Re: New 'Public Domain' Licence
On 6/11/05, Michael K. Edwards [EMAIL PROTECTED] wrote: P. S. Note, however, that the Linux kernel is a derivative work of works by some other authors, such as netfilter/iptables. I don't mean to say that no one but Linus can file a claim of copyright infringement or breach of contract against someone who is doing genuinely inappropriate things with the kernel and friends (cf. the Sitecom and Fortinet cases). But in order to demonstrate standing, they're going to have to identify a work of authorship, not totally subsumed in the Linux kernel development process, on which their contribution rises to the level of co-author, as Harald Welte did with respect to netfilter/iptables. Let me explain a little further why I think derivative work is the right theory for the relationship between netfilter and the kernel. I will start with an excerpt from the House Report's commentary on 17 USC 201: quote Two basic and well-established principles of copyright law are restated in section 201(a): that the source of copyright ownership is the author of the work, and that, in the case of a ''joint work,'' the coauthors of the work are likewise coowners of the copyright. Under the definition of section 101, a work is ''joint'' if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as ''inseparable or interdependent parts of a unitary whole.'' The touchstone here is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit, although the parts themselves may be either ''inseparable'' (as the case of a novel or painting) or ''interdependent'' (as in the case of a motion picture, opera, or the words and music of a song). The definition of ''joint work'' is to be contrasted with the definition of ''collective work,'' also in section 101, in which the elements of merger and unity are lacking; there the key elements are assemblage or gathering of ''separate and independent works ... into a collective whole.'' The definition of ''joint works'' has prompted some concern lest it be construed as converting the authors of previously written works, such as plays, novels, and music, into coauthors of a motion picture in which their work is incorporated. It is true that a motion picture would normally be a joint rather than a collective work with respect to those authors who actually work on the film, although their usual status as employees for hire would keep the question of coownership from coming up. On the other hand, although a novelist, playwright, or songwriter may write a work with the hope or expectation that it will be used in a motion picture, this is clearly a case of separate or independent authorship rather than one where the basic intention behind the writing of the work was for motion picture use. In this case, the motion picture is a derivative work within the definition of that term, and section 103 makes plain that in a derivative work is independent of, and does not enlarge the scope of rights in, any pre-existing material incorporated in it. There is thus no need to spell this conclusion out in the definition of ''joint work.'' /quote The elements of merger and unity are not lacking in the kernel, so there's no way it can be called a collective work (except as regards the firmware blobs, which are not part of the kernel and not under the GPL, no matter what the headers in the drivers may say). Oh, maybe a driver maintained exclusively by a vendor isn't merged enough to avoid collective work status; but the history of periodic rework is so clear that I don't think a judge would have a hard time accepting that the kernel is every bit as much a single work of authorship as Spike Lee's Malcolm X. So if netfilter were not accompanied by a component outside the scope of the kernel, and were intended from the beginning to be absorbed or combined into an integrated unit together with all other kernel contributors' work, then the only theory on which Harald Welte would have any claim to authorship would be as co-author of the kernel as a joint work; and as I wrote before I don't think that claim could survive the analysis of Aalmuhammed v. Lee. But since netfilter+iptables also exists as an independent work of authorship -- at any given time, an update to the netfilter subsystem of the kernel plus a tightly interlocked userspace tool for control and status reporting -- Harald does have a claim of co-authorship on that work. Recall that there was no particular distinction between what are now known as collective works and derivative works under the 1909 Act, which was perfectly happy with this clause (added in 1947): quote 7. Copyright on compilations of works in public domain or of copyrighted works; subsisting copyrights not affected Compilations or abridgements, adaptations, arrangements,
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 09:52:38PM -0700, Raul Miller wrote: You seem to be trying to talk about this in an impartial manner, but as long as you talk in terms of minimizing all obstacles you're not doing so. On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: The GPL deliberately places obstacles to code reuse: it disallows reuse by projects that don't release every bit of linked code (more or less) under a GPL-compatible license, in the hope of increasing code reuse in the long term. Agreed: it disallows reuse by one person in contexts where that person asserts a right to restrict reuse by other people. I believe that to be a simple, obvious statement of fact, and not one that anyone should be offended by: the GPL restricts use of code, to use free software as an incentive for other authors to place their own works under GPL-compatible licenses. I certainly agree that the GPL does not eliminate all obstacles. One point is that elimnating all obstacles to reuse is impossible under a legal system which allows people to impose obstacles for reuse. You can't minimize all obstacles', you need to choose decide what kinds of obstacles you care about and which you wish to do without. I'll readily acknowledge myself preferring permissive licenses, and I'm trying to be impartial enough to keep the thread from degenerating into an argument of philosophies (or semantics), though I don't claim that my opinion doesn't color my speech despite my efforts. I think that if you avoided the use of universal quantifiers I wouldn't have objected to how you phrased things. My main interest in the thread was explaining how even the minor restrictions of the MIT license can be cumbersome, and why a person using permissive licenses might reasonable want something less restrictive. It's certainly the case that each person brings to bear their own value system, which results in different people making very different decisions even though they might appear to agree when expressing why they would make their decisions the way they do. Do you mean that it's possible that an author might claim to release a work into the public domain, but not actually have the right to do so (eg. contractually)? That's true, but is true of all licenses ... No. Though I'll agree that that's also a possibility. I gave more detail on this issue in the message you are quoting. I read the message, didn't quite understand what you were describing, took a guess and asked if that's what you meant. Saying no, read the message again when your point didn't come across is very rarely helpful. :) If a work has been put into the public domain it's possible that the evidence that this was the case will have been lost. This is probably not a problem for works that get wide exposure, but not all works get wide exposure If the work has been incorporated into some other copyrighted material, perhaps in conjunction with some work-for-hire, the result could be rather complicated, legally. Other possibilities probably exist. In general, good documentation on matters which are legally important is good practice. -- Raul
Re: New 'Public Domain' Licence
On Thursday 09 June 2005 11:10 pm, Anthony DeRobertis wrote: Andrew Suffield wrote: The primary threat is not from the heirs (although that is a threat, and you don't have control over all your heirs - your parents and cousins can qualify), If you're worried about your heirs revoking your copyright licences, I suggest talking to the FSF or someone like them; you could make the FSF the heir to your copyrights. No, your parents and cousins CANNOT qualify, blood relation is not enough under the statute. The right of termination flows from you, to your spouse, then to your children, and final to your estate's executor. You can transfer the copyright to others beyond that chain, but the termination right remains with the others. So, if I will my copyright to Frank, my 3rd cousin, who then licenses it to MGM, either my spouse or children can still exercise their termination right over that license (but not the transfer to Frank... since transferring the copyright by will is not susceptible to termination). -Sean -- Sean Kellogg 2nd Year - University of Washington School of Law GPSS Senator - Student Bar Association Editor-at-Large - National ACS Blog [http://www.acsblog.org] w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: New 'Public Domain' Licence
On Thursday 09 June 2005 06:36 pm, Michael K. Edwards wrote: I wrote: So I think it turns out I was right in the first place: continued verbatim copying and distribution counts as utilization, and the only scope for argument is about how much bug-fixing you can do after termination without being sued for preparing a new derivative work. Sean commented previously that Congress's use of the otherwise undefined word utilize in 17 USC 203 is confusing, and I agree. However, the Mills Music case clears things up considerably; and as Congress hasn't seen the need to override Mills by modifying 203 and 304 in any of the various revisions to the Act over the subsequent 20 years, I think we can take it as good law. Although I haven't Shepardized it yet, I've used FindLaw to search for subsequent Supreme Court decisions that reference Mills, and it doesn't appear to have been repudiated by later courts. In fact, see Stewart v. Abend 1990, which references Mills when comparing the 304(c)(6)(A) exception to the author's termination rights against the lack of such an exception in the provisions for the renewal term of a pre-1978 copyright. The opinion states: For example, if petitioners held a valid copyright in the story throughout the original and renewal terms, and the renewal term in 'Rear Window' were about to expire, petitioners could continue to distribute the motion picture even if respondent terminated the grant of rights, but could not create a new motion picture version of the story. Thus Mills was still good precedent in 1990, and was used in the course of distinguishing between relicensing at the commencement of the renewal term and post-renewal-term termination with respect to pre-1978 works. Note also that the Supreme Court affirmed the decision of the Ninth Circuit in Stewart v. Abend and largely rejected the reasoning in the 1977 Rohauer v. Killiam Shows decision of the Second Circuit (the previous authority, given that certioriari was denied at that time). It is interesting to note that Nimmer's commentary on Rohauer seems to have strongly influenced the justices who joined in the Stewart decision. You could be right... but I think that Mills is distinguishable on the law (if not also the facts...). The renewal right under (s)304 and the termination right under (s)203 are really quite different. For example, the renewal right is transferable, where the termination right is not. Additionally, if utilization is read the way you suggest, it really strikes at the heart of the policy objective of the termination right. The objective, as explained by my Copyrights Prof., is to provide authors a second chance to negotiate licenses that may have been poorly made when the work was first released. If termination only prohibits the creation of new derivative works, leaving copying and distribution of preexisting derivatives, then what's really left to renegotiate? As an added complication, the utilization term is only applicable in the case of derivative works based on the licensed work, but not pure copies. So if I have a license to copy and distribute a Beatles's song without any alterations from the original, when the license is terminated I'm left with nothing... I can't even keep the original copy around! Does making a derivative really earn you so many rights that you not only get to keep the copy, but also made new copies and distribute?! ... something doesn't smell right. -Sean -- Sean Kellogg 2nd Year - University of Washington School of Law GPSS Senator - Student Bar Association Editor-at-Large - National ACS Blog [http://www.acsblog.org] w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: New 'Public Domain' Licence
