Re: Hypothetical situation to chew on
I wrote: In contrast, pre-1986 (I think) US law specified that works published (== deliberately distributed to the public by their authors) without a copyright statement went into the public domain. Michael Edwards wrote: 1976; but otherwise basically correct (IANAL) Checked this one again. The elimination of the notice requirement is present in the 1988 Berne Convention Implementation Act. Under the 1976 Act, omission of notice could still result in the work rising into the public domain. Unlike under the 1909 act, errors in name or date on the notice did *not* put the work into the public domain. Neither did compilation situations where the compilation copyright notice was present, I believe. Nor did unauthorized publication without notice. However, deliberate total omission of copyright notices still did. This was changed by the BCIA in 1988. :-P -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Hypothetical situation to chew on
Michael Edwards wrote: If one wants to remove ambiguity about the copyright status of small contributions to a joint work, one could require either assignment of copyright to the primary holder or formal placement into the public domain, One of the very unfortunate side effects of the Berne Convention Implementation Act of 1988 (and the reason I think it is gravely flawed) is that there is now no clear way, in the United States, for an author to deliberately place a work into the public domain. Previously deliberate publication without copyright notice was sufficient. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Hypothetical situation to chew on
I wrote: In contrast, pre-1986 (I think) US law specified that works published (== deliberately distributed to the public by their authors) without a copyright statement went into the public domain. Michael Edwards wrote: 1976; but otherwise basically correct (IANAL) Checked this one again. The elimination of the notice requirement is present in the 1988 Berne Convention Implementation Act. Under the 1976 Act, omission of notice could still result in the work rising into the public domain. Unlike under the 1909 act, errors in name or date on the notice did *not* put the work into the public domain. Neither did compilation situations where the compilation copyright notice was present, I believe. Nor did unauthorized publication without notice. However, deliberate total omission of copyright notices still did. This was changed by the BCIA in 1988. :-P
Re: Hypothetical situation to chew on
Michael Edwards wrote: If one wants to remove ambiguity about the copyright status of small contributions to a joint work, one could require either assignment of copyright to the primary holder or formal placement into the public domain, One of the very unfortunate side effects of the Berne Convention Implementation Act of 1988 (and the reason I think it is gravely flawed) is that there is now no clear way, in the United States, for an author to deliberately place a work into the public domain. Previously deliberate publication without copyright notice was sufficient.
Re: Hypothetical situation to chew on
On Thu, 6 Jan 2005 09:54:54 +0100, Batist Paklons [EMAIL PROTECTED] wrote: On Wed, 5 Jan 2005 22:03:44 -0500, Nathanael Nerode [EMAIL PROTECTED] wrote: Let me clarify. :-) Let me muddify. :-) I have few complaints with the treatment of material for which the authors *claim* copyright. My complaint is about material distributed willy-nilly by its authors with *no* copyright statements and *no* licensing information. Clearly the authors didn't intend all rights reserved, but that's what current law assumes. Actually, if it's something like a patch to an existing work, offered with the implicit understanding that it would be applied and become part of the upstream, then at least two defenses are available if copyright infringement is ever claimed: de minimis (especially with regard to stuff that is almost purely functional, since it's only the creative expression that's copyrightable) and implied license / promissory estoppel. The latter is evidently less available in civil law countries, and probably couldn't be used in any jurisdiction to claim that the maintainer has the authority to change license terms. In contrast, pre-1986 (I think) US law specified that works published (== deliberately distributed to the public by their authors) without a copyright statement went into the public domain. 1976; but otherwise basically correct (IANAL). See http://www.publaw.com/1976.html for some of the consequences; if an author limited the scope of the license under which a work was first published (say, in a magazine), and the publisher failed to tag her work with a copyright notice in her name (separated from the publisher's copyright notice for the magazine as a whole), then it would fall immediately into the public domain. Note that this email message is subject to copyright, and can't legally be reprinted without permission (except for fair use, such as quotation rights). Under pre-1986 US law, it would be public domain, because I didn't affix a copyright notice. Most non-defamatory uses of your e-mail in the US would probably fall under an implied license to redistribute and archive, since that's the prevailing practice on public mailing lists. This change has, frankly, made a freaking mess. This is why projects have to have statements like By submitting a patch, you agree to license it to us under (license of choice). Under the old law, submitting a patch of your own authorship to a public bug tracking system would be publishing it, and if you did so without a copyright notice -- public domain. Having such a statement helps establish what the prevailing practice is in a given forum, in order to reach an implied license; but copyright assignment and grant of right to sub-license can't be found without a binding written agreement, and browse-wrap won't cut it. That's one of the reasons that I disapprove of the FSF's claims that the GPL is not a contract; accepting submissions to a GPL project without obtaining good evidence at least of acceptance of the GPL is not a good idea. If you buy that modifying and creating a patch are strong evidence of acceptance of an offer of contract under the GPL, then it's not so bad -- as long as the license terms are unalterable. But the GPL lacks any language that would make the maintainer an agent of the copyright holder for the purpose of issuing a license under new terms, and I am rather skeptical even of the version 2 or later formula. The FSF recommends copyright assignment or release into the public domain to all GPL licensors, and insists on it for GNU projects, thereby dodging the question. I haven't thought the equivalent through for, say, BSD (not a contract, I think; a court might even call it release into the public domain, since the Planetary Motion court went out of its way to say that GPL release isn't) or MPL. But ultimately, a work with several copyright holders is -- and probably should be -- hard to relicense. As I understand US law (though my knowledge of it is just marginal), the publishing without copyright notice wouldn't make it public domain, but just not-enforceable. Very often in litigation, one would register an already (long before) published work, to be able to enforce it in the upcoming litigation. Registration is a formality separate from copyright notice, and now functions in the US primarily as an administrative determiner of provenance to which a court can kick back a question of fact when a person being sued for copyright infringement has plausible evidence that the copyright is no good. Nathanael had it right under the 1909 law -- no notice, no copyright. I am not sure about this, but as a defense (the 'no, I am not infringing your copyright'), it probably doesn't have to be registred, but to be sure you should ask a US lawyer. Registration establishes a rebuttable presumption of who wrote it when, and whether someone else owned it from the beginning under
