valid across, at minimum, all countries using English common law systems. Probably European continental civil law systems, too, but I cannot be sure. [2] A trademark over a (non-physical-goods) service is technically called a service mark. [3] Not counting other torts like trademark _disparagement_, in which you wrongfully sully the reputation of someone's trademark. [4] Don't take my word for it: http://www.openp2p.com/pub/a/p2p/2003/08/14/trademarks.html http://www.bitlaw.com/trademark/infringe.html -- Cheers, Rick Moen vi is my shepherd; I shall not font. [EMAIL PROTECTED] -- Psalm 0.1 beta (_Linux Gazette_ Contributing Editor, but speaking for himself, here.) - End forwarded message - -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: DFSG conform OSI licenses
Quoting Francesco Poli ([EMAIL PROTECTED]): [Comparison of DFSG and OSD:] OSI based its OSD on the DFSG More specifically, Bruce Perens wrote the latter document first, and then copied it wholesale with trivial modifications to create the former (The license instead of The license of a Debian component, and shall not rather than may not, and must not be specific to a product instead of must not be specific to Debian in a couple of items). Later, I believe, there were two other minor divergences: OSI added some additional safeguards to those of DFSG#2 about separately available source code, taken primarily from the text of GPLv2. And, in reaction to proposals of clickwrap software licences, OSI added the OSD#10 requirement (licence must be technology-neutral). (Incidentally, Debian should consider updating DFSG to incorporate wording similar to that of OSD#10.) ...but treats it as a *definition*, that is to say, a set a *rules* whose letter, it seems, must be met, in order for a *license* to be *approved* (OSI-certified) as Open Source. This is true, but please note that approval is not endorsement, and OSI deprecates some because they're dumb in particular ways. Its process for classifying licences into recommended, less recommended, and are you kidding? is slow, on account of bickering from those whose oxen are getting gored (my interpretation, anyway). However OSI has begun to interpret the OSD in such a relaxed way, that it seems almost any license even vaguely resembling something acceptable gets approved, sooner or later... I strongly dispute your assertion, having been active on OSI's license-discuss mailing list for years and participated in pretty much every evaluation there (while having been mostly a lurker here). Would you mind please citing a few examples? IMHO, the term Open Source has gradually become totally meaningless, because of this we-certify-everything attitude of OSI I know of not even one example of same. To the contrary, I was one of several license-discuss participants who helped OSI reach consensus to reject MPL 1.1 + Exhibit B badgeware licences, for example. (and, ironically, because of the success that the very term gained: everyone now uses and abuses the term Open Source to mean anything, just since it's a trendy term...). The abuse of the term by, e.g., Centric CRM is surely not OSI's fault. They vocally oppose it, for one thing. And, actually, attempting to do so is starting to emerge as a losing ploy, because it brings bad publicity. -- Cheers,English is essentially a text parser's way of getting Rick Moen faster processors built. [EMAIL PROTECTED]-- John M. Ford, http://ccil.org/~cowan/essential.html -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: old and new GNU documentation licenses, and the some of the manuals to which they apply
Quoting Branden Robinson ([EMAIL PROTECTED]): The simple license -- what I have been calling the traditional GNU documentation license, reads as follows: Permission is granted to make and distribute verbatim copies of this manual provided the copyright notice and this permission notice are preserved on all copies. Permission is granted to copy and distribute modified versions of this manual under the conditions for verbatim copying, provided that the entire resulting derived work is distributed under the terms of a permission notice identical to this one. Permission is granted to copy and distribute translations of this manual into another language, under the above conditions for modified versions, except that this permission notice may be stated in a translation approved by the copyright holder, or an organzation to whom the copyright holder is willing to delegate this function. If the point is obvious, my apologies, but: If sufficiently motivated people are annoyed by the ongoing conversion of GNU documentation to GFDL, they may at any time fork the final non-GFDL version and maintain derivative works (updated manuals) to benefit Debian and others. -- Cheers, Entia non sunt multiplicanta praeter necessitatem. Rick Moen -- William of Ockham (attr.) [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): Making a contract is no violation of the Berne Convention (and contract doesn't mean you have always to sign anything). I'm sure you'll have noticed that I didn't say it was. There are different ways to implement the rules of the Berne Convention, and there are a lot of countries who did the way Germany did. Cite, please. (I assume you mean insist that all software licences must apply through contract law mechanisms.) -- Cheers,Cthulhu loves me, this I know; because the High Priests tell me so! Rick Moen He won't eat me, no, not yet. He's my Elder God, dank and wet! [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): The question whether a copyright license necessarily is a contract has nothing to do with the Berne Convention. I'm sure you'll have noticed that I didn't say it did. (As with my making that same comment to Andreas, I'm being _ironic_: Plainly, you didn't bother to read my post carefully, since you are reading into it a meaning wildly different from its plain sense.) Germany, like most European countries, does not require consideration to be present in a contract. That is vaguely interesting to know. If I make an offer and you accept it, we've got a contract. You're saying there are _no_ other required elements of contract formation under German law? That seems very difficult to believe. In English-derived common law legal systems (such as that of the USA), the required elements are: Agreement: Offer. This entails: Quantity (what is being exchanged) Time (when the contract must be performed) Identification of parties Price Subject matter (what is the person making the offer willing to give) (Additionally, there must be serious intent to enter into a bargain, and certainty and definiteness of terms.) Acceptance. This entails: Serious intent to be bound. Communication to offeror. (Offer and acceptance jointly establish privity of contract.) Consideration. Capacity (of offeror and offeree). Lawful purpose. Genuineness of assent (no fraud, duress, undue influence). Form (i.e., some kinds of contract must be of written form). Are you saying that parties to German contracts aren't required to have the legal capacity to enter into contracts? Are they binding against infants? Somehow, I rather doubt it. -- Cheers, First they came for the verbs, and I said nothing, for Rick Moenverbing weirds language. Then, they arrival for the nouns [EMAIL PROTECTED] and I speech nothing, for I no verbs. - Peter Ellis
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): B downloading from A is not a problem. The problem is: How can C get a valid contract from A, but he is downloading only from B? Well, A has said GPLv2, and within the first condition he has given implicit permission to make a GPLv2-contract on his behalf to anyone who has a piece of GPLv2-source of him. Under common law (and extensions such as the Uniform Commercial Code), the required contract element of acceptance entails _communication_ of that acceptance to the offeror. Obviously, C's acceptance per that framework is legally problematic. (Informally, one speaks of a meeting of the minds being required.) -- Cheers,Cthulhu loves me, this I know; because the High Priests tell me so! Rick Moen He won't eat me, no, not yet. He's my Elder God, dank and wet! [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): 17 USC 106 (3) lists four ways for a copy to be distributed. [...] If you think 17 USC limits the means of distribution of a copyrighted work's instance to only four, and somehow precludes for software anything other that sale or lease, then I think you have an extremely active imagination. _Obviously_ the Copyright Act in no wise addresses, let alone restricts, the ways in which works may be distributed. Be serious. In such a case, the licensor has no more rights than granted to him by copyright law. Well, duh. If there is no privity, there can be no contract, therefore the rights granted are granted by statute. That is a non-sequitur, and you are begging the question: Open-source licences such as GPLv2 and the BSD licence are _founded_ in the assumption that licensors may grant rights above and beyond the statutory ones, with attached conditions. Perhaps I'm missing some key point, but I don't see how we can use