On 6/10/05, Sean Kellogg [EMAIL PROTECTED] wrote: You could be right... but I think that Mills is distinguishable on the law (if not also the facts...). The renewal right under (s)304 and the termination right under (s)203 are really quite different. For example, the renewal right is transferable, where the termination right is not. Additionally, if utilization is read the way you suggest, it really strikes at the heart of the policy objective of the termination right. 304(c)(6)(A) is exactly the same text as 203(b)(1), and applies only to termination during the extension term (the 19 years after 28+28) of a pre-1978 copyright. No relation to the renewal term, as discussed in Stewart v. Abend. The objective, as explained by my Copyrights Prof., is to provide authors a second chance to negotiate licenses that may have been poorly made when the work was first released. If termination only prohibits the creation of new derivative works, leaving copying and distribution of preexisting derivatives, then what's really left to renegotiate? Largely, terms on reproduction of the original work. And as the most important applications of the derivative work business are sound recordings and film/television rights, and sound recordings are exceptions to the Exception (per Woods v. Bourne), Congress probably figured that it was stupid for a film to be withdrawn from circulation because its producer's license to some song was terminated (as had happened upon copyright renewal under the 1909 law). Authors don't generally grant their publishers blanket licenses to create derivative works of their books, and by the time they're authorizing a screenplay they ought to know this is their one shot at negotiating big royalty payments. So about the only people getting burned by the derivative works exception to termination are open source authors who grant blanket authorizations to modify and reuse; and that's fine, because it would be just as silly to let them pull the plug on users of a derivative of their work as it would be to let songwriters hold already prepared films for ransom. As an added complication, the utilization term is only applicable in the case of derivative works based on the licensed work, but not pure copies. So if I have a license to copy and distribute a Beatles's song without any alterations from the original, when the license is terminated I'm left with nothing... I can't even keep the original copy around! Does making a derivative really earn you so many rights that you not only get to keep the copy, but also made new copies and distribute?! You're misreading utilize; it's the publisher's right to utilize the copyright license by copying and initial distribution that's being terminated, not any right of use and subsequent transfer inherent in an individual copy after first sale. All that preparing a derivative work (under explicit license to do so) gets a publisher is the right to continue the terms of the existing agreement with respect to that derivative work. Read Woods v. Bourne for an idea of which royalty agreements get renegotiated and which don't. Cheers, - Michael
Re: New 'Public Domain' Licence
On 6/10/05, Michael K. Edwards [EMAIL PROTECTED] wrote: 304(c)(6)(A) is exactly the same text as 203(b)(1), and applies only to termination during the extension term (the 19 years after 28+28) of a pre-1978 copyright. ... 39 instead of 19 now, of course, courtesy of the Sonny Bono Act. Regrets, - Michael
Re: New 'Public Domain' Licence
Anthony does an excellent job of making the arguments in favor of the Linux kernel as a joint work and/or a collective work containing multiple components under separate authorship; but I simply don't agree. The collective work theory doesn't hold water at all (except with regard to firmware blobs, which indeed are not part of the kernel). The kernel, drivers and all, is a single work of authorship subject to periodic systematic overhaul when internal APIs change. Any piece of the code could get refactored or replicated anywhere else in the kernel at any time without the involvement or approval of its contributor. Nor is anyone else a joint author; Linus doesn't exercise a heavy hand when he doesn't have to; but he alone has the power to approve contributions to the active development branch, and exerts a degree of creative control that no one else can claim. A lot of authority is delegated to maintenance series editors, but that's not where the action is, and they serve at his pleasure and their individual decisions are subject to his veto. You might say that Aalmuhammed was Spike Lee's Alan Cox or David Miller, by analogy with the facts of the case: quote [4] Aalmuhammed joined Washington on the movie set. The movie was filmed in the New York metropolitan area and Egypt. Aalmuhammed presented evidence that his involvement in making the movie was very extensive. He reviewed the shooting script for Spike Lee and Denzel Washington and suggested extensive script revisions. Some of his script revisions were included in the released version of the film; others were filmed but not included in the released version. Most of the revisions Aalmuhammed made were to ensure the religious and historical accuracy and authenticity of scenes depicting Malcolm X's religious conversion and pilgrimage to Mecca. [5] Aalmuhammed submitted evidence that he directed Denzel Washington and other actors while on the set, created at least two entire scenes with new characters, translated Arabic into English for subtitles, supplied his own voice for voice-overs, selected the proper prayers and religious practices for the characters, and edited parts of the movie during post production. Washington testified in his deposition that Aalmuhammed's contribution to the movie was great because he helped to rewrite, to make more authentic. Once production ended, Aalmuhammed met with numerous Islamic organizations to persuade them that the movie was an accurate depiction of Malcolm X's life. /quote But Aalmuhammed still lost the portion of his case that depended on a claim of co-authorship: quote [24] Aalmuhammed did not at any time have superintendence of the work. Warner Brothers and Spike Lee controlled it. Aalmuhammed was not the person who has actually formed the picture by putting the persons in position, and arranging the place. . . . Spike Lee was, so far as we can tell from the record. Aalmuhammed, like Larson's dramaturg, could make extremely helpful recommendations, but Spike Lee was not bound to accept any of them, and the work would not benefit in the slightest unless Spike Lee chose to accept them. Aalmuhammed lacked control over the work, and absence of control is strong evidence of the absence of co-authorship. ... [27] The Constitution establishes the social policy that our construction of the statutory term authors carries out. The Founding Fathers gave Congress the power to give authors copyrights in order [t]o promote the progress of Science and useful arts. Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make. Spike Lee could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that. /quote Notwithstanding the various degrees of autonomy that driver writers and subsystem maintainers possess, I think that the Linux kernel is neither a joint work nor a collective work, and irrespective of acknowledgments and copyright notices no one other than Linus can claim authorship under US law of any portion of the mainstream kernel. Not, that is, unless and until he burns out and hands the reins to a new benevolent dictator. Cheers, - Michael (IANAL, TINLA)
Re: New 'Public Domain' Licence
Michael K. Edwards wrote (with spacing fixed): 2) the 50% rule applies to _authorship_, which connotes (per Aalmuhammed v. Lee) a degree of creative control so high that, e. g.,there is no candidate for authorship of the Linux kernel other than Linus Torvalds; I've read the cited case, and it does not seem to apply well to the Linux kernel. The first problem is that not all versions of Linux have Linus as having sole control over the work; Linux 2.0, 2.2., and 2.4 are all controlled by people other than him. The same applies to all the various branches (-ac, -mm, etc.). The second problem is that Linus allows a large amount of effective control over the kernel to his section maintainers; while he can of course say no to their changes, he generally delegates that decision to them. The third is that large parts of the kernel are written by diverse people and are not actually part of an inseperable whole at all; examples include drivers. Some of these, for example, are used on xBSD as well. The fourth is that the cited case involves things certainly not relevant to Linux, such as a work for hire agreement being signed. In short, Aalmuhammed was hired to offer advice, not to create parts of the movie. He had no control over the movie. This is not at all how large contributions to the kernel work. As a typical example, let's say I have a Foo Corp video card, which is not supported by Linux. I reverse-engineer the hardware interface, and write a driver. After a good deal of testing, I submit it to linux-kernel (the kernel mailing list). I have had full control over this work; I am its author. Several people on linux-kernel provide suggestions; by the standards in Aalmuhammed v. Lee, they are not co-authors. After I make those minor changes, the person in charge of video drivers accepts my driver, and forwards it to Linus, who includes it in the kernel tarball. What has happened here is that Linus (and possible some others) have created a collection, which is probably in itself copyrightable. He/they are indeed the author of that collection; however, I am still the author of my part of that collection. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Fri, Jun 10, 2005 at 12:50:03AM -0700, Sean Kellogg wrote: On Thursday 09 June 2005 11:10 pm, Anthony DeRobertis wrote: Andrew Suffield wrote: The primary threat is not from the heirs (although that is a threat, and you don't have control over all your heirs - your parents and cousins can qualify), If you're worried about your heirs revoking your copyright licences, I suggest talking to the FSF or someone like them; you could make the FSF the heir to your copyrights. No, your parents and cousins CANNOT qualify, blood relation is not enough under the statute. The right of termination flows from you, to your spouse, then to your children, and final to your estate's executor. Sounds like a US perversion to me. I doubt many places have weird laws that override normal inheritance law. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: New 'Public Domain' Licence