Re: Hypothetical situation to chew on
Andrew Suffield [EMAIL PROTECTED] wrote: I grow tired of your endless habit of redefining every term in sight until it fits your whim, usually in defiance of your previous claims, reality, or just plain logic. This is a waste of my time. Go away. If anyone else on debian-legal agrees with Andrew's assessment, please let me know by private e-mail, preferably with a citation to something I actually wrote. I wouldn't wish to put more people to the trouble of editing their killfiles. Thanks. Cheers, - Michael
Re: Hypothetical situation to chew on
On Fri, Jan 07, 2005 at 09:26:16AM -0800, Michael K. Edwards wrote: On Fri, 7 Jan 2005 11:04:21 +, Andrew Suffield [EMAIL PROTECTED] wrote: On Thu, Jan 06, 2005 at 06:20:29PM -0800, Michael K. Edwards wrote: ... and was enacted in an environment where previously no property right in ideas or expression was widely recognized That's not accurate. You're dismissing the previous widely recognized property rights because they don't fit your notion of fair. That doesn't change the fact that they existed. They were just held by the publishers. No, I'm relying on legal historians' assessments of the regime prior to the Statute of Anne, Blaming somebody else for doing it doesn't make it valid. No, the fact that there was no property right in works of authorship in England prior to 1710 makes it valid Trivially false. snip all arguments derived from this absurd claim That's not a legal foundation, that's a cartel created at despotic whim. There's no difference. It made plenty of difference in the Donaldson case -- the court declined to find a common-law copyright prior to the Statute of Anne, precisely because despotic whim doesn't create law fit to be treated as precedent. It's one thing to say, in a common-law country, This previous law does not constitute a binding precendent on this court at this point in time. That's probably accurate at the time and completely irrelevant. Your argument was founded on There was never a previous law (because I didn't like it), which is nonsense. There was one and it was replaced. Ironically enough, trade secret is the only form of intellectual property that I cited which doesn't create an asset, in the sense that it doesn't create any tradable right like copyright or patent. Trade secrets are routinely traded in the US, by means of contracts and NDAs. No, the secrecy of trade secrets is maintained by means of these mechanisms. No difference there either. What part of trade secret law doesn't create a tradable right is confusing? The part where it's false, and you try to relabel 'tradeable' as something else just to weasel out of it. snip derived arguments again -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: Hypothetical situation to chew on
I doubt that anyone else thinks that there is a relevant and debatable issue in play here. Follow-ups to private mail, please. Andrew Suffield wrote: Your argument was founded on There was never a previous law (because I didn't like it), which is nonsense. There was one and it was replaced. No, it was founded on no previous law (in England) created a property right in authorship. Neither as a matter of statute nor as a matter of common law. You can call the Stationers' Company's charter and by-laws law if you like, but they didn't create a property right in authorship, nor even in publishership, any more than a cartel's agreement to divide up market territories creates a property right in ownership of those territories. And for the Nth time, the regime immediately previous to 1710 was 14 years of no legal restraints on printing and publishing whatsoever. What part of trade secret law doesn't create a tradable right is confusing? The part where it's false, and you try to relabel 'tradeable' as something else just to weasel out of it. Bah. I repeat: Like any other thing of value, unpublished knowledge may form part of a contractual exchange; but a tradable right in publicly disclosed knowledge, as created by copyright, patent, and trademark law, is a creature of statute, and trade secret law doesn't create such a thing. All it does is to extend the scope of enforcement of theft of unpublished knowledge from illegal means to improper means, and extend the penalties on receipt of stolen goods to include injunctive relief on their use in competing with the owner. Judges in the UK and US created trade secret law out of principles of equity, and legislatures codified it with few changes (at least in most states of the US) -- very different from copyright and (modern) patent, which are entirely creatures of statute. Trademark falls in between, in that there is a long history of the use of marks to discourage and detect counterfeit goods, as an aid in enforcement of criminal penalties for fraud; but the existence of trademark as a tradable property right is again a creature of statute. Cheers, - Michael
Re: Hypothetical situation to chew on
I grow tired of your endless habit of redefining every term in sight until it fits your whim, usually in defiance of your previous claims, reality, or just plain logic. This is a waste of my time. Go away. *plonk* -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: Hypothetical situation to chew on