such software save under a valid license or leasing agreement persuant to section 106 (3) and following the legal forms of a lease. Yes, you are indeed missing a key point. Sorry, but this has become tedious. -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): You said in your previous message that you had in mind the overwhelming majority of jurisdictions that have copyright regimes in line with the Berne Convention and that lack such additions. I interpreted this to mean that you thought that the BC was somehow relevant to Andreas' comment that in Germany you always make a contract, even with GPL. So now I am curious why you brought up the BC at all? Copyright regimes around the world tend to be more similar than different in large part because they've mostly been brought into harmony with the Berne Convention. I had thought this was a familiar notion. There are of course other elements, such as the capacity of the parties, the manner of making the offer and the acceptance, whether offer or acceptance was made under duress or under wrong impressions, and so on. OK. If you're going to be so picky as to object to a general observation as having exceptions in a few jurisdictions (especially when those exceptions are known from recent discussion), then I'd suggest you should yourself be careful to speak precisely. Let's say I offer to give (donate) you a painting. You have to do nothing but accept it. I do not ask anything in return. Assuming all elements other than consideration are in order, is there a contract under US law? I'll tell you what: I've posted the required elements of contract formation under common law (and UCC, which technically would apply in that example). You figure it out. Have fun. -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): Thank you for your explanation of the common law. You're quite welcome. Well, we really have two legal systems in the world, the Roman Law (including the countries of both Roman Empires, that including Russia as sucessor of the east-roman empire, and the holy roman empire as sucessor of the west-roman empire and it's sucessors Spain, France and Germany and the other European countries except England and Ireland, all including their allied countries and other areas in near relation), and the common law (including the Kingdom of England and Wales, the Kingdoms united with these (Scottland, Northern Ireland), their (former) united and allied countries, their empire, the common-wealth, ...). The two legal systems are total different. There is also Muslim law. Yes, I'm quite well aware of the legal systems influenced by the Napoleonic Code on the Continent. (It is not very accurate to call that Roman Law.) And I'm sure it's a fascinating side-discussion, but one I'd rather not have at this time. Still, I do appreciate your posting the details of German contract formation. -- BLINKResize your browser so the following line touches both margins!/BLINK HR WIDTH=75% Best Regards, Rick Moen, [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): [USA Copyright Act:] It lists the four ways in which a copyright holder has the exclusive right to distribute a work. Leasing is the type of distribution typically considered for software. Leases follow the forms of Contract Law. What other type of distribution are we talking about here? Your implicit assumption that methods of distribution of a copyrighted work must be enumerated specifically in the Copyright Act in order to be lawful is blatantly absurd, and I do not accept it. I have now said that twice. If the license does not meet the conditions of a contract, the license is invalid, and any grants of permision contained within the license are null and void. That is the same non-sequitur as it was in your last message. You are repeating yourself. Of course. The entire point here is that the granting of permisions merely follows the forms of Contract Law. Nothing more. No, it does not follow the forms of contract law. There is (typically) no acceptance conveyed to the licensor, for one thing. Moreover, you are ignoring my basic point that the question of contract formation is irrelevant to the mechanism by which the specified licences operate. Since nothing in Copyright Law (or any other segment of law that I'm aware of) restricts the rights you can give away, Contract Law allows you to create a legally binding agreement to give away those rights subject to conditions. Although _that_ statement may also be true, it is irrelevant to the preceding discussion: There need not _be_ formation of a contract for copyright law to apply, and for copyright-based licences such as GPLv2 and the BSD licence to apply though that law. (Claimed exception of German law noted again in passing.) -- Cheers, I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, [EMAIL PROTECTED] denigrate means 'put down'. -- Bob Newhart
Re: Some licensing questions regarding celestia
Quoting Richard Braakman ([EMAIL PROTECTED]): Um, you missed or other transfer of ownership. The recipient gains ownership of a copy (and sometimes this is an actual sale, where money changes hands), and gets a license to make and distribute further copies under certain conditions. Thank you. Really, I wasn't going to spend time running through the USA Copyright Act trying to find specific authorisation in it for putting works out in public without selling or leasing them -- as plainly that would not be necessary for it to apply subject to the copyright regime -- but it's good to hear that such wording is (apparently) actually in there. -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Joe Moore ([EMAIL PROTECTED]): If that is the case (that a meeting of the minds is required for a valid contract to be formed), and a contract is required for a software license, then where is the meeting when Dell resells Microsoft's software? Allegedly, Dell is operating as Microsoft Corp's business agent, pursuant to an ongoing agency relationship. (Do we need to get into the law of agency?) -- BLINKResize your browser so the following line touches both margins!/BLINK HR WIDTH=75% Best Regards, Rick Moen, [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): The issue is not whether they are lawfull or not, but merely that those are the only forms of distribution available exclusively to the copyright holder. You are question-begging, again. Sorry, I still do not accept the premise. No, it does not follow the forms of contract law. See MA Mortenson v. Timberline;[1] Pro CD v. Zeidenburg; In ProCD, which involved a retail purchase of software, the Seventh Circuit held software shrinkwrap license agreements are a valid form of contracting under Wisconsin's version of U.C.C. section 2-204, and such agreements are enforceable unless objectionable under general contract law such as the law of unconscionability. ProCD, 86 F.3d at 1449-52. GPLv2, the BSD licence, et alii are not shrinkwrap licences. Moreover, the enforceability of shrinkwrap licences has been heavily contested and is in ongoing doubt, as they have tended to be ruled to be contracts of adhesion (i.e., lacking in meaningful privity of contract). E.g., Step-Saver Data Systems, Inc. v. Wyse Technology (939 F.2d 91 (3d Cir. 1991)) ruled that a particular shrinkwrap licence was subject to the conventional contract-formation guidlines of UCC section 2-207 and would have failed to form a contract for lack of privity if an existing contractual relationship hadn't existed before opening the package. Vault Corp. v. Quaid Software Ltd. (5th Circuit, on appeal -- 847 F.2d 255 (5th Cir. 1988)) ruled that a different shrinkrwap licence was indeed a contract of adhesion and unenforceable (and, indeed, threw out an entire Louisiana statute that claimed the contrary). And, by the way, I just refreshed my memory on your cite of ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). The court held that no contract was formed by the parties until the buyer accepted the seller's terms by either returning the software after reading the license agreement or electing to keep the goods. Essentially, there has to be meaningful opportunity for the buyer to approve or return, or there could not be any meeting of the minds. The same court later reinforced this guideline in Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), that a 30-day approve-or-return period was sufficient to overcome meeting-of-the-minds objections, and established binding acceptance. M.A. Mortenson Co. v. Timberline Software Corp., et al. (Supreme Court of Washington 140 Wn.2d 568; 998 P.2d 305 2000) does _not_ advance your assertion. Buyer asserted that he was simply unaware of the purchase terms and claimed he should not be bound, but the facts showed his awareness (having twice asked the buyer to sign an agreement comparable to their disputed license agreement). In any event, as I said, heavily contested: The 7th Circuit with its Wall Street proclivities says yes, adherents of Vault v. Quaid as the leading case say no. UCC2B would of course change that, and is one of the design goals of that code. There is (typically) no acceptance conveyed to the licensor, for one thing. Then as has been shown in various shrinkwrap cases, the entire license is null and void. [See Spect et al v. Netscape] The alleged _contract_ is null and void. You are still begging the question of licensing irrespective of contract, and I still do not accept your fundamental premise. Although _that_ statement may also be true, it is irrelevant to the preceding discussion: There need not _be_ formation of a contract for copyright law to apply, Copyright law applies regardless. Whether or not a contract forms is a separate question from whether or not an enforceable licence can be constructed (e.g., GPLv2 and BSD licence) entirely subject to copyright law. And you have been wasting your time and mine. Enough, sir. -- Cheers,Remember: The day after tomorrow is the third day Rick Moen of the rest of your life. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): Perhaps I'm just not seeing or understanding clearly, but so far no one who claims that free software licenses are neither a lease nor a contract (at least in the US) has explained what type of legal agreement they would be. Just for the sake of anyone who may not have been following closely, I'll mention again that this notion that agreement must be involved is yours alone, and of course is part of why you see everything in terms of contract law. -- Cheers, Chaos, panic, disorder - my work here is done. Rick Moen [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): True. However, since we were discussing whether a license necessarily is a contract, it seems strange to bring up a copyright treaty that has nothing to do with contracts. Actually, it's that other guy who's fixated on contracts. (Every time a copyright licence discussion starts, there's always at least one such person.) The point is that copyright regimes tend to be generally similar across most jurisdictions because of efforts to standardise them to benefit international business. E.g., the Berne Convention. Thus, although I doubt I'll ever become more than vaguely familar with the fine details of most of the world's legal systems, it seems very likely that most copyright regimes that participate in the international framework will have mostly similar provisions in that area. That was my point of mentioning in passing the Berne Convention. Anyway, I think the only thing we can conclude is that it is in some countries possible for the GPL to be interpreted as a contract, and in some countries it is not. I will certainly acknowledge the claims advanced here about German law. I'm curious about specifics of that and other countries that might be mentioned, and look forward to seeing them. (Unfortunately, my command of the German language probably isn't good enough to follow references.) -- Cheers, We write preciselyWe say exactly Rick Moen Since such is our habit inHow to do a thing or how [EMAIL PROTECTED] Talking to machines; Every detail works. Excerpt from Prof. Touretzky's decss-haiku.txt @ http://www.cs.cmu.edu/~dst/
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): You are mistaken. Your statement is not true for parts of this world (but it may be true for other parts of the world). For example in Germany you're always making a contract, even with GPL. I have no doubt you are correct -- but I had in mind the overwhelming majority of jurisdictions that have copyright regimes in line with the Berne Convention and that lack such additions. -- Cheers,Cthulhu loves me, this I know; because the High Priests tell me so! Rick Moen He won't eat me, no, not yet. He's my Elder God, dank and wet! [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): I'm at a loss to find where copyright law specifies the terms and forms of an agreement or license. (Note: Agreement is your addition to this discussion, part of your attempt to change the subject to contract law. I spoke nowhere of agreements.) Assuming we're talking about USA jurisdictions: 17 USC 106 et seq. enumerates rights reserved to copyright owners by default. Others are conveyed automatically to any lawful recipient of a covered work -- the default licence implicit in copyright law. (The fact that the word licence doesn't appear in the Copyright Act is entirely irrelevant to the subject.) GPLv2 is an example of a grant of some of those reserved rights subject to specified conditions, above and beyond the default rights conveyed. The BSD licence is another. See other messages in this thread in regards to consideration. I've been seeing them for many years, ad nauseum. Whether valid consideration exists sounds open to question. [I'm not all together sure why privity would play a role Why am I not surprised? If you are asserting that licences must apply through contract mechanisms (which is what I understand to be your -- tediously familiar from past iterations of this discussion -- argument), then privity of contract between the licensor and third-hand recipients becomes a problem. You might be able to build a case that those downloading the tarball directly from the author's site undergo the required offer acceptance, but further uploads and downloads entail no such relationship between recipient and licensor. Licenses obey the forms of either a contract or a lease or they are not legally valid. That is false. Please read, for example, GNU GPLv2. It has been argued that the GPL follows the forms of a legal agreement, or contract between two parties. Do I correctly understand that you are incapable of understanding the plain language of GPLv2 clause 0? The Program, below, refers to any such program or work, and a work based on the Program means either the Program or any derivative work under copyright law: If it doesn't, from which common law cases or statute does it draw its legal authority? In the USA, 17 USC 101 et seq. (Copyright Act). -- Cheers, Ever wonder why the _same people_ Rick Moen make up _all_ the conspiracy theories? [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Anthony DeRobertis ([EMAIL PROTECTED]): Why not do something like: statement (maybe) releasing work to public domain If the above is not legally possible, then (name[s]) grant(s) you and any other party receiving this code a perpetual, irrevocable, royalty-free license to [everything copyright law prohibits]. (name[s]) additionally grant(s) you a royalty-free... license to do anything else that you would be allowed to do with a work in the public domain. It is the intent of (name[s]) that this work be treated as if the public domain statement above is valid. What would be wrong with that? Best case, it is public domain; worst case, it is public domain in all but name. I like it; it would probably work (my guess). The only thing wrong with it is there's no exclusion of warranties and damages, a la BSD or MIT/X I still can't for the life of me understand why anyone would _not_ want those on a work one is handing out for free, but to each his own. -- Cheers, I used to be on the border of insanity. However, due Rick Moen to pressing political concerns, I recently had to invade. [EMAIL PROTECTED]-- Kurt Montandon, in r.a.sf.w.r-j
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): Licenses are primarily founded upon Contract Law, not Copyright Law. You are mistaken. You may wish to read GPLv2. Please also consider the matter of privity of contract. In order for (2) to be legally indeterminate, there needs to be applicable statutory or case law limiting the rights which a copyright holder can give away. This assertion is non-sequitur. Your reasoning has gone transrational. Reasons why it is indeterminate have been already stated. -- Cheers,Remember: The day after tomorrow is the third day Rick Moen of the rest of your life. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): I should have been more clear that I was refering to licenses in the general sense. Oh, so now you're attempting to change the subject! I see. You had said: My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. You claimed that this followed directly from contract law, to which I replied: The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. You are absolutely correct, though, in pointing out that Copyright Law plays a part in the rights that are granted to the public without a License The other gentleman did not say that. Moreover, it is quite clear that contract law need not be involved in the rights that are granted to the public without a license. For example, if I write a codebase and put it up for public ftp without an explicit statement of licence, the rights conveyed to downloaders are granted solely through action of copyright law (forming a default licence that omits the right to redistribute and create derivative works, among others). -- Is it not the beauty of an asynchronous form of discussion that one can go and make cups of tea, floss the cat, fluff the geraniums, open the kitchen window and scream out it with operatic force, volume, and decorum, and then return to the vexed glowing letters calmer of mind and soul? -- The Cube, forum3000.org
Re: Some licensing questions regarding celestia