On Friday 10 June 2005 11:24 am, Andrew Suffield wrote: No, your parents and cousins CANNOT qualify, blood relation is not enough under the statute. The right of termination flows from you, to your spouse, then to your children, and final to your estate's executor. Sounds like a US perversion to me. I doubt many places have weird laws that override normal inheritance law. Normal inheritance law?! That's the understatement of the day. After taking Wills, Trusts, and Estates I am of the complete opinion that there is no such thing as normal inheritance law. The issues lies with competing policy objectives: 1) keeping with the intent of the dead, 2) providing for the dead's dependents. If the dead gives all of their money to someone other than their dependents, then someone else has got to provide for those dependents... and that someone often becomes the State. Since inheritance is not a natural property right, but a legal construction of the State itself, it is well within the State's right to dictate that certain portions of your estate MUST transfer to your dependants. To hold otherwise would allow the deceased to abandon their dependents and make the rest of society pay, all to the benefit of their non-dependent beneficiary. I'll tell ya, they teach Copyrights in a 3 credit course and its probably too many credits... they teach Wills, Trusts, and Estates in a 5 credit course and its not nearly enough time to cover everything. -Sean -- Sean Kellogg 2nd Year - University of Washington School of Law GPSS Senator - Student Bar Association Editor-at-Large - National ACS Blog [http://www.acsblog.org] w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: New 'Public Domain' Licence
On 6/9/05, Humberto Massa Guimarães [EMAIL PROTECTED] wrote: anyway, to take this thread back to the topic, I ask: is there anything that would be accomplished by a public domain license that is *not* accomplished by putting the work under the MIT license? I don't think so. And, if I am right, to avoid license proliferation and other undesired (and undesirable) interactions with various jurisdictions' laws, it seems to me that the best thing to do if you want to donate your work to the public would be putting it under the MIT license. Actually, I think it's one of the worst. As a unilateral, executory grant, it's revocable at will under common law, leaving the recipient with no license to the work. (Even adding an explicit term, perpetual or otherwise, wouldn't change this.) Any privileges under the grant that have already been exercised, including the right to create various derivative works and to copy and distribute them, do not suddenly get reversed; but the only theory under which any further use may be made of them is equitable estoppel. Like the post-termination right to utilize derivative works that have already been prepared, equitable estoppel (reliance to one's detriment) might be stretched to cover further distribution and possibly even bug fixes. But it's unlikely to permit further development of works substantially derived from the original, whether or not they are already heavily modified by the time the grant is revoked. IANAL, etc.; but if you want a license that lasts, you need an offer of bilateral contract which isn't easily abrogated once accepted. The GPL, for instance. Or the OpenSSL license, in which the art of the obnoxious advertising clause is raised to a level at which honoring it probably counts as return consideration. Cheers, - Michael
Re: New 'Public Domain' Licence
I wrote: So I think it turns out I was right in the first place: continued verbatim copying and distribution counts as utilization, and the only scope for argument is about how much bug-fixing you can do after termination without being sued for preparing a new derivative work. Sean commented previously that Congress's use of the otherwise undefined word utilize in 17 USC 203 is confusing, and I agree. However, the Mills Music case clears things up considerably; and as Congress hasn't seen the need to override Mills by modifying 203 and 304 in any of the various revisions to the Act over the subsequent 20 years, I think we can take it as good law. Although I haven't Shepardized it yet, I've used FindLaw to search for subsequent Supreme Court decisions that reference Mills, and it doesn't appear to have been repudiated by later courts. In fact, see Stewart v. Abend 1990, which references Mills when comparing the 304(c)(6)(A) exception to the author's termination rights against the lack of such an exception in the provisions for the renewal term of a pre-1978 copyright. The opinion states: For example, if petitioners held a valid copyright in the story throughout the original and renewal terms, and the renewal term in 'Rear Window' were about to expire, petitioners could continue to distribute the motion picture even if respondent terminated the grant of rights, but could not create a new motion picture version of the story. Thus Mills was still good precedent in 1990, and was used in the course of distinguishing between relicensing at the commencement of the renewal term and post-renewal-term termination with respect to pre-1978 works. Note also that the Supreme Court affirmed the decision of the Ninth Circuit in Stewart v. Abend and largely rejected the reasoning in the 1977 Rohauer v. Killiam Shows decision of the Second Circuit (the previous authority, given that certioriari was denied at that time). It is interesting to note that Nimmer's commentary on Rohauer seems to have strongly influenced the justices who joined in the Stewart decision. It is interesting to search forward for circuit rulings that cite Mills Music; see, for instance, Fred Ahlert Music v. Warner/Chappell 1998 ( http://caselaw.lp.findlaw.com/data2/circs/2nd/977705.html ), which certainly seems to indicate that Mills was still good law and that utilize ... under the terms of the grant continues to be understood to refer to a continuation of all terms of, and limitations on, the original license with respect to a derivative work already prepared. Cheers, - Michael
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 09:13:49PM -0700, Sean Kellogg wrote: No argument from me... but it is the system we've got here in the States and FOSS developers should plan accordingly, just as is expected of anyone else who enters into the world of copyrights. But that's just the problem--as far as I know, there's simply no way I can release a work under any license (permissive, copyleft or otherwise) to guarantee that you won't be bitten a few decades down the line. The only way you can plan accordingly, as far as I know, is to avoid reusing other people's code entirely. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On 6/7/05, Glenn Maynard [EMAIL PROTECTED] wrote: It's not so much projects that are actually around for 35 years. Rather, if you maintain a project for, say, three or four years, I reuse large chunks of it in my own project, and my project outlives yours. Decades later, you (or your heirs) have a change of heart, and revoke the license you originally granted to me for your project, which I require to use your code in mine. You don't control 50% of my work, but you easily control 50% of the work you licensed. If I want my work to remain free, I have to excise your code from it--which, decades later, probably won't be possible. It's a textbook failure of the tentacles of evil test. This whole line of argument is a canard based on a failure to research the meaning of authorship under US law. See Aalmuhammed v. Lee ( http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm ), and observe that the 17 USC 203 termination right is reserved to _authors_ and their heirs, not contributors of any quantum of expression that might by itself be copyrightable. Cheers, - Michael
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 09:52:38PM -0700, Raul Miller wrote: You seem to be trying to talk about this in an impartial manner, but as long as you talk in terms of minimizing all obstacles you're not doing so. The GPL deliberately places obstacles to code reuse: it disallows reuse by projects that don't release every bit of linked code (more or less) under a GPL-compatible license, in the hope of increasing code reuse in the long term. I believe that to be a simple, obvious statement of fact, and not one that anyone should be offended by: the GPL restricts use of code, to use free software as an incentive for other authors to place their own works under GPL-compatible licenses. I'll readily acknowledge myself preferring permissive licenses, and I'm trying to be impartial enough to keep the thread from degenerating into an argument of philosophies (or semantics), though I don't claim that my opinion doesn't color my speech despite my efforts. My main interest in the thread was explaining how even the minor restrictions of the MIT license can be cumbersome, and why a person using permissive licenses might reasonable want something less restrictive. Er, so you're saying GPL-licensed code is usable in GPL-incompatible programs, as long as you think the authors won't object? I'm pretty sure you don't think that, so I assume I'm misunderstanding something. Where the authors declare this intention openly, and unambiguously, that's exactly what I mean. If they give an explicit licensing exception, and understand how that interacts with other GPL-licensed code, sure. Not in the general case. Do you mean that it's possible that an author might claim to release a work into the public domain, but not actually have the right to do so (eg. contractually)? That's true, but is true of all licenses ... No. Though I'll agree that that's also a possibility. I gave more detail on this issue in the message you are quoting. I read the message, didn't quite understand what you were describing, took a guess and asked if that's what you meant. Saying no, read the message again when your point didn't come across is very rarely helpful. :) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
To be precise, here is the relevant text from 17 USC 203: (a) Conditions for Termination. In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's interest. ... (4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee's successor in title. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. ... (b) ... (1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. So: 1) a copyright transfer (or reaffirmation of previous copyright transfer) contained in the author's will is not terminable by the author's personal heirs, so you can certainly block their ability to terminate if you so choose; 2) the 50% rule applies to _authorship_, which connotes (per Aalmuhammed v. Lee) a degree of creative control so high that, e. g., there is no candidate for authorship of the Linux kernel other than Linus Torvalds; 3) a later work that incorporates fragments of protected expression from the original is only encumbered if its use of that expression rises to the level of a derivative work requiring explicit grant of license, which would imply that the amount of _copyrightable_ expression copied is more than de minimis relative to the size and scope of the final work. Given the proportion of a typical piece of software that is uncopyrightable on grounds of scenes a faire, ideas and methods of operation, and so forth, it is quite unlikely that a copyright infringement claim could succeed thirty-five years after the creation of the original unless substantial, identifiable chunks have been literally copied. And if the maintainers can't reimplement those chunks without plagiarism in two years' time, they have problems much larger than those posed by 17 USC 203. Cheers, - Michael
Re: New 'Public Domain' Licence