On Fri, 7 Jan 2005 11:04:21 +, Andrew Suffield [EMAIL PROTECTED] wrote: On Thu, Jan 06, 2005 at 06:20:29PM -0800, Michael K. Edwards wrote: ... and was enacted in an environment where previously no property right in ideas or expression was widely recognized That's not accurate. You're dismissing the previous widely recognized property rights because they don't fit your notion of fair. That doesn't change the fact that they existed. They were just held by the publishers. No, I'm relying on legal historians' assessments of the regime prior to the Statute of Anne, Blaming somebody else for doing it doesn't make it valid. No, the fact that there was no property right in works of authorship in England prior to 1710 makes it valid, and the legal historians' assessments establish that fact. All English laws on publishing and printing had lapsed fourteen years earlier, and no cases were brought during that period in which anyone attempted to restrain a printer, on grounds of lack of ownership, from printing what he pleased. It was widely recognized, at the time of the 1774 Donaldson case as it is now, that the Stationers' Company scheme (extant on and off from 1557 to 1696) had been a system of censorship and trade restraint, not of property rights, and in particular had not created a property right in authorship separate from the ownership of individual copies. And before you say it -- yes, there is a difference between the two. That's not a legal foundation, that's a cartel created at despotic whim. There's no difference. It made plenty of difference in the Donaldson case -- the court declined to find a common-law copyright prior to the Statute of Anne, precisely because despotic whim doesn't create law fit to be treated as precedent. If you meant to say that all legal foundations are cartels created at despotic whim, I'm not going to follow you down that rathole. Ironically enough, trade secret is the only form of intellectual property that I cited which doesn't create an asset, in the sense that it doesn't create any tradable right like copyright or patent. Trade secrets are routinely traded in the US, by means of contracts and NDAs. No, the secrecy of trade secrets is maintained by means of these mechanisms. No difference there either. What part of trade secret law doesn't create a tradable right is confusing? Trade secret law entitles victims of breach of contract, breach of confidence, and industrial espionage to injunctive relief and, in some cases, monetary damages. It's pure tort law, not contract or property law. This being law we're talking about, there's a difference -- or did I wander into debian-if-I-were-king by mistake? Cheers, - Michael
Re: Hypothetical situation to chew on
On Wed, Jan 05, 2005 at 10:03:44PM -0500, Nathanael Nerode wrote: Note that this email message is subject to copyright, and can't legally be reprinted without permission (except for fair use, such as quotation rights). Under pre-1986 US law, it would be public domain, because I didn't affix a copyright notice. I'm not sure that reprinted is a meaningful characterization of the sorts of limits which are in effect. For practical reasons, your message probably was never printed in the first place. Likewise, you can't really prevent people from printing copies of the message. If someone does something seriously unreasonable with the message, then you'd have grounds for taking them to court. In other words: [1] People have some rights to use any copyrighted material that they have received legally -- regardless of what rights have or have not been granted to them. [2] Reasonable expectations play a part in the interpretation of copyright laws and licenses. This issue of implicit copyright is significant, but it's not quite as extreme as you've presented it. -- Raul
Re: Hypothetical situation to chew on
On Wed, 5 Jan 2005 22:03:44 -0500, Nathanael Nerode [EMAIL PROTECTED] wrote: Let me clarify. :-) I have few complaints with the treatment of material for which the authors *claim* copyright. My complaint is about material distributed willy-nilly by its authors with *no* copyright statements and *no* licensing information. Clearly the authors didn't intend all rights reserved, but that's what current law assumes. In contrast, pre-1986 (I think) US law specified that works published (== deliberately distributed to the public by their authors) without a copyright statement went into the public domain. Note that this email message is subject to copyright, and can't legally be reprinted without permission (except for fair use, such as quotation rights). Under pre-1986 US law, it would be public domain, because I didn't affix a copyright notice. This change has, frankly, made a freaking mess. This is why projects have to have statements like By submitting a patch, you agree to license it to us under (license of choice). Under the old law, submitting a patch of your own authorship to a public bug tracking system would be publishing it, and if you did so without a copyright notice -- public domain. As I understand US law (though my knowledge of it is just marginal), the publishing without copyright notice wouldn't make it public domain, but just not-enforceable. Very often in litigation, one would register an already (long before) published work, to be able to enforce it in the upcoming litigation. I am not sure about this, but as a defense (the 'no, I am not infringing your copyright'), it probably doesn't have to be registred, but to be sure you should ask a US lawyer. kind regards batist
Re: Hypothetical situation to chew on
On Wed, 05 Jan 2005 18:43:02 -0800 Josh Triplett wrote: I'm not referring to those who sell proprietary licenses to a separate version of the software; I'm referring to those who use a copyleft license and sell exceptions for people who want to link their proprietary software against that copylefted software. So you were thinking about libraries and the like, as I suspected... In that case I can understand the rationale behing this business model. In other cases, I find it hard... -- Today is the tomorrow you worried about yesterday. .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpUX3hhUJ3WY.pgp Description: PGP signature
Re: Hypothetical situation to chew on
On Wed, 5 Jan 2005 22:20:37 -0500 Glenn Maynard wrote: The only case where what you say holds is where the licensee purchasing the proprietary license would have otherwise used the GPL license and released source. Which case--encouraging companies to GPL source, or funding the further development of the work itself--is more beneficial is an open question, Well, I was referring to a situation like this, more or less... -- Today is the tomorrow you worried about yesterday. .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpCA9CdqK5nb.pgp Description: PGP signature
Re: Hypothetical situation to chew on
On Thu, Jan 06, 2005 at 12:21:06PM +0100, Francesco Poli wrote: On Wed, 05 Jan 2005 18:43:02 -0800 Josh Triplett wrote: I'm not referring to those who sell proprietary licenses to a separate version of the software; I'm referring to those who use a copyleft license and sell exceptions for people who want to link their proprietary software against that copylefted software. So you were thinking about libraries and the like, as I suspected... In that case I can understand the rationale behing this business model. In other cases, I find it hard... You're selling a licence to your app so that the recipient can modify and resell, but they don't want to GPL their changes. I probably wouldn't do it myself, but I can certainly envisage it as a possibility. - Matt signature.asc Description: Digital signature
Re: Hypothetical situation to chew on