Quoting Branden Robinson ([EMAIL PROTECTED]): * To my knowledge, in the U.S, a statement from all the copyright holders of a work is sufficient to place it in the public domain, if they want to do so before it would otherwise pass into the public domain through expiration of copyright Branden -- Would that it were so! The matter has been the topic of extensive discussion on the OSI license-discuss mailing list, and after a great deal of discussion the issue remains unsettled, but nobody can cite any clear indication of what the legal effect of such as declaration is: There has been no relevant caselaw. o It might be ruled to constitute an irrevocable licences for gratis usage by anyone, for the remainder of the licence term. o It might be ruled to actually _place_ the work in the public domain, but this seems unlikely, as there is no statutory provision for doing so, and it seems unlikely the owner could excuse himself from the duties of ownership through an act of will. o It might have no effect at all. o Or it might have some different effect entirely -- possibly various effects in diverse jurisdictions. In the USA, creative works (including software) published or generated directly by the Federal government are by law not covered by copyright, and thus are public domain ab initio. However, if the work was created by a non-government contractor, it became copyrighted upon creation, and nothing prevents the Feds from _owning_ such copyrights (e.g., as part of the deal with the contractor). Also, prior to 1978-01-01, it was possible to lose copyright protection in the USA through pilot error, e.g., by publishing the work without a valid copyright notice. (For example, it's probable that ATT UNIX 32V became public domain in that fashion, as indicated by the judge's preliminary ruling in the ATT v. UC Regents lawsuit. See: http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt) Beginning 1978, however, to bring US law in compliance with treaty, copyright has come into existence automatically whenever you put a (covered) creative work in fixed form -- and owners got a five-year grace period to fix any broken copyright notices. It's possible that some software became public domain through that mechanism, but not much -- and you'd potentially have to prove it, in the event of dispute. Other than that, it's a near-certainty that _no_ software of conceivable modern interest has yet reached the public domain: Not enough years have passed. Thus, if/when you see some package on the Net that's described as public domain, beware: That usually just means that the person writing that descriptions is dangerously ignorant of copyright law, and you incorporate such code into larger works at your peril. More at: http://linuxmafia.com/~rick/linux-info/public-domain -- BLINKResize your browser so the following line touches both margins!/BLINK HR WIDTH=75% Best Regards, Rick Moen, [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): I'm not surprised that there is no relevant caselaw, however, it's common to assume that placing (or dedicating) the work in (or to) the public domain is enough for the work to be in the public domain. You can assume it. Your assumption is most likely incorrect. You should be able to find caselaw involving a case where a work was improperly placed in the public domain (ie, the person dedicating it to the public isn't the copyright holder,) but as the US system is a law in action, you'll need to find a case where someone placed the work into the public domain, and then withdrew that placement and proceeded to sue people under it. That's a tall order. That is _not_ necessary in order for the notion to be doubtful. It pretty much suffices that no statutory mechanism whatsoever exists to enact that intention, and for the outcome to be both indeterminate and mostly likely jurisdiction-dependent. What duties of ownership? [Well, at least post 1968.] Sundry warranty issues. You always incorporate code into larger works at your peril. Not exactly: There is risk, and there is peril. When you use (e.g.) a third-party BSD-licensed work, you are relying on the creator having sufficient title that his permission grant can be relied upon, but that is usually a well-founded assumption. With code you come across that is described as public domain, statistically, you will find upon deeper examination that the person making that declaration simply isn't taking copyright issues seriously. I conducted my own study, for some weeks in 2000, of the packages in SourceForge.net in the public domain licence category. This was because I was curious about whether the laxity, ownership problems, and outright failure to mention significant copyright claims was widespread in that entire category, after noticing it among PalmOS packages so designated that I came across while assembling my collection of all known open-source PalmOS software (http://linuxmafia.com/palmos/). To my dismay, I found that _most_ of that SourceForge.net category (out of some hundreds of packages) were multi-author works with obvious copyright encumbrances that had no matching permission statements from some of those authors. I brought this problem to the SourceForge.net management staff at VA Linux Systems, Inc. They acknowledged the problem (I presented examples), but took no action, feeling that the amount of software in question wasn't large enough to merit their time and trouble. My point is that, in my experience, a claim that a package is public domain has a high statistical correlation with title problems, which people making derivative works must beware of. Regardless, the standard sane aproach, is to assume that a This work is placed into the public domain statement is equivalent to a relieving yourself of the protection availed to you by copyright law, or equivalent to a widely permisive irrevocable license.[1] 1:http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html I'm glad the uncredited author has an opinion. Everyone should have a few -- and festooning Web pages with them as he has done is a perfectly fine pastime that no doubt reduces the rate of delinquency on our streets. But _relying_ on that would be about as perfect an example of idiocy as I've seen recently -- though I suppose there's always room for improvement in that area. -- Cheers, The shortest distance between two puns is a straightline. Rick Moen [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): The absense of a statutory mechanism isn't really at issue here. There are hosts of contractual forms for which there is no applicable statute.[1] The US legal system is not statute bound, as it is a common law system. Allow me to reiterate, then, what I believe I've already mentioned once before: There is also an absence of caselaw. Sundry warranty issues. Warranty isn't a duty of ownership. Warranty is a duty of a provider, distributor or retailer. You seem to be being willfully dense: If I put my name on a piece of software and it becomes publicly available in a lawful fashion and is claimed to have harmed someone, I am likely to face liability claims. For that purpose, it really doesn't matter who was the provider/distributor/retailer. In both cases, you have the a person who is presumably the copyright holder making the statement. If they're not the copyright holder, you have a problem. If they are, you're ok. You seem to be being willfully dense: As I've already clarified, murky title and permission problems correlate strongly in my experience to assertions of public domain status -- as is not the case with statements of BSD-licensing. That's a problem with people making false statements, rather than a problem with the concept of placing a work into the public domain itself. You seem to be being willfully dense: As I've already clarified, those erroneous statements correlate strongly in my experience to assertions of public domain status -- as is not the case with statements of BSD-licensing. What seems to be occuring here is a conflating of facts and law. This allegation is incorrect. I have made assertions in both realms, but have made them separately. If you wish to more clearly understand what I wrote, I suggest you re-read. -- Cheers, The genius of you Americans is that you never make Rick Moen clear-cut stupid moves, only complicated stupid moves [EMAIL PROTECTED] that make us wonder at the possibility that there may be something to them that we are missing. --Gamel Abdel Nasser
Re: Some licensing questions regarding celestia