On 6/7/05, Glenn Maynard [EMAIL PROTECTED] wrote: The GPL deliberately places obstacles to code reuse: it disallows reuse by projects that don't release every bit of linked code (more or less) under a GPL-compatible license, in the hope of increasing code reuse in the long term. I believe that to be a simple, obvious statement of fact, and not one that anyone should be offended by: the GPL restricts use of code, to use free software as an incentive for other authors to place their own works under GPL-compatible licenses. The GPL's drafters profess to believe this statement about the GPL and linked code; but it is not true under US law as I understand it, and other debian-legal contributors with actual legal qualifications in civil law countries have agreed as regards their jurisdictions. IANAL, but I can back this assertion up with case law out the yin-yang. My essay on this topic is rather long, is still in draft, and might find a more formal publication channel, so I'm disinclined to post it to d-l at this time; but anyone who would like a copy for private review need but ask, as long as they agree not to publish it. Cheers, - Michael
Re: New 'Public Domain' Licence
On Wed, Jun 08, 2005 at 12:09:28AM -0700, Michael K. Edwards wrote: On 6/7/05, Glenn Maynard [EMAIL PROTECTED] wrote: It's not so much projects that are actually around for 35 years. Rather, if you maintain a project for, say, three or four years, I reuse large chunks of it in my own project, and my project outlives yours. Decades later, you (or your heirs) have a change of heart, and revoke the license you originally granted to me for your project, which I require to use your code in mine. You don't control 50% of my work, but you easily control 50% of the work you licensed. If I want my work to remain free, I have to excise your code from it--which, decades later, probably won't be possible. It's a textbook failure of the tentacles of evil test. This whole line of argument is a canard based on a failure to research the meaning of authorship under US law. See Aalmuhammed v. Lee ( http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm ), and observe that the 17 USC 203 termination right is reserved to _authors_ and their heirs, not contributors of any quantum of expression that might by itself be copyrightable. I integrate your MP3 decoding library into my media playing software. The author of the MP3 decoding source code is very clear: you. I can only reuse that library due to the license granted to it. That license is revoked. I can no longer use the MP3 decoder[1]; if it's affected my work enough that I can not excise it from my code (so my work is not a derived work of the library), it's up a creek. This isn't a case of you contributing patches to work that I'm the author of; it's you authoring an independent work, and my integrating your work into mine--one of the most fundamental parts of free software. [1] or, for the nitpickers, can no longer distribute my work which is derived from the MP3 decoder. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: I integrate your MP3 decoding library into my media playing software. The author of the MP3 decoding source code is very clear: you. I can only reuse that library due to the license granted to it. That license is revoked. I can no longer use the MP3 decoder[1]; if it's affected my work enough that I can not excise it from my code (so my work is not a derived work of the library), it's up a creek. This isn't a case of you contributing patches to work that I'm the author of; it's you authoring an independent work, and my integrating your work into mine--one of the most fundamental parts of free software. [1] or, for the nitpickers, can no longer distribute my work which is derived from the MP3 decoder. Presumably you wrote this before reading my subsequent messages. Your use of this hypothetical MP3 library through its published interface does not create a derivative work under copyright law. But suppose you have received both license to copy and license to create and publish derivative works, and then receive the statutory minimum two-year notice of license termination. You would be well advised to find time somewhere in that two-year interval to make changes to that library sufficient to constitute creation of a derivative work, and then to freeze its API. For 17 USC 203 (b)(1) grants you the right to continue distribution of that derivative work after the termination becomes effective; and a sane court is likely to hold that localized bug fixes thereafter do not constitute preparation ... of other derivative works in excess of this privilege. Cheers, - Michael
Re: New 'Public Domain' Licence
On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: Even if your claims are true, it would still require going to court to prove, and until somebody successfully does that, very few people are going to go against the FSF's claims. So, as a matter of actual practice, my statement stands. Agreed. It'll be interesting to see whether this is addressed in the course of Wallace v. FSF. yin-yang. My essay on this topic is rather long, is still in draft, and might find a more formal publication channel, so I'm disinclined Slashdot? (Sorry, that was low. :) Pretty funny, though. ;) But actually, a lawyer of my acquaintance suggested that I consider submitting it to a law journal if it passes his review, which I found rather flattering (if improbable). 33 pages (with wide margins) is a little bit long even for /., though there's certainly room to cut some fat. Cheers, - Michael
Re: New 'Public Domain' Licence
On Wed, Jun 08, 2005 at 03:02:15AM -0700, Michael K. Edwards wrote: On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: I integrate your MP3 decoding library into my media playing software. The author of the MP3 decoding source code is very clear: you. I can only reuse that library due to the license granted to it. That license is revoked. I can no longer use the MP3 decoder[1]; if it's affected my work enough that I can not excise it from my code (so my work is not a derived work of the library), it's up a creek. This isn't a case of you contributing patches to work that I'm the author of; it's you authoring an independent work, and my integrating your work into mine--one of the most fundamental parts of free software. [1] or, for the nitpickers, can no longer distribute my work which is derived from the MP3 decoder. Presumably you wrote this before reading my subsequent messages. Your use of this hypothetical MP3 library through its published interface does not create a derivative work under copyright law. Published interface? Again, integrate into my software, not link against a published interface. Copy code directly into my program, and allow the works to merge and integrate. Another major, obvious example is forks. For 17 USC 203 (b)(1) grants you the right to continue distribution of that derivative work after the termination becomes effective; and a sane court is likely to hold that localized bug fixes thereafter do not constitute preparation ... of other derivative works in excess of this privilege. If the right to prepare derivative works is revoked, the work is clearly non-free, and we again have a failure of the tentacles of evil test. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Wednesday 08 June 2005 05:57 am, Michael K. Edwards wrote: On 6/8/05, Glenn Maynard [EMAIL PROTECTED] wrote: Published interface? Again, integrate into my software, not link against a published interface. Copy code directly into my program, and allow the works to merge and integrate. Another major, obvious example is forks. If you truly wish to do so, you may strip your heirs, in your last will and testament, of statutory termination rights, by the simple expedient of ratifying an existing assignment of copyright to a corporate entity run by the benevolent dictator of your choice. You don't even have to trust that benevolent dictator beyond the point at which your work is first published under their copyright notice and a sufficiently permissive license, as long as that license is contained in an offer of bilateral contract such as the GPL. (Unilateral grants of license, with no return consideration, are terminable at will in many jurisdictions irrespective of their ostensible term.) Sorry but this won't work either. The statue is quite clear that the termination right is non-assignable, even through a will. If you have a surviving spouse, children, or other issue then they will get the termination right under standard intestancy rules. Even when all of those folks are dead, the termination right cannot be transfered by a will, it goes into the hands of your estate's executor. On the other hand, nothing but death (or a certificate of mental incompetence, but that's a sidetrack I'm disinclined to follow) can legally stop someone from changing the terms of his or her will. So unless a person outlives his or her termination interest, or has died and his or her will (containing the above measures) has been through probate, you can't be sure that a grant of copyright license is irrevocable. Unless, of course, that person goes to the trouble of setting up a corporate shell and handling the accounting properly to substantiate a claim that his or her work was made for hire to begin with. For 17 USC 203 (b)(1) grants you the right to continue distribution of that derivative work after the termination becomes effective; and a sane court is likely to hold that localized bug fixes thereafter do not constitute preparation ... of other derivative works in excess of this privilege. If the right to prepare derivative works is revoked, the work is clearly non-free, and we again have a failure of the tentacles of evil test. Current US law does not permit a 32-year-old man to make a promise of eternal copyright license (with respect to a work not made for hire) binding on his 69-year-old future self. This is generally held to be a liberty granted to independent authors and artists (and their heirs) in recognition of both their courage and their improvidence. It is quite futile to protest this feature of the law, as it dates from 1978 and is easily circumvented (if you really want to) with a little planning and competent legal advice. Yeah, don't know what you mean here... I can't see how any amount of legal planning is going to avoid future-selves/heirs from exercising their termination rights. In any case, a limited exception is provided so that authors of licensed derivative works are not robbed of similar liberties with respect to works they have already created. So if RMS or his personal heir decides in 2020 to exercise his right to terminate, as of 2022, the assignment of his copyright in the 1985 edition of GNU Emacs to the FSF, those of us still alive will get to find out how much reimplementation can be done in two years and/or how far 17 USC 203(b)(1) privileges with respect to a still-evolving fork can be stretched. :-) Cheers, - Michael (IANAL, TINLA) -Sean p.s. I very much believe that all residences of a jurisdiction should be able to fully discuss the implication of the law and how it should be applied... but if it counts for anything, I am just finishing my 2nd year in law school having aced all of my IP course work. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On 6/8/05, Sean Kellogg [EMAIL PROTECTED] wrote:
On Wednesday 08 June 2005 05:57 am, Michael K. Edwards wrote:
If you truly wish to do so, you may strip your heirs, in your last
will and testament, of statutory termination rights, by the simple
expedient of ratifying an existing assignment of copyright to a
corporate entity run by the benevolent dictator of your choice. You
don't even have to trust that benevolent dictator beyond the point at
which your work is first published under their copyright notice and a
sufficiently permissive license, as long as that license is contained
in an offer of bilateral contract such as the GPL. (Unilateral grants
of license, with no return consideration, are terminable at will in
many jurisdictions irrespective of their ostensible term.)