On Wed, 5 Jan 2005 23:48:40 +, Andrew Suffield [EMAIL PROTECTED] wrote: On Wed, Jan 05, 2005 at 01:36:46PM -0800, Michael K. Edwards wrote: The classical forms of intellectual property -- copyright, patent, trademark, and trade secrets -- were developed to protect very different kinds of intangible assets. That's a myth, spread by a propaganda campaign run by large corporations over the past few decades. They want people to believe it so that they can claim moral authority for the continued protection of these assets. With regard to developments in the last two decades, extending the life and scope of existing copyrights in a way that benefits only a few corporate owners of entertainment properties, I largely agree. But I think you present a somewhat one-sided view of the European history of abstract property rights, and by implication of 19th and most of 20th century US and world history in this area as well. I'm no historian (and no lawyer), but I don't think the record's hard to read. At least in England and its colonies, the creation of statutory property rights in commercial applications of knowledge has fairly consistently been an improvement over the previous practice. There have been periods of backsliding and regulatory capture (as we face in the US today), but legislators and judges have generally done a better job of keeping an eye on the public interest than ministers and guilds. Granting limited protection to commercial enterprises involving originality, inventiveness, quality assurance, and organizational mastery is good public policy -- as long as the public interest is served by the encouragement of creative efforts, the eventual release of knowledge into the public domain, and reliable access to high-quality goods at reasonable prices. If the current state of law about software consistently fails these public interest criteria (as I believe it does), then perhaps we need new and better law, not anarchy. [snip] This process culminated in 1710, with the enactment of the Statute of Anne in the UK, marking the first form of copyright as we know it today. It permitted anybody to print anything, with certain restrictions designed to protect the revenue stream of the publishers (essentially the ones we have now, time limit 28 years). ... [snip] ... and was enacted in an environment where previously no property right in ideas or expression was widely recognized, and the only recourse available to authors was to demand that their authorized publisher seek enforcement of the limits of the royal grant on other publishers. See Donaldson v. Beckett 1774 (http://www.copyrighthistory.com/donaldson.html ), and in particular Lord Camden's review of the legal history of printing prior to the Statute of Anne. While I find Lord Camden's assessment that Glory is the reward of science, and those who deserve it, scorn all meaner views rather overblown, he puts the case well that no property right in authorship of a work once published could be found prior to 1710. Copyright was not designed to protect assets. It was designed to take them away. Rights of authors did not enter into it, nor was there any 'trade' of rights between publishers and the people (another popular myth). The purpose of copyright in its modern form was to grant the people the right to copy works, which they did not previously have. That just doesn't fit the history. The Statute of Anne created a legal foundation for an automatic exclusive right of publication, something that was previously subject to the whim of royal ministers. This right was transferable (and generally transferred) from author to publisher. To protect other publishers from inadvertent violation, a copyright registry was established. To protect the public from monopolistic price gouging, a judicial price review mechanism was detailed. To preserve public access to knowledge in the long run, copyright was made to expire after a maximum of 28 years from first publication, and to give authors a shot at an upside for works of lasting interest (and a second chance with another publisher if the first one didn't generate demand), copyright reverted to the author after 14 years, forcing a renegotiation of terms. The system was far from perfect, but it succeeded in creating a statutory property right where previously there existed only executive prerogative. It didn't so much grant or deny anyone the right to copy works; it recognized authors as the moral owners of their works, and granted them the right to authorize a particular publisher to make copies, within constraints motivated by public policy considerations. [snip] Patents follow a fairly similar story; they began as monopolies on a certain trade, prohibiting anybody else from competing with a specified person, this time created by the state rather than the churce, as a method of raising funds. Widespread abuse led to them being locked down in 1624 by the Statute of
Re: Hypothetical situation to chew on
Andrew Suffield wrote (in response to me): You imply that protecting intangible assets is an improvement, and that this was not done before, but neither of those are particularly accurate. No, I imply that an asset is a property right, and that the previous regimes didn't create property rights in abstract property -- at least as a matter of law, reasonably reliably and impartially. I consider that an improvement over anarchy and despotism, but YMMV. ... and was enacted in an environment where previously no property right in ideas or expression was widely recognized That's not accurate. You're dismissing the previous widely recognized property rights because they don't fit your notion of fair. That doesn't change the fact that they existed. They were just held by the publishers. No, I'm relying on legal historians' assessments of the regime prior to the Statute of Anne, in which the Stationers' Company (a cartel authorized by the Crown) exercised monopoly power and settled internecine squabbles via the Star Chamber. That's not my idea of widely recognized property rights, and was rejected as precedent by the Donaldson court. I refer you again to Lord Camden's eloquent summary in that case; he observes that the Statute of Anne was immediately preceded by some fourteen years of complete anarchy (or freedom if you like), and that publishers themselves brought with them their wives and children to excite compassion, and induce parliament to grant them a statutory security. (A real lawyer and historian's view may be found in William F. Patry's _Copyright_Law_and_Practice_; excerpt at http://digital-law-online.info/patry/patry2.html .) That just doesn't fit the history. The Statute of Anne created a legal foundation for an automatic exclusive right of publication, something that was previously subject to the whim of royal ministers. It did not do so in a vacuum. It replaced an existing system. It replaced anarchy following the lapse of the Stationers' Company's royal charter in 1694, which was preceded by royal prerogative and the 1681 bye-law of the Stationers' Company, preceded in turn by the Licensing Act of 1662 (focused on censorship rather than property rights). As Lord Camden pointed out with regard to the records of the Stationers' Company, Every man who printed a book no matter how he obtained it, entered his name in their books, and became a member of their company: then he was complete owner of the book. Owner was the term applied to every holder of copies; and the word 'author' does not occur once in all their entries. That's not a legal foundation, that's a cartel created at despotic whim. Ironically enough, trade secret is the only form of intellectual property that I cited which doesn't create an asset, in the sense that it doesn't create any tradable right like copyright or patent. Trade secrets are routinely traded in the US, by means of contracts and NDAs. No, the secrecy of trade secrets is maintained by means of these mechanisms. Like any other thing of value, unpublished knowledge may form part of a contractual exchange; but a tradable right in publicly disclosed knowledge, as created by copyright, patent, and trademark law, is a creature of statute, and trade secret law doesn't create such a thing. Personally, I find it sobering to realize that my livelihood depends on the continuation of these frail legal fictions, especially as I dislike some of the uses to which they are put. But you can always spot a legal fiction that is sufficiently well established to be taken for granted; people start calling it an inalienable right while it erodes all around them. (Does an indirect reference to Thomas Jefferson's slaveholding invoke a corollary to Godwin's Law?) Cheers, - Michael