Quoting Branden Robinson ([EMAIL PROTECTED]): Okay. I mostly concur with Don Armstrong's challenges to this, but I have one more add. IANAL, but, when I posted my analysis of the matter to the OSI license-discuss mailing list, OSI general counsel Larry Rosen replied You've answered it beautifully. Give this guy a law degree! (http://www.mail-archive.com/license-discuss@opensource.org/msg06191.html) (Alas, that doesn't get me a law degree, but it means someone generally considered a well-informed copyright lawyer thinks I was on-target.) In the U.S., copyrights are completely negotiable instruments. That is, I can completely transfer my interest in them to another party (this is not so much the case in droit d'auteur jurisdisctions). Surely anything that I can sell, or give away to another party under contract, I can abandon altogether. Certainly you can abandon it. But that does not cause the _title_ to cease to exist. Remember: Public domain creative works are those whose copyright title has either lapsed, become invalid (pre-1978), or were non-copyrightable ab initio (e.g., creative works published or generated directly by the Federal government). There is a difference between a piece of property whose ownership is up for grabs and one that has ceased to exist. If it's not the latter, then it's not public domain (by definition). -- Cheers, The shortest distance between two puns is a straightline. Rick Moen [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): We've established that. I maintain that the absence of caselaw is merely attributable to the difficulty of finding an actionable claim. Thus, you have an opinion. You maintain that it's because dedicating a work to the public domain is meaningless. This I did not say. It would do much to advance your case if you would put forth an argument delineating why a work properly dedicated to the public domain would be meaningless, or at least devoid of the commonly understood meaning. I have no intention of supporting an assertion I never made. My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. That is an opinion, with no known support in law. I'll try to be clearer: The facts surrounding works dedicated to the public domain is, frankly, uninteresting to me. I really only wish to discuss the law regarding them. That is a useful ambition. Pity that there is no caselaw, and no specified mechanism in statutes for an extant, unexpired copyright to be destroyed by the owner. If you hear of relevant case citations, I will be very interested to see them. -- Cheers, I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, [EMAIL PROTECTED] denigrate means 'put down'. -- Bob Newhart
Re: Some licensing questions regarding celestia
Quoting Nathanael Nerode ([EMAIL PROTECTED]): Have you heard of the common law? Oddly enough, I can't help noticing that your caselaw citations are missing. But Don Armstrong has a point: nobody but the copyright holder has standing to sue. If a court was convinced that the copyright holder had lost his right to sue by making a public domain dedication, then effectively the work *would* be in the public domain. This assumes that the copyright holder has lost his right to sue (and, moveover, any successors in interest). And where are you determining that, please? As mentioned, I've seen no caselaw citations -- most likely because none exist. My best guess based on a pointer on OSI license-discuss[1] to some halfway relevant cases (Micro-Star v. Formgen Inc., 154 F.3d 1107, 9th Cir. 199 -- and Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104, 9th Cir. 1960) is that voluntary copyright abandonments (such as public domain dedications) _may_ (if adjudicated to be effective) merely create a defence against infringement claims by the person making that declaration (equitable estoppal), leaving unclear whether that defense would be effective against successors in interest. Or not. The question does not seem to have been adjudicated. So, what do you recommend for someone who really *wants* to put something in the public domain? Do you intend that as a real, non-rhetorical question? If so, I recommend BSD licence with no advertising clause (or MIT/X). I mean, why would you _not_ want the shield against warranty claims? And if that person objects that, no, he really, really wants to destroy his copyright and make the code be actually (or at least effectively but for certain so) public domain, then I would advise him that it's an imperfect world, and nobody knows how to do that without the risk of creating very troublesome legal questions for the remaining duration of the copyright term. If you really think that this is a serious problem, have you contacted Creative Commons (http://www.creativecommons.org), who promote public domain dedication? Oddly enough, a UK acquaintance of mine (from OSI license-discuss) was in contact with several of the notables (including Prof. Lessig) whose names are cited as founders, to see if they endorsed such site contents as the Public Domain Dedication at http://creativecommons.org/licenses/publicdomain/ . He reports[2] that they do not, and apparently the matter is the subject of some controversy. I have not yet inquired with them directly, though I may get around to doing so. No such thing. Warranties are incurred by distribution and stuff like that, not by ownership. (Please note that my use of the term owner was intended to connote author or issuer, in this context.) If you are trying to assert that being the identifiable author of a piece of code that is claimed to have done harm would not subject you to liability claims, I would suggest you are mistaken. [1] http://www.mail-archive.com/license-discuss@opensource.org/msg06439.html [2] This was in a related discussion, which may have been on the mailing list, on sci.crypt, or on talk.politics.crypto, but I'm unable to find the reference at the moment. -- Cheers, Rick Moen Age, baro, fac ut gaudeam. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): On Tue, 02 Sep 2003, Rick Moen wrote: This I did not say. It's either meaningless or meaningfull. I can't quite reconcile the idea of it being both. I didn't say that, either. Don, if you're going to be spending the rest of the month inviting me to justify statements I did _not_ say, it's going to be a very long month. Moreover, I usually jettison from my life as a hopeless time-waster anyone who attempts it about three times in any fairly short period. Your count, in that area, now stands at two. If you're trying to say I see no need to tell you what I'm trying to say. Having reviewed my prior posts, the semantic payloads thereof should be amply clear. My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. That is an opinion, with no known support in law. It follows directly from contract law. The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. I think I'm beginning to see the problem here. Nope, you're seeing only one of two independent arguments. Please see below: Dedicating a work to the public does not require that the copyright be destroyed. (1) If there's a copyright title extant, then by definition the article is not public domain. That is incontrovertible. (2) Separately and aside from that, the effect of a public domain dedication is thus far legally indeterminate, for reasons previously cited. -- Cheers, Don't use Outlook. Outlook is really just a security Rick Moenhole with a small e-mail client attached to it. [EMAIL PROTECTED]-- Brian Trosko in r.a.sf.w.r-j
Re: The GPL and you
Quoting Daniel Isacc Walker ([EMAIL PROTECTED]): It appears that way .. However, something else comes to mind. Some PHP applications are closed source. My code would facilitade a close source PHP script to _use_ talkfilters . But that's not a violated either, even if I keep it closed? I'm not sure I understand that last sentence. Let's recap: You've written some PHP code supporting PHP access to a GPLed library, talkfilters. (You haven't specified what licence you have placed your PHP glue code under.) You are absolutely free to issue your PHP glue code under -- the code you're asking about -- under any licence whatsoever. A person who uses that code does not thereby violate any licence. (Neither the GPL nor the PHP licence regulates software usage.) Third parties who assemble the three codebases (the PHP interpreter, your code, and talkfilters) apparently thereby create a derivative work that is in licence conflict. _Their_ redistribution of the three codebases together would thus seem to constitute (technically) copyright violation, to which the talkfilters author could in theory object. Ok, so the GPL doesn't apply unless I distribute something. Let's be more precise, please: If you accept someone else's work subject to the terms of GPLv2, then your subsequent redistribution of that work (or one that is derivative of it) entails obligations -- about which you can read in the GPL text. Then it only applies if I create a derivative work, being source or binary? Once again: Read the GPL. If you simply distribute your own glue code, you incur no obligations from anyone else's licensing. (Why would you?) If you merely put your glue code on (e.g.) the same CD-ROM as talkfilters and/or the PHP interpreter, and redistribute that, the combination imposes no obligation on you: As GPLv2 puts it, that is mere aggregation. If you distribute your glue code linked with the PHP interpreter and talkfilters, that derivative work's distribution (given that it is in licence conflict) very minimally violates the talkfilters author's copyright. He could theoretically object. Clearer? -- Cheers, Dogs may have kept us company on the hunt, but it was Rick Moen the cats who insisted we invent houses and discover fire. [EMAIL PROTECTED]-- Khiem Tran
Re: The GPL and you
Quoting Daniel Isacc Walker ([EMAIL PROTECTED]):
License conflict? Like it's not illegal but it's a taboo?