Sorry but this won't work either. The statue is quite clear that the
termination right is non-assignable, even through a will. If you have a
surviving spouse, children, or other issue then they will get the
termination right under standard intestancy rules. Even when all of those
folks are dead, the termination right cannot be transfered by a will, it goes
into the hands of your estate's executor.
(a) Conditions for Termination. In the case of any work other than a
work made for hire, the exclusive or nonexclusive grant of a transfer
or license of copyright or of any right under a copyright, executed by
the author on or after January 1, 1978, otherwise than by will, is
subject to termination under the following conditions:
See that otherwise than by will part? The termination right is not
assignable through a will, but a transfer by will is not terminable.
Unless, of course, that person goes to the trouble of
setting up a corporate shell and handling the accounting properly to
substantiate a claim that his or her work was made for hire to begin
with.
[snip]
Current US law does not permit a 32-year-old man to make a promise of
eternal copyright license (with respect to a work not made for hire)
binding on his 69-year-old future self. This is generally held to be
a liberty granted to independent authors and artists (and their heirs)
in recognition of both their courage and their improvidence. It is
quite futile to protest this feature of the law, as it dates from 1978
and is easily circumvented (if you really want to) with a little
planning and competent legal advice.
Yeah, don't know what you mean here... I can't see how any amount of legal
planning is going to avoid future-selves/heirs from exercising their
termination rights.
Work-made-for-hire exception. AIUI, that's how the pros in Hollywood
work around it -- anyone whose contribution to a film rises to the
level of authorship (especially screenplay writers) and hasn't
already been completed is expected to work for hire within a
corporate shell. I don't know how they approach adaptations of novels
in which the copyright was originally held personally -- ask
Christopher Tolkien, maybe.
[snip]
p.s. I very much believe that all residences of a jurisdiction should be able
to fully discuss the implication of the law and how it should be applied...
but if it counts for anything, I am just finishing my 2nd year in law school
having aced all of my IP course work.
It's always nice to have genuinely knowledgeable people (which I am
not) in the discussion. :-) You may be right about the utilize
language in 17 USC 203 (b) (1); I ought to track down the full House
Report.
Cheers,
- Michael
(IANAL, TINLA)
Re: New 'Public Domain' Licence
On 6/8/05, Sean Kellogg [EMAIL PROTECTED] wrote: This section is not referring to transferring termination rights by will, it is referring to copyright assignment by will. So, if I assign you my copyright in FOO via a will, then the assignment is not subject to termination. However, it doesn't say anything about transferring the termination right by will. So, if our intrepid Public Domainers really want to avoid having their heirs terminating licenses, they should assign all of their copyrights to the ether, and then arrange for their immediate death. Of course, I don't really think that will work under the law of wills... nor could you forever GPL your work via a will, because the GPL does not assign the copyright. Absent a clear assignment, your copyright will transfer via intestancy and end up in the hands of your heirs... because someone's got to think of the children! We're in violent agreement here. :-) I never said (or at least never meant to say) that the termination right was assignable by will, only that it was possible to extinguish it, as regards one's heirs, by a (reaffirmation of) copyright assignment in one's will. See my earlier message for how a benevolent dictator with a shell corporation, plus the fact that the GPL is an offer of bilateral contract, helps parlay this extinction of the termination right into a GPL release that neither one's heirs nor the benevolent dictator can revoke. Yeah, maybe... but the work-for-hire doctrine is tricky business. You can't just declare something a work-for-hire, it is dependent on behavior. I find it difficult to accept that most screenplays are done as a work-for-hire, because (if I understand the industry) the author pitches a screenplay to the production house. Unless the screenplay writer is drawing a regular salary, working in house, and under the direction of the production house, it is unlikely to be considered a work-for-hire. My understanding is that screenwriters working on spec (speculation, not specification) are guided by their agents in the creation of a shell corporation which receives their royalties from past deals and doles them out to the screenwriter as salary, nominally in return for copyright in new works on a work made for hire basis. I've had occasion to follow a very similar practice when wearing my software consulting services hat, more for tax reasons than for copyright's sake. But I don't know all the ins and outs of work made for hire in a copyright context (it's actually quite different from employment law), so TIEmphaticallyNLA. For a case in the area of modern dance where the appeals court ruled, using facts determined in district court, partly for and partly against assertion of the works made for hire doctrine, see Martha Graham School v. Martha Graham Center, http://caselaw.lp.findlaw.com/data2/circs/2nd/029451p.pdf . But see also Marvel Characters v. Simon at http://caselaw.lp.findlaw.com/data2/circs/2nd/027221.html ; if the relationship is not properly structured up front, even an otherwise binding acknowledgment of works made for hire status may be repudiated for purposes of termination of assignment. It's always nice to have genuinely knowledgeable people (which I am not) in the discussion. :-) You may be right about the utilize language in 17 USC 203 (b) (1); I ought to track down the full House Report. Woah, someone saying someone else might be right on Debian-Legal!!! I am shocking, amazed, and completely humbled. Yeah, well, I'm rather proud of the fact that I can still surprise and shock people. :-) However, I think the House Report actually supports an interpretation of 203(b)(1) in which continued reproduction and distribution of a derivative work is permitted after termination of license to the original. Here is the relevant text: quote An important limitation on the rights of a copyright owner under a terminated grant is specified in section 203(b)(1). This clause provides that, notwithstanding a termination, a derivative work prepared earlier may ''continue to be utilized'' under the conditions of the terminated grant; the clause adds, however, that this privilege is not broad enough to permit the preparation of other derivative works. In other words, a film made from a play could continue to be licensed for performance after the motion picture contract had been terminated but any remake rights covered by the contract would be cut off. For this purpose, a motion picture would be considered as a ''derivative work'' with respect to every ''preexisting work'' incorporated in it, whether the preexisting work was created independently or was prepared expressly for the motion picture. /quote It's worth noting that this was written in 1976, before consumer videotape, and that Congress was thinking specifically about film performance rights rather than reproduction for retail sale. It's poorly drafted law, and Congress ought to fix it before it
Re: New 'Public Domain' Licence
On 20050606T165853-0400, Jeff King wrote: So what's wrong with a license like: You may do anything with this work that you would with a work in the public domain. I have occasionally used the following notice: Written by Antti-Juhani Kaijanaho. You may treat this file as if it were in the public domain. -- Antti-Juhani Kaijanaho, Debian developer http://kaijanaho.info/antti-juhani/blog/en/debian
Re: New 'Public Domain' Licence
On Mon, Jun 06, 2005 at 04:58:53PM -0400, Jeff King wrote: _Probably_ a Dutch judge would treat the above statement as a license that means do whatever you want, since he's supposed to reconstruct the intention of the author from such a vague statement. And do whatever you want seems the intention. Yes, it is the intention. How about a license like: Do whatever you want. The only argument I have heard against this is that you (or your heirs) may later say Oh, but I didn't really mean *anything*. Which seems silly to me, but perhaps that's why I'm a programmer and not a lawyer. Lawyers are pretty silly people, yes. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: New 'Public Domain' Licence
On Tuesday 07 June 2005 06:47 am, Andrew Suffield wrote: On Mon, Jun 06, 2005 at 04:58:53PM -0400, Jeff King wrote: _Probably_ a Dutch judge would treat the above statement as a license that means do whatever you want, since he's supposed to reconstruct the intention of the author from such a vague statement. And do whatever you want seems the intention. Yes, it is the intention. How about a license like: Do whatever you want. The only argument I have heard against this is that you (or your heirs) may later say Oh, but I didn't really mean *anything*. Which seems silly to me, but perhaps that's why I'm a programmer and not a lawyer. Lawyers are pretty silly people, yes. Perhaps lawyers are silly, but I think the law is getting a bad rap in this conversation. The issue is not with evil heirs but with termination rights and market forces. Consider for a moment a budding artist who writes a really great song. Since she's unknown she has to distribute it through a label, who has all of the market power in the deal. The result of the deal is she is poorly compensated. The song goes on to be a humongous hit and the record label makes a ton of money while our poor artist remains pennyless. To resolve this sad and not uncommon story, Congress granted the copyright holders an inalienable termination right which allows the author to revoke a license or assignment 35 years after the transfer (its a 5 year window after 35, so at 40 the chance to terminate expires). Which means that if the evil record label wants to continue to make money from the song it has to renegotiate the terms with the author or her heirs... presumably the popularity of the song puts the author in a much better position, market power wise, and will net the author a better deal than the first time 'round. Note that this right is inalienable... under no circumstances can the author give away or renounce the right. The reason is the same policy as above. If the author could sell the termination right, then the evil record label would require such a sale and still give the same lower level of compensation. By making in inalienable, the law ensures the author cannot be dooped into doing something foolish for a short-term benefit. Of course, this means that it is practically impossible to put something into the public domain prior to the expiration of the copyright. You really can't even wait 35 years after you release the software, because its 35 years from the grant... and since you can't grant the software to the public you would have to wait 35 years with each particular individual before their license becomes truly irrevocable. Certainly it is frustrating, but I think there are sound policy reasons behind the law. -Sean -- Sean Kellogg 2nd Year - University of Washington School of Law GPSS Senator - Student Bar Association Editor-at-Large - National ACS Blog [http://www.acsblog.org] c: 206.498.8207 e: [EMAIL PROTECTED] w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 02:36:27PM -0700, Sean Kellogg wrote: To resolve this sad and not uncommon story, Congress granted the copyright holders an inalienable termination right which allows the author to revoke a In other words, for their own good, Congress removed people's right to license their own creations however they see fit; they restricted freedom to preserve it. And as expected, it backfires as soon as an unexpected situation arises--such as people honestly wanting to give their creation to the world, for free, guaranteeing that the work will always remain under those terms. Certainly it is frustrating, but I think there are sound policy reasons behind the law. I disagree strongly. It's restricting what I can do with my own works, denying me the basic right to give it away for free, without the threat of revocation down the line. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tuesday 07 June 2005 02:49 pm, Glenn Maynard wrote: On Tue, Jun 07, 2005 at 02:36:27PM -0700, Sean Kellogg wrote: To resolve this sad and not uncommon story, Congress granted the copyright holders an inalienable termination right which allows the author to revoke a In other words, for their own good, Congress removed people's right to license their own creations however they see fit; they restricted freedom to preserve it. And as expected, it backfires as soon as an unexpected situation arises--such as people honestly wanting to give their creation to the world, for free, guaranteeing that the work will always remain under those terms. Yes... because SO many works are released directly into the Public Domain... foolish Congress, protecting the rights of the many over the obscure wishes of the few. If you really want to ensure your works stay forever free, then make sure you teach your mate and offspring (the only folks who can exercise your termination right other than yourself) the value of your decisions. I like the Public Domain, don't get me wrong... but I dislike strong armed corporations more, so I think the balance struck by Congress works pretty well. Certainly it is frustrating, but I think there are sound policy reasons behind the law. I disagree strongly. It's restricting what I can do with my own works, denying me the basic right to give it away for free, without the threat of revocation down the line. You sound like a corporate lawyer... they would love nothing more than for the freedom of contract to be absolute. Imagine situations where you sign away 1st amendment speech rights to get a job, or maybe whistle-blower protections. Oh yes, it would truly be a brave new world if your way of thinking ruled the day. -Sean -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 06:33:38PM -0400, Raul Miller wrote: On 6/5/05, Glenn Maynard [EMAIL PROTECTED] wrote: No disagreement here (except the implication that non-free use is the only goal--the goal is free use everywhere, and non-free use is just part of everywhere). Permissive licenses are close to public domain, and reasons for using the two are similar. Change everywhere to allowed for every person, regardless of the restrictions they then impose and I'll agree with you. Everywhere is rather silly -- there are many galaxies which will never be graced with the presence of software package $FOO.. I'm missing the point of the word-nitpick. Permissive licenses try to minimize the obstacles they present to reusing code. That said, both copyleft and public domain allow distribution to any person. The distinction is the kind of restrictions which are allowed in the context of that distribution. Public Domain allows the receiver to impose arbitrary restrictions. Copyleft restricts the receiver from imposing arbitrary restrictions. By imposing restrictions itself, which make the code impossible to use in many projects, ranging from simple GPL-incompatible projects to outright proprietary ones. (Hmm. That sounds a little inflammatory, but isn't intended to be; it's intended only as a statement of fact, acknowledging the trade the GPL makes.) The GPL very deliberately makes a trade: in exchange for less free use (eg. more restrictions), it tries to encourage giving code back to the commons and all that. GPL-licensed code is not usable, for example, in proprietary software; or even in mostly-free programs that simply have a few GPL-incompatible plugins for interoperability (eg. OpenSSL). It also assumes that the authors of the GPLed content were unaware that those restrictions would be imposed on their software and that they object. Er, so you're saying GPL-licensed code is usable in GPL-incompatible programs, as long as you think the authors won't object? I'm pretty sure you don't think that, so I assume I'm misunderstanding something. That's not a bug, of course; it's explicitly intended to discourage proprietary development, and many people who use the GPL actively wish to do so, and don't consider that restriction a problem. That's fine. But people who don't wish to do so--who, in contrast, don't consider proprietary use of code a problem, and wish to minimize political, practical and legal barriers to reuse--often prefer permissive licenses. If that's your philosophy, then you may well not want to force people to include your 20-line license, either, since that can introduce practical problems. (I'm not sure why this seems to be a controversial statement; it seems self-evident to me.) The situation here is that even though the legal properties of public domain works seem self evident, in the general case they are not. I'm a little confused. The subthread was about the costs, benefits and rationale of including a clause that says this license must be preserved on all copies, which shows up in the *-BSD and X11 licenses. Not that I mind tangenting to other relevant topics, I'm just not sure how we got there. :) For example, there are cases where an author who has released a work into the public domain may not be allowed to have a copy of that work. Do you mean that it's possible that an author might claim to release a work into the public domain, but not actually have the right to do so (eg. contractually)? That's true, but is true of all licenses ... -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 02:36:27PM -0700, Sean Kellogg wrote: Yes, it is the intention. How about a license like: Do whatever you want. The only argument I have heard against this is that you (or your heirs) may later say Oh, but I didn't really mean *anything*. Which seems silly to me, but perhaps that's why I'm a programmer and not a lawyer. Perhaps lawyers are silly, but I think the law is getting a bad rap in this conversation. The issue is not with evil heirs but with termination rights and market forces. Consider for a moment a budding I think there are actually two issues we're talking about. I was mentioning a line of reasoning I have seen here[1], which indicates that we must be explicit in crafting PD-ish licenses, because our heirs can bring suit, saying that the original author couldn't have really meant to do something so clearly to his detriment. You are, as you say, talking about termination rights. But wouldn't those be just as much an issue here as they are with, say, the GPL? -Peff [1] http://lists.debian.org/debian-legal/2005/04/msg00485.html -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 04:48:57PM -0700, Sean Kellogg wrote: Yes... because SO many works are released directly into the Public Domain... I have been on this list for about 6 weeks, and I have seen no less than three active threads regarding public domain licenses. A minority, perhaps, but certainly there are people interested in this. wishes of the few. If you really want to ensure your works stay forever free, then make sure you teach your mate and offspring (the only folks who can exercise your termination right other than yourself) the value of your decisions. I'm not worried about my works staying free. I'm worried about people who want to use my works being sure that my works will stay free. I like the Public Domain, don't get me wrong... but I dislike strong armed corporations more, so I think the balance struck by Congress works pretty well. Well, clearly I don't. :) The root cause of this problem is Congress, not an inherent balance. I don't *want* to license my work to a corporation in an irrevocable way. I want to put it in the public domain in an irrevocable way. But because there's no explicit way to do that (and I must fake my way through by using an extremely permissive license), both cases fall under the same category. With well-written legislation, they don't need to. You sound like a corporate lawyer... they would love nothing more than for the freedom of contract to be absolute. Imagine situations where you sign Now you're just being mean. I happen to agree completely with Glenn's statements. I'm not only not a corporate lawyer, but am spending considerable effort trying to figure out how in the world to just give away intellectual works which I have created on my own time. I'm sorry if that seems cold-hearted and corporate to you. -Peff -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tuesday 07 June 2005 06:10 pm, Jeff King wrote: I think there are actually two issues we're talking about. I was mentioning a line of reasoning I have seen here[1], which indicates that we must be explicit in crafting PD-ish licenses, because our heirs can bring suit, saying that the original author couldn't have really meant to do something so clearly to his detriment. Hmm... specious reasoning if you ask me. Under the copyright act your heirs get one chance to revoke your assignments, regardless of how crazy the assignment may be, and that's codified in (s)203, Termination Rights. The argument that is being made in the e-mail you referenced sounds like an unconscionable argument... which is often made, but rarely sustained in the contracts setting (it requires the clause to make the court BLUSH... yes, blushing, a legal concept). I don't believe such a doctrine exists in IP outside of the IP misuse doctrine... but that's a doctrine that deals with attempting to leverage IP to gain more rights than granted under the statute (like... I grant you use of patent, but you agree that I am the exclusive owner of the patent for the next 40 years, even though the patent will expire in 20). I don't see how that would be applicable in public domain setting. But to be clear, there is no such thing as dedication to the public domain... its just not possible under the copyright statute. Same goes for patents... you have to be very careful if you want to intentionally void your patent and dedicate it to the public. All of these near-public domain licenses are attempting to create PD-like conditions, but they are still copyright licenses and are subject to termination and the like. You are, as you say, talking about termination rights. But wouldn't those be just as much an issue here as they are with, say, the GPL? Oh yes, termination rights are certainly an issue with the GPL. However, you can't exercise termination rights on a work unless you control 50% of the work. I suggest that most projects that will be around in 35 years are of such size that no one person will have true majority control. -Peff [1] http://lists.debian.org/debian-legal/2005/04/msg00485.html -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tuesday 07 June 2005 06:21 pm, Jeff King wrote: On Tue, Jun 07, 2005 at 04:48:57PM -0700, Sean Kellogg wrote: Yes... because SO many works are released directly into the Public Domain... I have been on this list for about 6 weeks, and I have seen no less than three active threads regarding public domain licenses. A minority, perhaps, but certainly there are people interested in this. Oh, its true.. debian-legal sees lots of traffic on this topic. Its actually really amazing when you think about it. I think it would be really interesting to do a study on who is doing free software development and what kind of licenses they are using. Is the GPL losing ground?! Based on debian-legal traffic, it would sure seem so... but I think that's because most questions about the GPL have long been answered. Would be interesting to know... the GPL 3.0 drafters should would love to know. wishes of the few. If you really want to ensure your works stay forever free, then make sure you teach your mate and offspring (the only folks who can exercise your termination right other than yourself) the value of your decisions. I'm not worried about my works staying free. I'm worried about people who want to use my works being sure that my works will stay free. Its a reasonable concern... but think about the movie industry. I make a movie and license a I Write the Songs from Barry Manilow. Movie is a total failure in the box office, perhaps because it features a song by Barry Manilow, and falls into obscurity. 