Re: Hypothetical situation to chew on
Nathanael Nerode wrote: [EMAIL PROTECTED] wrote: So here's a hypothetical situation; say the current upstream maintainer was to announce in a very public place, with Cc's to all known contributor e-mail addresses, his intent to change the licence of the code to GPL-2 (including documentation) and give a full list of everything that would fall under it. And then was to give a period (say 28 days) for objections to be raised. If none were raised, could they then change the licence? No. :-P Yes, this is what SUCKS about current copyright law. The presumption is All rights reserved unless you have explicit permission. Somehow, I doubt you'd say that about a GPL-licensed package with one author who wants to grant a proprietary license to make money. The only difference between this situation and that one is that we like the license change in one of them. :) - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: Hypothetical situation to chew on
On Tue, Jan 04, 2005 at 10:25:49PM -0800, Josh Triplett wrote: Yes, this is what SUCKS about current copyright law. The presumption is All rights reserved unless you have explicit permission. Somehow, I doubt you'd say that about a GPL-licensed package with one author who wants to grant a proprietary license to make money. The only difference between this situation and that one is that we like the license change in one of them. :) I assume you mean with many authors, one of which wants to ..., and not with only one author, who wants to I don't think most people find offensive the notion of a sole copyright holder of a GPL- licensed work granting proprietary licenses for a fee. -- Glenn Maynard
Re: Hypothetical situation to chew on
Andrew Suffield wrote: Frankly, I think we were better off in the days when copyright had to be explicitly claimed. Anybody who doesn't know enough to claim it obviously doesn't know enough to license the damn thing properly either. That would cut out a lot of the crap we see. I agree entirely. I also agree with the various proposals to revoke the copyright grant when the copyright holder ceases to care about it. - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: Hypothetical situation to chew on
Glenn Maynard wrote: On Tue, Jan 04, 2005 at 10:25:49PM -0800, Josh Triplett wrote: Yes, this is what SUCKS about current copyright law. The presumption is All rights reserved unless you have explicit permission. Somehow, I doubt you'd say that about a GPL-licensed package with one author who wants to grant a proprietary license to make money. The only difference between this situation and that one is that we like the license change in one of them. :) I assume you mean with many authors, one of which wants to ..., and not with only one author, who wants to I don't think most people find offensive the notion of a sole copyright holder of a GPL- licensed work granting proprietary licenses for a fee. That's exactly what I meant; I just used a bad phrasing of the statement. What I meant was a GPL-licensed package (no statement about the total number of authors), with one author who wants to ...; in retrospect, the interpretation a GPL-licensed package with (only) one author is far more natural given the way I stated it. Thanks for the correction. I certainly don't find the other interpretation offensive; on the contrary, it seems like a highly successful business model for Free Software. - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: Hypothetical situation to chew on
On Tue, Jan 04, 2005 at 11:34:47PM -0800, Josh Triplett wrote: Andrew Suffield wrote: Frankly, I think we were better off in the days when copyright had to be explicitly claimed. Anybody who doesn't know enough to claim it obviously doesn't know enough to license the damn thing properly either. That would cut out a lot of the crap we see. I agree entirely. I also agree with the various proposals to revoke the copyright grant when the copyright holder ceases to care about it. Apply that to patents as well, and you've got my vote. If it's going to be Intellectual Property (hack, spit!) then it should be treated like property -- if you don't maintain it, then squatters can take it and you have no rights to it any more. - Matt signature.asc Description: Digital signature
Re: Hypothetical situation to chew on
Nathanael Nerode wrote: If not, what procedure would be needed to make the software DFSG-free? I'm going to guess clean-room rewrite of all of the documentation, and of any code that could be affected? Not *quite*. But close. (1) Every piece of code must be audited to determine the copyright holders. While I'm here, I should point out that we are in the process of doing this for Mozilla to relicense under MPL/GPL/LGPL. It's taken 3 1/2 years so far. I'm happy to give advice to anyone who wants to do it for their own package. Gerv
Re: Hypothetical situation to chew on
Josh Triplett [EMAIL PROTECTED] wrote: Andrew Suffield wrote: Frankly, I think we were better off in the days when copyright had to be explicitly claimed. Anybody who doesn't know enough to claim it obviously doesn't know enough to license the damn thing properly either. That would cut out a lot of the crap we see. I agree entirely. I also agree with the various proposals to revoke the copyright grant when the copyright holder ceases to care about it. Presumably this would result in a formula for copyright maintenance similar to that now in place for trademark maintenance. Personally, I would not like to see this happen. In an era when grab bags of content can be published on the cheap, automatic copyright helps protect the authors of works of modest size and commercial value. In an enforce it or lose it regime, one could not easily offer individual poems, essays, or other minor artworks for publication in periodicals and anthologies while retaining the exclusive right to publish one's own collected works later. The classical forms of intellectual property -- copyright, patent, trademark, and trade secrets -- were developed to protect very different kinds of intangible assets. Arguably, none of them is really the right answer