No. {sigh}
Once again: Read the GPL.
Under GPLv2 clause 6, your permission to redistribute a covered work
(including derivative works) is conditioned on your imposing no further
restrictions on recipients than GPLv2's own terms. The PHP licence
includes one term that trivially restricts users (regarding the names
of their projects). Thus, derivative works that incorporate PHP and
GPLv2-licensed code have requirements that conflict: We speak of such
works as being in licence conflict.
Since your permission to distribute GPL-encumbered derivative works (such
as your PHP glue code linked to the PHP interpreter and to the
talkfilters library) rests on your NOT imposing further restrictions
beyond those of GPLv2, since you cannot avoid one such restriction, you
may not distribute the derivative work. Your doing so -- or anyone else
doing so who received his copy of talkfilters subject to GPLv2[1] --
constitutes (technically) the tort of copyright violation against the
talkfilters author.
By contrast, distributing your PHP glue code by itself violates nobody
else's rights[2]. Distributing talkfilters by itself violates nobody's
rights. Distributing the PHP interpreter by itself violates nobody's
rights. Distributing all three of them on the same CD-ROM violates
nobody's rights (mere aggregation).
Somebody _using_ any or all of those codebases violates nobody's rights.
(Neither GPLv2 nor the PHP licence regulates code usage.)
[1] You can receive and use a codebase that's GPL-licensed without
accepting that licence: If you've lawfully received any piece of
programming code, you have certain implied rights by statute, including
the right to run it. However, as GPLv2 clause 5 points out, nothing
then gives you the right to redistribute or to create derivative works,
rights that are reserved to the copyright owner by default.
[2] Assuming your permission grant for that code allows that. You've
not mentioned what licence terms you specify for that code.
--
Cheers,Cthulhu loves me, this I know; because the High Priests tell me so!
Rick Moen He won't eat me, no, not yet. He's my Elder God, dank and wet!
[EMAIL PROTECTED]
Re: The GPL and you
Quoting Daniel Isacc Walker ([EMAIL PROTECTED]): That's interesting. In the Wine community the majority opinion is that the Win32 API and data structures are not copyrightable. My opinion is derived mainly from my work with Wine. Since the Win32 API is so vast (100's of functions and structures) I would think if header files are copyrightable then the Win32 headers must be copyrighted by Microsoft. As far as I know, Microsoft hasn't attacked Wine for using the API . I could be mixing two distinct ideas here. Copyrighting a header file could be completely different from copyrighting an API .. Ever though they seem like the same thing. I think you may have a point. During the ATT vs. UC Regents lawsuit, part of UC's defence against charges that BSD incorporated ATT UNIX 32V's header files was that was functional code required for compatibility, so that code written for 32V could run on BSD without having to replicate all the header files' definitions and declarations. Copyright law has traditionally given considerable leeway for compatibility requirements, and generally only expressive code qualifies for copyright coverage, not functional code. I would tend to think that the talkfilters data structures and API are not copyrightable. (But IANAL, TINLA.) -- Cheers, find / -user your -name base -print | xargs chown us:us Rick Moen [EMAIL PROTECTED]
Re: A possible GFDL compromise
Quoting Brian T. Sniffen ([EMAIL PROTECTED]): I don't think that's quite true: if the GPLv3 were to say, for example, that anyone using the code for an Application Service Provider would have to distribute code to all customers or users... that's not useful to me. I would not be able to usefully implement the benefits of others' code. Thus, the copyleft would fail there too: somebody effectively would have written something proprietary out of my code. I think you're completely missing my point: That would be an example of a _more_ restrictive licence, which any recipient could (and would) avoid by electing to receive the code under GPLv2, instead. The main developers could then, for the next version, either change the terms to pure GPLv2 or (if all who own the rights agree) to some other suitable successor to GPLv2. Thus, such a hypothetical instance of the FSF going haywire would (again) do the coders' interests no harm. Which was my point. -- Cheers, I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, [EMAIL PROTECTED] denigrate means 'put down'. -- Bob Newhart
Re: The GPL and you
Quoting Daniel Isacc Walker ([EMAIL PROTECTED]): I made a PHP extension for the talkfilters library. It's not a big achievement, it's maybe 100-200 lines of code .. I've run into a license problem . PHP is under the PHP license and the talkfilters library is under the GPL . That would create a licence conflict if you were redistributing a derivative work consisting of the talkfilters lib linked to the PHP interpreter -- but you're not. What this means is that my software is automatically GPL'd even though it has no GPL'd source in it. No, that's incorrect. _You alone_ are legally empowered to state licence terms for your code. That's what we mean by copyright ownership. The GPL doesn't distinguish between linking and directly copying and pasting source code, or at least not from my perspective. And? You seem to have some misconceptions about the GPL's copyleft provision, what its effect is, and in what circumstances it applies. In order: 1. The copyleft provision (GPLv2 clauses 3, 6, and 7) state what rights must be conveyed to derivative works during redistribution of the code as part of those derivative works. 2. Those rights must not be less than those specified in GPLv2. 3. The obligation is triggered by the act of redistribution, not usage. (See also: scope of GPLv2 detailed in clause 0.) It can be satisfied by one of the methods specified in clause 3. The problem is that , with my understanding, because my code gets incorporated directly into PHP that means that PHP automatically becomes GPL'd. Your understanding is incorrect. Just _think_, please: How _could_ it possibly be correct? That would constitute involuntary seizing of the PHP interpreter authors' property (their copyright title). That doesn't happen. Under copyright law, if you perform an act in violation of someone's copyright, you have committed the tort of copyright violation. In extreme cases, a judge might force you to pay damages in addition to ceasing the violation, but there is zero likelihood that any of the parties to that dispute would be ordered to grant a licence to his (copyright) property against his will. So I tried to get the talkfilters developer to switch to the LGPL Why? Are you seeking to... 1) Link a GPL-covered work (talkfilters) to a PHP-licensed work (the PHP interpreter v. 4 or later), and 2) Redistribute the resulting derivative work? Based on your description, that does NOT appear to be the case. Therefore, you would seem to be trying to solve a non-existent problem. I shouldn't have written anything, I suppose. Is that the power of the GPL? The GPL has the power to stop open source developers from developing. That doesn't make any sense to me. It doesn't make any sense to me, either -- but not in the sense you intend. You appear to have fundamentally misunderstood how licensing works. Perhaps you should read the text of GPLv2, the text of the PHP Licence v. 3.0, and the Copyright Act, contemplate the meaning of derivative work in the latter, and work out how licensing works when people re-use code. I like the idea of the GPL, but maybe we need to be a little more pragmatic. Or maybe people need to be educated with respect to the GPL. Well, the latter for sure. ;- But, actually, the very same considerations apply for combinations of code in proprietary licensing. The GPL isn't always the best license. No doubt. But that appears to be irrelevant to the matter at hand. -- Cheers, I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, [EMAIL PROTECTED] denigrate means 'put down'. -- Bob Newhart