34 years late the movie is discovered and becomes a total cult classic with millions of back order copies. I go to have millions of copies made up for sale when I get a call from Manilow's heirs... they don't like the movie, are exercising their termination rights, and refuse to license back to me. That's it... I'm done, shows over. Even this story of a hard working corporation just trying to make good movies failed to convince Congress to remove the termination provision. I like the Public Domain, don't get me wrong... but I dislike strong armed corporations more, so I think the balance struck by Congress works pretty well. Well, clearly I don't. :) The root cause of this problem is Congress, not an inherent balance. I don't *want* to license my work to a corporation in an irrevocable way. I want to put it in the public domain in an irrevocable way. But because there's no explicit way to do that (and I must fake my way through by using an extremely permissive license), both cases fall under the same category. With well-written legislation, they don't need to. Thankfully the Copyright Act is not set in stone, and with efforts like iPAC and CDC, copyright reform will eventually come. I doubt its going spell the end of copyrights as perhaps the FSF may want, but what it might do is write in some specific sections that provide statutory muscle to licenses like the GPL. I hope that when that reform comes, Congress seriously considers a definitive way to put works (copyright and patent) into the public domain. As I see it, the availability of a clear PD dedication method shouldn't interfere with the termination policy, since anything short of a pure PD dedication would remain subject to termination. It seems doubtful that a record label will accept an artist putting a work into the PD just to avoid a termination rights dispute 35 years down the road. You sound like a corporate lawyer... they would love nothing more than for the freedom of contract to be absolute. Imagine situations where you sign Now you're just being mean. I happen to agree completely with Glenn's statements. I'm not only not a corporate lawyer, but am spending considerable effort trying to figure out how in the world to just give away intellectual works which I have created on my own time. I'm sorry if that seems cold-hearted and corporate to you. I'm really not trying to be mean. These are the sorts of disputes I have everyday in law school. Lawyers LOVE the idea of the freedom to contract. People who understand the world around them, have all the facts, and the ability to walk away should want an absolute right to contract. But I believe the law has a responsibility to those who can't always look out for themselves, who need protection from those who would take advantage of them or deny them their rights under the law. Its a fine balance, its not an easy one to achieve, and its the stuff of many a judicial opinion and law review article. If you can articulate a clear policy that meets both objectives, I know 9 people in black robes in DC who would love to hear it. -Sean -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tue, Jun 07, 2005 at 06:26:46PM -0700, Sean Kellogg wrote: You are, as you say, talking about termination rights. But wouldn't those be just as much an issue here as they are with, say, the GPL? Oh yes, termination rights are certainly an issue with the GPL. However, you can't exercise termination rights on a work unless you control 50% of the work. I suggest that most projects that will be around in 35 years are of such size that no one person will have true majority control. It's not so much projects that are actually around for 35 years. Rather, if you maintain a project for, say, three or four years, I reuse large chunks of it in my own project, and my project outlives yours. Decades later, you (or your heirs) have a change of heart, and revoke the license you originally granted to me for your project, which I require to use your code in mine. You don't control 50% of my work, but you easily control 50% of the work you licensed. If I want my work to remain free, I have to excise your code from it--which, decades later, probably won't be possible. It's a textbook failure of the tentacles of evil test. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Tuesday 07 June 2005 06:43 pm, Glenn Maynard wrote: On Tue, Jun 07, 2005 at 06:26:46PM -0700, Sean Kellogg wrote: You are, as you say, talking about termination rights. But wouldn't those be just as much an issue here as they are with, say, the GPL? Oh yes, termination rights are certainly an issue with the GPL. However, you can't exercise termination rights on a work unless you control 50% of the work. I suggest that most projects that will be around in 35 years are of such size that no one person will have true majority control. It's not so much projects that are actually around for 35 years. Rather, if you maintain a project for, say, three or four years, I reuse large chunks of it in my own project, and my project outlives yours. Decades later, you (or your heirs) have a change of heart, and revoke the license you originally granted to me for your project, which I require to use your code in mine. You don't control 50% of my work, but you easily control 50% of the work you licensed. If I want my work to remain free, I have to excise your code from it--which, decades later, probably won't be possible. It's a textbook failure of the tentacles of evil test. No argument from me... but it is the system we've got here in the States and FOSS developers should plan accordingly, just as is expected of anyone else who enters into the world of copyrights. -Sean -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On 6/7/05, Glenn Maynard [EMAIL PROTECTED] wrote: On Tue, Jun 07, 2005 at 06:33:38PM -0400, Raul Miller wrote: On 6/5/05, Glenn Maynard [EMAIL PROTECTED] wrote: No disagreement here (except the implication that non-free use is the only goal--the goal is free use everywhere, and non-free use is just part of everywhere). Permissive licenses are close to public domain, and reasons for using the two are similar. Change everywhere to allowed for every person, regardless of the restrictions they then impose and I'll agree with you. Everywhere is rather silly -- there are many galaxies which will never be graced with the presence of software package $FOO.. I'm missing the point of the word-nitpick. Permissive licenses try to minimize the obstacles they present to reusing code. You're focussing on a particular class of obstacle and ignoring another class. If you want to talk about minimizing, you really need to specify in unambiguous terms the metric which is being minimized. Put differently, not all obstacles are equivalent. You seem to be trying to talk about this in an impartial manner, but as long as you talk in terms of minimizing all obstacles you're not doing so. The GPL very deliberately makes a trade: in exchange for less free use (eg. more restrictions), it tries to encourage giving code back to the commons and all that. GPL-licensed code is not usable, for example, in proprietary software; or even in mostly-free programs that simply have a few GPL-incompatible plugins for interoperability (eg. OpenSSL). It also assumes that the authors of the GPLed content were unaware that those restrictions would be imposed on their software and that they object. Er, so you're saying GPL-licensed code is usable in GPL-incompatible programs, as long as you think the authors won't object? I'm pretty sure you don't think that, so I assume I'm misunderstanding something. Where the authors declare this intention openly, and unambiguously, that's exactly what I mean. There are other edge cases, but they're not as interesting. That's not a bug, of course; it's explicitly intended to discourage proprietary development, and many people who use the GPL actively wish to do so, and don't consider that restriction a problem. That's fine. But people who don't wish to do so--who, in contrast, don't consider proprietary use of code a problem, and wish to minimize political, practical and legal barriers to reuse--often prefer permissive licenses. If that's your philosophy, then you may well not want to force people to include your 20-line license, either, since that can introduce practical problems. (I'm not sure why this seems to be a controversial statement; it seems self-evident to me.) The situation here is that even though the legal properties of public domain works seem self evident, in the general case they are not. I'm a little confused. The subthread was about the costs, benefits and rationale of including a clause that says this license must be preserved on all copies, which shows up in the *-BSD and X11 licenses. Not that I mind tangenting to other relevant topics, I'm just not sure how we got there. :) We got here because of statements drawing analogies between those licenses and public domain licenses, and because of statements indicating that public domain or near public domain licenses were the goal. Also, because the specific example most recently posted in this thread included explicit relicening permission. For example, there are cases where an author who has released a work into the public domain may not be allowed to have a copy of that work. Do you mean that it's possible that an author might claim to release a work into the public domain, but not actually have the right to do so (eg. contractually)? That's true, but is true of all licenses ... No. Though I'll agree that that's also a possibility. I gave more detail on this issue in the message you are quoting. -- Raul
Re: New 'Public Domain' Licence