for software, especially open source software. Copyright lasts too long and is too inflexible in the area of joint authorship; patent gives too strong a monopoly and isn't applicable to the bulk of software value creation unless the bar for originality is set absurdly low; trademark protects the distribution channel but not the creation; and trade secret protection only applies to things that aren't shown to outsiders (hardly appropriate for free software). In the US, the DMCA and UCITA amount to attempts to create a new form of intellectual property specific to software and digital media. I happen to think they are very poor public policy in their details. But I'd prefer a well-thought-out digital rights legal formula over distortions to the existing mechanisms. The way it is now -- stealth amendments bought by software and media giants, regulatory capture at the USPTO, DRM arms races, and widespread contempt for the law -- is no good. In the best of all possible worlds, the same kind of work that went into the DFSG (a most admirable set of quality criteria for free software licenses) would be invested in a square deal standard for commercial licenses. (My idea of a square deal would disallow anti-reverse-engineering clauses, acknowledge doctrine of first sale rights to transfer or sell one's copy privately, and set a reasonable standard for authorizing and tracking concurrent use.) Perhaps such a standard could give one-sided model legislation like UCITA a run for its money. Cheers, - Michael
Re: Hypothetical situation to chew on
On Wed, Jan 05, 2005 at 01:36:46PM -0800, Michael K. Edwards wrote: The classical forms of intellectual property -- copyright, patent, trademark, and trade secrets -- were developed to protect very different kinds of intangible assets. That's a myth, spread by a propaganda campaign run by large corporations over the past few decades. They want people to believe it so that they can claim moral authority for the continued protection of these assets. Before printing was invented, effectively all books were controlled by the church, because the only way to produce them in any quantity was to have monks copy them out. The church therefore controlled the content of all books, and they used this to great political effect (dissenting opinions were not permitted). This was before the separation of church and state. When printing came along in the 15th century, the church was afraid that this loss of control over the creation of books would lead to spreading dissent against them. They pressed for, and got, restrictions in law granting them control over what books were printed. The purpose here was censorship, pure and simple. Over time, the church's political influence was reduced. Governments began to grant permission to other groups to control the printing of books. These were the first publishers. This process culminated in 1710, with the enactment of the Statute of Anne in the UK, marking the first form of copyright as we know it today. It permitted anybody to print anything, with certain restrictions designed to protect the revenue stream of the publishers (essentially the ones we have now, time limit 28 years). It also prohibited the charging of prices conceived to be too high or unreasonable. No prizes for guessing why that last part was in there (British law at the time was mainly concerned with reacting to observed problems, rather than trying to second guess possible future problems). Copyright was not designed to protect assets. It was designed to take them away. Rights of authors did not enter into it, nor was there any 'trade' of rights between publishers and the people (another popular myth). The purpose of copyright in its modern form was to grant the people the right to copy works, which they did not previously have. Everything since then has been the publishers trying to claw back some part of what they lost. They've been fairly successful, and have mostly regained their position of power. [I've skipped a fair number of details, but those are the significant highlights] Patents follow a fairly similar story; they began as monopolies on a certain trade, prohibiting anybody else from competing with a specified person, this time created by the state rather than the churce, as a method of raising funds. Widespread abuse led to them being locked down in 1624 by the Statute of Monopolies (again in the UK), which was the beginning of the modern patent system. Again, it was to take assets away, not protect them. Trademarks are essentially unrelated. They began as a way of marking some property as yours (think of branding cattle), with prohibitions on altering them introduced as basic anti-theft measures. They then developed into the current system of branding sometime between the 10th and 15th centuries (I forget the details of when and how, but it was started in the UK again - did we invent *all* of this crap?). Trade secrets are a modern (20th century) perversion, but they're also a US perversion. They aren't considered property in Commonwealth countries. Breaking into your competitor's offices and stealing their files is theft, but there's no law against obtaining them via means that would otherwise be legal (except in the US and a few countries who duplicated their insanity). They're probably the only one designed to protect assets. In the US, the DMCA and UCITA amount to attempts to create a new form of intellectual property specific to software and digital media. I happen to think they are very poor public policy in their details. But I'd prefer a well-thought-out digital rights legal formula over distortions to the existing mechanisms. The way it is now -- stealth amendments bought by software and media giants, regulatory capture at the USPTO, DRM arms races, and widespread contempt for the law -- is no good. That's no surprise, since the system was never designed to cope with this sort of thing. Given its position in history, the intent was probably to continue to introduce new laws to stop this kind of crap as it came up; that was the prevailing approach to legislation at the time. But the political landscape shifted to favour the large corporations, so that never happened. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: Hypothetical situation to chew on
On Wed, 5 Jan 2005 01:38:29 -0500 Glenn Maynard wrote: I don't think most people find offensive the notion of a sole copyright holder of a GPL- licensed work granting proprietary licenses for a fee. It's perfectly legal, AFAIK. I don't particularly like this business model, but there exist many many worse ones... The reasons why I don't like this business model are: * in many cases it generates the interest to persuade potential proprietary-license buyers that the proprietary variant is somewhat better or the only alternative (possibly contributing to spread FUD about the GNU GPL) * I fail to see the usefulness (from a downstream recipient's point of view) of a proprietary variant, when a technically identical piece of software is available under the GNU GPL (the only exceptions are maybe libraries and the like...) * some of the downstream recipients do not get freedoms, and this does not sound good -- Today is the tomorrow you worried about yesterday. .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpUOOzaj5DWO.pgp Description: PGP signature