Re: The GPL and you
Quoting Mark Wielaard ([EMAIL PROTECTED]): There is: 4. Products derived from this software may not be called PHP, nor may PHP appear in their name, without prior written permission from [EMAIL PROTECTED] You may indicate that your software works in conjunction with PHP by saying Foo for PHP instead of calling it PHP Foo or phpfoo Which seems a (small) restriction of your rights regarding distribution of derived works that is not in the GPL. Ah, you're right. -- Cheers, Why is the alphabet in that order? Is it because of that song? Rick Moen -- Steven Wright [EMAIL PROTECTED]
Re: The GPL and you
Quoting Daniel Isacc Walker ([EMAIL PROTECTED]): I use talkfilters data structures and API in my code. Is that a derivate work? Everything else I've read indicates that it isn't.. Copyright doesn't cover ideas. But I believe you're asking the wrong question. The reason Debian doesn't _redistribute_ GPLed PHP extensions is that they're believed to be in licence conflict (when linked with the PHP interpreter). But as long as you're NOT seeking to create something that everyone will feel comfortable redistributing, you're fine. Moreover, all that's a change of subject from what you were saying originally: You were saying your software is automatically GPLed. No. You were saying use of your PHP extension with the PHP interpreter automatically GPLs the PHP interpreter. _No._ You were saying you have to release the source, but no one can use it. No. -- Cheers,Remember: The day after tomorrow is the third day Rick Moen of the rest of your life. [EMAIL PROTECTED]
Re: GPL licenses and the any later version phrase (was: Re: A possible GFDL compromise)
Quoting Mathieu Roy ([EMAIL PROTECTED]): You always can retroactively change the license for your software. It's *too late* only if people who received your software before you change your license continue to distribute it. They can distribute it under your previous license, but only the previous versions, not the new, relicensed, version. Just because many people (not you) get confused about this matter, I'll point out that a copyright licence (such as GPLv2) attaches to an _instance_ of the covered code. The copyright holder (being entitled to generate as many diverse instances as he likes, and not needing to consent to any licence to use his property) can switch to a different licence (as to his code, not other people's that might be with it unless they also consent) through the simple expedient of issuing a new _instance_ with different terms. For that matter, nothing stops him from having simultaneous instances in circulation with (e.g.) GPLv2, 2-clause BSD, and proprietary licence terms. People get tripped up by language: For example, they speak of a codebase as having a particular licence. E.g., SourceForge [meaning Alexandria] v. 2.5 was under GPLv2 or later. We say that because it's precise enough for most purposes, but it misleads people into thinking of licensing as an essential property of the codebase. It would be more precise to say that _instances_ of that codebase are under GPLv2. Also, the verb relicense is a bit misleading: What really happens is that a new code instance emerges with a different licence. That's why software project once free can become proprietary, like SourceForge to name a famous one. VA Software, Inc. kept promising the release of Alexandria (SourceForge) 2.6 under GPLv2, making a series of misleading press releases on the subject, while releasing proprietary, non-redistributable successors in an attempt to build a proprietary software business based on Alexandria (whose copyright it owned) and the sundry open-source packages that with it comprise the SourceForge suite. Eventually, it became obvious that the company would never deliver on those promises, and multiple groups forked (variously) v. 2.5 or pre-2.6 CVS checkouts. Those have started to merge after primary Alexandria author Tim Perdue's VA-related legal entanglements expired six months following his layoff, when he released GForge (http://gforge.org/) in conjunction with Christian Bayle of the Debian-SF project and others. -- Cheers, I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, [EMAIL PROTECTED] denigrate means 'put down'. -- Bob Newhart
Re: A possible GFDL compromise
Quoting Branden Robinson ([EMAIL PROTECTED]): On Thu, Aug 28, 2003 at 02:44:57AM +0100, Scott James Remnant wrote: Ya know, I was always sure that or (at your option) any later version header people blindly add to their source would turn out to be a Bad Thing. Imagine... GPLv3 with Invariant Sections... Microsoft take Linux and add a bunch of code to it, maybe something really handy like the ability to run Win32 apps natively. Won't happen with Linux -- please review the license applied to the Linux kernel. It's missing a certain phrase. ...or (at your [the recipient's] option) any later version. The fact that your refers to the _recipient_ means that Scott's worst-case scenario of FSF issuing a screwball GPLv3 is not a serious concern _even_ for work whose licence grants include the quoted phrase. For example, consider the effect of an invariant-sections GPLv3 on Samba, whose GPLv2 licence grant includes the quoted phrase. Recipients of extant Samba versions would then have the _option_ of accepting Samba instances under silly licence terms -- or GPLv2 ones. Forks could be launched under the silly terms, but who'd want to? And the next official Samba release after that would probably omit the option phrase -- while not accepting contributions under those other terms. The same analysis applies to all other codebases that use the option phrase. And that, in turn, provides FSF a strong incentive not to fool too dramatically or hastily with GPL direction. (Indeed, they've been very cautious.) (See also: Affero Licence, http://www.affero.org/oagf.html ) -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED]
Re: Licence oddity in Securing Debian Manual
Quoting Brian T. Sniffen ([EMAIL PROTECTED]): True. But I read the phrase This document... explicit permission as saying that Appendix H has a different copyright-owner, and has been separately distributed under the GFDL1.2. The whole work is under the GPL2, as said at the beginning. Securing Debian Manual authors Alexander Reelsen, Javier Fernández-Sanguino Peña stated in the front matter that they were issuing _their_ work under GPLv2 or later. Whether Mr. Ratti did or not strikes me as, unfortunately, somewhat ambiguous: Ironically for that claim of explicit permission, _lack_ of explicitness is precisely the problem: Did he explicitly issue this instance of the inclusion under GPLv2 or later, under GFDL with a licence exception, or something else? (something else might not make sense, to borrow your words, but cannot be ruled out unless you're willing to take on faith that derivative-work licensing can be assumed problem-free -- which seems a stretch. ;- ) Fortunately, as you point out, clarification from Mr. Ratti should fix this in a hurry. -- Cheers,He who hesitates is frost. Rick Moen -- Innuit proverb [EMAIL PROTECTED]
Re: relicensing dual-licensed works to single license.
Quoting Mark Rafn ([EMAIL PROTECTED]): Here's a thought: Dual-licensed works can generally be forked to be under either license. Doesn't this mean that the maintainer (or any distributor) of a GPLv2 or any later version work could unilaterally re-release it under pure GPLv2 without consulting any contributors? I think so: He could then use that as the basis (if I understand correctly) for a pure GPLv2 fork. Other people, encountering that but preferring a code instance under GPLv2 or any later version would need to seek out an upstream version and eschew his additions. -- BLINKResize your browser so the following line touches both margins!/BLINK HR WIDTH=75% Best Regards, Rick Moen, [EMAIL PROTECTED]
Re: A possible GFDL compromise
Quoting paul cannon ([EMAIL PROTECTED]): How about this scenario: 1- A hostile group gets control of the FSF (treachery, trickery, bribery, lawsuits, ...?) 2- They release a new version of the GPLv4, which states that this software should be treated as released into the public domain Yes, this (less restriction) is the only GPLv3 scenario that could arguably injure the interest of coders specifying GPLv2 or any later version permission grants: Such covered code then becomes free / open-source but non-copyleft, against its owners' intent. Most would call that outcome (1) astronomically unlikely and (2) not very harmful, anyway. People worried about that, or just wanting to handle licence evolution manually through new releases with changed terms (caveat: necessitating agreement among all copyright holders affected) will eschew the or any later version clause. Those wanting FSF to be able to fix licence problems (e.g., resulting from court decisions) without needing a unanimous accord among copyright holder will include it. -- Cheers,Send a policeman, and have it arrested. Rick Moen -- Otto von Bismarck, when asked what he [EMAIL PROTECTED] would do if the British Army landed.
Licence oddity in Securing Debian Manual (was: Proposed addition to Debian web pages re: GNU FDL)
Quoting Nathanael Nerode ([EMAIL PROTECTED]): I propose something like the following as an addition to the Debian web pages, at the bottom of http://www.debian.org/intro/free. I offer this up for revision and use by the Debian community, or anyone else. Motivation: some people seem to wish to remain in denial about the project's decision on this matter. This will help their psychological problem. ;-) This reminded me of something I noticed earlier today. The Securing Debian Manual at http://www.debian.org/doc/manuals/securing-debian-howto/ has in its front material the following: Copyright Notice Copyright © 2002, 2003 Javier Fernández-Sanguino Peña Copyright © 2001 Alexander Reelsen, Javier Fernández-Sanguino Peña Copyright © 2000 Alexander Reelsen Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Public License, Version 2 or any later version published by the Free Software Foundation. It is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY. All well and good, so far. Appendix H of the Manual, in http://www.debian.org/doc/manuals/securing-debian-howto/ap-chroot-apache-env.en.html , has: This document is copyright 2002 Alexandre Ratti. It has been released under the GNU-FDL 1.2 (GNU Free Documentation Licence) and is included in this manual with his explicit permission. Doesn't that create a licence conflict? -- Cheers,A: No. Rick Moen Q: Should I include quotations after my reply? [EMAIL PROTECTED]
Re: non-disclosure agreement
begin Ian Zimmerman quotation: 1/ Is my (literal) reading of the document essentially correct, or is my assumption that I can read English just so much hubris? Your understanding matches mine. You are _very_ wise to be cautious about what you sign. 2/ Will signing this agreement prevent me from contributing to Debian in the future? If enforced, it would seem to do so. 5/ If you were personally faced with this situation, what was (or would be) your reaction? (You can reply to this part privately if you prefer). If I were a coder faced with such a requirement, I would do one of the following: (1) Cross out the offending clauses, and politely call that to the attention of the Personnel Dept. as a counter-offer, or (2) Negotiate the replacement of that language with some acceptable substitute. In either case, I would be prepared for the possibility of leaving imminently to seek employment at a more-enlightened company, if need be. (As it happens, my employer did, to my particular disgust, require a similar clause. I was willing to sign it, in part, because I do not code for a living. Also, the firm was so much better than the one I just left, in every other respect, that I wasn't going to be picky. But I was deeply disappointed to see it at an otherwise progressive firm.) -- Cheers, Reality is not optional. Rick Moen -- Thomas Sowell [EMAIL PROTECTED]
Re: Source code with no (explicit) licence
begin Joseph Carter quotation: Your gut feeling is wrong. ahem To reiterate: My gut feeling is that a non-licence remains no licence. My idle afterthought that it would (if proposed) end up in non-free is no doubt wrong, however. It would, as I was suggesting as the main thrust of my argument, have no clear licence. Without a license, the program cannot be distributed at all. Other than by the copyright holder, you presumably mean. DJB knows this. He likes it that way, apparently. I believe I _just_ got through saying that. Thank you for your comments, anyway. -- Cheers, Teach a man to make fire, and he will be warm Rick Moen for a day. Set a man on fire, and he will be warm [EMAIL PROTECTED] for the rest of his life. -- John A. Hrastar
Re: Source code with no (explicit) licence
begin David Starner quotation: There's no legal question here, no arguments; that's what the law says. The question, if any, is what licence might be created implicit in the _circumstances_ (see two paragraphs down) of Bernstein's distribution. Although I presumed to raise the issue on debian-legal, my concern is not whether Bernstein's whack-assed software is acceptable to The Debian Project, but rather with whether I'm being fair in my ftp-daemons survey, especially since I am rather infamously hostile to the man's softwarei[1], having had the gruesome experience of administering a large qmail site at $PRIOR_FIRM. So: Within my ftp-daemons list, I am making every effort to state accurately what licence applies to each entry. And, with Publicfile, I have the difficulty of summarising what licence rights apply, by default action of local law, absent any statement of licence. Some of the resulting questions are unclear to me, even in USA copyright law, let alone elsewhere: Does Bernstein's posting the file to an unrestricted public ftp or Web site create implicit general licence to retrieve the file? I would guess so. To compile it? I would guess so. To modify it? I would guess not. To redistribute it with or without modification? I would guess not. But I know of no statutory or case law that _says so_, and I am not a copyright attorney. My reasoning is based on a plausibility argument, alone, and nothing more solid. Perhaps you or Joseph Carter _are_ copyright attorneys and/or know the applicable law by heart. If so, I'd be glad to be enlightened.[2] If not, those would seem intriguing questions and possibly worthy of thought. Mine if not yours. Not for DJB's sake, who can proceed immediately and directly to the ecclesiastical place of eternal torment[3], as far as I'm concerned. [1] I.e., I wrote http://crackmonkey.org/faq.html#ANSWER23 . [2] Indeed, before posting, I slogged through all 24 months of list archives. Neither of you gentlemen has previously addressed that question, though prior discussions of I hereby put this software in the public domain licencing did occur and was slightly relevant. On those matters, I _do_ happen to know the ruling caselaw (CCNV vs. Reid), and was surprised to not see it cited, here. See: http://caselaw.findlaw.com/scripts/getcase.pl?court=usvol=490invol=730 . [3] And his little code, too. -- Cheers, Teach a man to make fire, and he will be warm Rick Moen for a day. Set a man on fire, and he will be warm [EMAIL PROTECTED] for the rest of his life. -- John A. Hrastar
Re: Source code with no (explicit) licence
begin Raul Miller quotation: That said, this is a bit off-topic for this list. If so, then numerous licence/legal questions about packages not proposed for Debian over the past 24 months (and about sundry licences in the abstract) have been likewise off-topic. You might find this thread useful if future software authors post here, asking about an ITP for their no-licence software: It might help list participants explain why an explicit licence is necessary, and what happens in its absence (under USA law, at least). The USA legal questions have been settled to my satisfaction. My thanks to you and David Starner. -- Cheers, Teach a man to make fire, and he will be warm Rick Moen for a day. Set a man on fire, and he will be warm [EMAIL PROTECTED] for the rest of his life. -- John A. Hrastar