Re: Hypothetical situation to chew on
Michael K. Edwards wrote: Josh Triplett [EMAIL PROTECTED] wrote: Andrew Suffield wrote: Frankly, I think we were better off in the days when copyright had to be explicitly claimed. Anybody who doesn't know enough to claim it obviously doesn't know enough to license the damn thing properly either. That would cut out a lot of the crap we see. I agree entirely. I also agree with the various proposals to revoke the copyright grant when the copyright holder ceases to care about it. Presumably this would result in a formula for copyright maintenance similar to that now in place for trademark maintenance. Personally, I would not like to see this happen. Neither would I. I'm not suggesting that you must enforce your copyrights in order to keep them; rather, I'm referring to various proposed fixes such as the Public Domain Enhancement Act, which would require a token fee (such as $1) after a certain amount of time, and expire the copyright if the fee is not paid. This would essentially require you to periodically renew your copyright registration. - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: Hypothetical situation to chew on
Francesco Poli wrote: On Wed, 5 Jan 2005 01:38:29 -0500 Glenn Maynard wrote: I don't think most people find offensive the notion of a sole copyright holder of a GPL- licensed work granting proprietary licenses for a fee. It's perfectly legal, AFAIK. I don't particularly like this business model, but there exist many many worse ones... The reasons why I don't like this business model are: * in many cases it generates the interest to persuade potential proprietary-license buyers that the proprietary variant is somewhat better or the only alternative (possibly contributing to spread FUD about the GNU GPL) I do agree that such FUD is undesirable and unethical. * I fail to see the usefulness (from a downstream recipient's point of view) of a proprietary variant, when a technically identical piece of software is available under the GNU GPL (the only exceptions are maybe libraries and the like...) I'm not referring to those who sell proprietary licenses to a separate version of the software; I'm referring to those who use a copyleft license and sell exceptions for people who want to link their proprietary software against that copylefted software. * some of the downstream recipients do not get freedoms, and this does not sound good In the scenario I'm referring to, both versions are identical, so anyone who wants Free Software will take the GPLed version, and the only people who purchase proprietary licenses will be those who *want* proprietary licenses that work with their proprietary software. - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: Hypothetical situation to chew on
Nathanael Nerode wrote: Yes, this is what SUCKS about current copyright law. The presumption is All rights reserved unless you have explicit permission. Josh Triplett wrote: Somehow, I doubt you'd say that about a GPL-licensed package with one author who wants to grant a proprietary license to make money. The only difference between this situation and that one is that we like the license change in one of them. :) Let me clarify. :-) I have few complaints with the treatment of material for which the authors *claim* copyright. My complaint is about material distributed willy-nilly by its authors with *no* copyright statements and *no* licensing information. Clearly the authors didn't intend all rights reserved, but that's what current law assumes. In contrast, pre-1986 (I think) US law specified that works published (== deliberately distributed to the public by their authors) without a copyright statement went into the public domain. Note that this email message is subject to copyright, and can't legally be reprinted without permission (except for fair use, such as quotation rights). Under pre-1986 US law, it would be public domain, because I didn't affix a copyright notice. This change has, frankly, made a freaking mess. This is why projects have to have statements like By submitting a patch, you agree to license it to us under (license of choice). Under the old law, submitting a patch of your own authorship to a public bug tracking system would be publishing it, and if you did so without a copyright notice -- public domain. ObLicense: Any person may copy and/or distribute this message, with or without modification, in perpetuity, without royalty and without additional license.
Re: Hypothetical situation to chew on
On Thu, Jan 06, 2005 at 12:57:49AM +0100, Francesco Poli wrote: I don't think most people find offensive the notion of a sole copyright holder of a GPL- licensed work granting proprietary licenses for a fee. It's perfectly legal, AFAIK. Of course. * in many cases it generates the interest to persuade potential proprietary-license buyers that the proprietary variant is somewhat better or the only alternative (possibly contributing to spread FUD about the GNU GPL) This is a problem with individuals being dishonest, not a flaw of this particular business model. * I fail to see the usefulness (from a downstream recipient's point of view) of a proprietary variant, when a technically identical piece of software is available under the GNU GPL (the only exceptions are maybe libraries and the like...) This model is most common and most useful with libraries. * some of the downstream recipients do not get freedoms, and this does not sound good I disagree. People still have exactly as much freedom to make use of the GPL work after an additional license is granted to some third party as they did before. For example, I don't have less freedom to use MAD if Nullsoft buys a proprietary license to make use of it in Winamp[1]. (On the other hand, if it's funding the person doing the development, it may help ensure its continued development, which actually is in my interest.) The only case where what you say holds is where the licensee purchasing the proprietary license would have otherwise used the GPL license and released source. Which case--encouraging companies to GPL source, or funding the further development of the work itself--is more beneficial is an open question, up to each licensor to decide for himself, of course. (In this case, I'd say that the future maintenance of MAD benefits me and my projects far more than would Winamp being released under the GPL, but it can go either way.) [1] which, as far as I know, they have not done; this is a purely hypothetical example -- Glenn Maynard
Hypothetical situation to chew on
I'm vaguely aware of a piece of software which contains both GFDL licensed material, and possibly code which was dropped in without actually checking the licence for compatibility with the GPL. A gargantuan number of people over the years have contributed code to it, and many have claimed copyright for their contributions. No policy of copyright-assignment has been used. So here's a hypothetical situation; say the current upstream maintainer was to announce in a very public place, with Cc's to all known contributor e-mail addresses, his intent to change the licence of the code to GPL-2 (including documentation) and give a full list of everything that would fall under it. And then was to give a period (say 28 days) for objections to be raised. If none were raised, could they then change the licence? If not, what procedure would be needed to make the software DFSG-free? I'm going to guess clean-room rewrite of all of the documentation, and of any code that could be affected? Thanks in advance, Scott -- Have you ever, ever felt like this? Had strange things happen? Are you going round the twist? signature.asc Description: This is a digitally signed message part
Re: Hypothetical situation to chew on
On Tue, Jan 04, 2005 at 10:37:30PM +, Scott James Remnant wrote: So here's a hypothetical situation; say the current upstream maintainer was to announce in a very public place, with Cc's to all known contributor e-mail addresses, his intent to change the licence of the code to GPL-2 (including documentation) and give a full list of everything that would fall under it. And then was to give a period (say 28 days) for objections to be raised. If none were raised, could they then change the licence? Not with any kind of legitimacy. The copyright holders who have not explicitly agreed to the new license would be fully justified in ignoring it, and treating all licensees as if they were still working to the old one. No private individual can make a declaration of the form Respond now or forfeit your copyright. If not, what procedure would be needed to make the software DFSG-free? I'm going to guess clean-room rewrite of all of the documentation, and of any code that could be affected? That would work. Alternatively, just cut anything whose author can't be traced or contacted - there's no need to throw away stuff written by somebody who agrees to the new license. That does mean line-by-line verification though, so it might not be practical (depending on whether contributions are concentrated in some areas or uniformly distributed). -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: Hypothetical situation to chew on
On Tue, Jan 04, 2005 at 10:37:30PM +, Scott James Remnant wrote: I'm vaguely aware of a piece of software which contains both GFDL licensed material, and possibly code which was dropped in without actually checking the licence for compatibility with the GPL. I'm not quite sure what you mean. Is there one work or two here? The GFDL is GPL-incompatible, so is the GFDL licensed material part of code which was dropped in? So here's a hypothetical situation; say the current upstream maintainer was to announce in a very public place, with Cc's to all known contributor e-mail addresses, his intent to change the licence of the code to GPL-2 (including documentation) and give a full list of everything that would fall under it. And then was to give a period (say 28 days) for objections to be raised. If none were raised, could they then change the licence? No. You can't announce unless you say otherwise, your copyrighted work is now under this license. I don't know if there are other means to relicense. There's been vague talk of things like joint works, and also talk of what rights an editor can do. These have never been particularly well-explored, though: a means to grant permissions without the original author's consent isn't something most people here want to figure out a way to do, I assume. (If it's possible, it's probably not a good idea to try without asking a lawyer.) -- Glenn Maynard
Re: Hypothetical situation to chew on
[EMAIL PROTECTED] wrote: I'm vaguely aware of a piece of software which contains both GFDL licensed material, and possibly code which was dropped in without actually checking the licence for compatibility with the GPL. A gargantuan number of people over the years have contributed code to it, and many have claimed copyright for their contributions. No policy of copyright-assignment has been used. So here's a hypothetical situation; say the current upstream maintainer was to announce in a very public place, with Cc's to all known contributor e-mail addresses, his intent to change the licence of the code to GPL-2 (including documentation) and give a full list of everything that would fall under it. And then was to give a period (say 28 days) for objections to be raised. If none were raised, could they then change the licence? No. :-P Yes, this is what SUCKS about current copyright law. The presumption is All rights reserved unless you have explicit permission. If not, what procedure would be needed to make the software DFSG-free? I'm going to guess clean-room rewrite of all of the documentation, and of any code that could be affected? Not *quite*. But close. (1) Every piece of code must be audited to determine the copyright holders. (I *hope* they kept track of that, but many don't.) The author of any major portion or major collection of changes -- or his/her employer if it was work for hire and the author was in a country with that doctrine -- is a copyright holder for that portion. (Unless that person has explicitly released it to the public domain, or it was published without copyright notices in the US prior to, I believe, 1986 -- in those cases it's in the public domain.) (2) If the author of a piece cannot be identified, and the piece is not clearly in the public domain, it must be clean-room rewritten. (3) If the author can be identified, and agrees explicitly to relicense the code (or the license for the code is already OK), it can be kept. (4) If the author can be identified, but does not agree explicitly to relicense the code (whether this is because he/she can't be reached or because he/she refuses or because he/she is incomprehensible), it must be clean-room rewritten. So, (3) is the exception to your rule; the work of anyone who can actually be tracked down, and who agrees to relicense, can be relicensed. Perhaps surprisingly, many people can be tracked down, and *do* agree to relicense. For large chunks, this may be easier than clean-room rewrites. For small chunks, probably it's harder. I know of several packages which fall into this rather nasty category, and I haven't had the heart to work on most of them. I wish you luck.
Re: Hypothetical situation to chew on
On Tue, Jan 04, 2005 at 11:01:41PM -0500, Nathanael Nerode wrote: Yes, this is what SUCKS about current copyright law. The presumption is All rights reserved unless you have explicit permission. The fact that it never expires is what sucks about it. The default copyright permissions aren't so bad, by comparison, as long as you're aware of it. :) That's one of the major contributions of debian-legal, in my opinion: making people aware of how copyright affects their projects (giving it at least the force of sorry, we just can't distribute this safely), that it can't simply be ignored, and that in many cases, it can be dealt with reasonably by ordinary humans. (In some cases--possibly like this one, where there may be accumulated licensing errors over years--it may be too late, though.) -- Glenn Maynard