On Mon, Jun 06, 2005 at 01:38:24PM -0400, astronut wrote: *This message was transferred with a trial version of CommuniGate(tm) Pro* Jeff King wrote: The latter message is from me. I am looking for such a license, as I am trying to avoid ridiculous license propagation. My ideal license would be in one of two forms: - a common PD-ish license for which users can say Oh, the PD license and know what it means (as we do now for the BSD, MIT, and GPL licenses) - a license so short that one can look at it and know what it means (e.g., X is dedicated to the public domain, X may be redistributed in any form without restriction). The consensus I seem to read from debian-legal is that the second type can't exist, because we have to list everything explicitly or our evil heirs can revoke it. -Peff I am probably wrong here, since I joined the list in the middle of the discussion, but can't you just put a notice at the top of the code like this? /* This code was written by name and is hereby released into the public domain */ What's the public domain in the context of UK / European law? [If it exists validly in the UK, for example, how is it to be interpreted if there is a conflict in definition with European Community law?] Public Domain appears to many to be US-centric: better, by far, to have a crack at _some_ kind of licence. It is useful to have explicit permission to use freely for commercial/governmental/not for profit and personal and private use for example. Permission to modify or distribute in other forms is also useful as is explicit permission to sell or distribute as part of other media or to use the information in derivative works. All of the above could reasonably be either inferred or denied depending on how you read or interpret everything between /* and */ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
M?ns Rullg?rd wrote: astronut [EMAIL PROTECTED] writes: I am probably wrong here, since I joined the list in the middle of the discussion, but can't you just put a notice at the top of the code like this? /* This code was written by name and is hereby released into the public domain */ There are supposedly jurisdictions where the concept of public domain does not exist, and such a statement would have no meaning. The Netherlands is one. Well, we do have a public domain, but it only contains works that by law have no copyright and works whose copyright has expired. _Probably_ a Dutch judge would treat the above statement as a license that means do whatever you want, since he's supposed to reconstruct the intention of the author from such a vague statement. And do whatever you want seems the intention. But would name ever bring a lawsuit asserting copyright infringement? (Well, maybe if his moral rights were infringed but he can't give those up anyway) Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Mon, Jun 06, 2005 at 07:57:47PM +, Andrew M.A. Cater wrote: What's the public domain in the context of UK / European law? I don't know, as I am neither a lawyer nor a European. However, I assume there is some concept of a work which has passed out of copyright (due to time limitations). What is that called? What are the rights of individuals with respect to that work? It is useful to have explicit permission to use freely for commercial/governmental/not for profit and personal and private use for example. Is use actually restricted by copyright? If you receive a copy of software lawfully, are you not free to copy, run, modify, or reverse-engineer it? See the 1991 European Software Directive, for example. -Peff -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Mon, Jun 06, 2005 at 10:24:51PM +0200, Arnoud Engelfriet wrote: The Netherlands is one. Well, we do have a public domain, but it only contains works that by law have no copyright and works whose copyright has expired. So what's wrong with a license like: You may do anything with this work that you would with a work in the public domain. _Probably_ a Dutch judge would treat the above statement as a license that means do whatever you want, since he's supposed to reconstruct the intention of the author from such a vague statement. And do whatever you want seems the intention. Yes, it is the intention. How about a license like: Do whatever you want. The only argument I have heard against this is that you (or your heirs) may later say Oh, but I didn't really mean *anything*. Which seems silly to me, but perhaps that's why I'm a programmer and not a lawyer. Is there a legal way to say No, really, ANYTHING without resorting to listing all of the things (which can get quite long)? But would name ever bring a lawsuit asserting copyright infringement? It seems like it's not possible to prevent the author from bringing a suit at all (even with a public domain dedication). However, you can ideally make the suit trivially lose-able with a sufficient license. -Peff -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On 6/3/05, Glenn Maynard [EMAIL PROTECTED] wrote: You mean that the problem is that permissive licenses don't serve the goals of a copyleft? They're not supposed to. The goal (or at least one very common goal) of permissive licenses is to encourage free use of code, and it's understandable that people with this philosophy don't want to force people to include a useless license block, either. These two statements are at odds with each other. I think it's confusing and misleading to claim otherwise. Fundamentally, the goal of public domain is to allow arbtrary non-free use of the material. And the same basic goal holds for near public- domain licenses. This is why you see legal professionals in the field of copyright warning people that public domain probably isn't what they want. Free use is also allowed. But if that was the crucial goal, the GPL would be quiet adequate. -- Raul
Re: New 'Public Domain' Licence
On Sun, Jun 05, 2005 at 07:08:23PM -0400, Raul Miller wrote: On 6/3/05, Glenn Maynard [EMAIL PROTECTED] wrote: You mean that the problem is that permissive licenses don't serve the goals of a copyleft? They're not supposed to. The goal (or at least one very common goal) of permissive licenses is to encourage free use of code, and it's understandable that people with this philosophy don't want to force people to include a useless license block, either. These two statements are at odds with each other. I think it's confusing and misleading to claim otherwise. Sorry, I don't know which two statements you're referring to. A major goal of copyleft is to guarantee that anyone that receives a binary both receives the source, the ability to use it (eg. no additional restrictions), and knowledge that they can do so. These aren't goals of permissive licenses, and that's not a bug. Fundamentally, the goal of public domain is to allow arbtrary non-free use of the material. And the same basic goal holds for near public- domain licenses. This is why you see legal professionals in the field of copyright warning people that public domain probably isn't what they want. No disagreement here (except the implication that non-free use is the only goal--the goal is free use everywhere, and non-free use is just part of everywhere). Permissive licenses are close to public domain, and reasons for using the two are similar. Free use is also allowed. But if that was the crucial goal, the GPL would be quiet adequate. If you wish your code to be freely usable, in as many contexts and by as many people as possible, the GPL isn't in the running. The GPL very deliberately makes a trade: in exchange for less free use (eg. more restrictions), it tries to encourage giving code back to the commons and all that. GPL-licensed code is not usable, for example, in proprietary software; or even in mostly-free programs that simply have a few GPL- incompatible plugins for interoperability (eg. OpenSSL). That's not a bug, of course; it's explicitly intended to discourage proprietary development, and many people who use the GPL actively wish to do so, and don't consider that restriction a problem. That's fine. But people who don't wish to do so--who, in contrast, don't consider proprietary use of code a problem, and wish to minimize political, practical and legal barriers to reuse--often prefer permissive licenses. If that's your philosophy, then you may well not want to force people to include your 20-line license, either, since that can introduce practical problems. (I'm not sure why this seems to be a controversial statement; it seems self-evident to me.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
As long as whoever uses this license understands they are not, in fact, putting it in the public domain (copyright is retained)... and that this is not, in fact, a license (waver of implied warranty is a contractual provision)... and that the license is not irrevocable (after 35 years the author or heirs of the author can revoke any license, and the right cannot be waived)... then I guess this is a fine license. But I really don't understand the obsession with trying to put works in the Public Domain. Like it or not, copyright is a product of statute, not natural law, and the statutes of pretty much every industrial nation have been written to eliminate the public domain other than the expiration of the term. This is why we have things like the BSD, GPL, and the X11/MIT license. -Sean On Friday 03 June 2005 10:34 am, Anonymous wrote: I have seen quite a few people who want to licence their software as though it is in the public domain. they are often told to go with a bsd or x11 licence. They usually say they don't even whant the restrition of forcing people to include the notice. The reasoning for the use of the common licences is that they are well understood. Therefore in an attempt to satify all parties I propose the following licence for use in those types of situations. The licence I propose consists of the MIT licence below, excluding the part in the quare brackets. This licence therefore is well understood, and does not have the single restriction of the MIT licence. Copyright (c) year copyright holders Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the Software), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so[, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software]. THE SOFTWARE IS PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. Licence taken from http://www.opensource.org/licenses/mit-license.php -- Sean Kellogg 2nd Year - University of Washington School of Law GPSS Senator - Student Bar Association Editor-at-Large - National ACS Blog [http://www.acsblog.org] c: 206.498.8207 e: [EMAIL PROTECTED] w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: New 'Public Domain' Licence
First of, please use your real name when discussing things upon this list. Anonymity makes it rather difficult for others to follow your arguments, and interferes with the primary mission of debian-legal. On Fri, 03 Jun 2005, Anonymous wrote: I have seen quite a few people who want to licence their software as though it is in the public domain. they are often told to go with a bsd or x11 licence. They usually say they don't even whant the restrition of forcing people to include the notice. The MIT license is a fairly standard way to license things in a manner as close to the public domain in countries that do not have a concept of public domain. [It's not particularly new.] The licence I propose consists of the MIT licence below, excluding the part in the quare brackets. [, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software]. The part above is almost a no-op, and a good idea regardless, because it informs recipients of the work what their rights are, and enables them to sanely to exercise the granted rights upon the work. Don Armstrong -- People selling drug paraphernalia ... are as much a part of drug trafficking as silencers are a part of criminal homicide. -- John Brown, DEA Chief http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Fri, Jun 03, 2005 at 12:53:34PM -0700, Don Armstrong wrote: First of, please use your real name when discussing things upon this list. Anonymity makes it rather difficult for others to follow your arguments, and interferes with the primary mission of debian-legal. I usually just ignore anonymous/pseudonymous messages on technical lists. The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software]. The part above is almost a no-op, and a good idea regardless, because it informs recipients of the work what their rights are, and enables them to sanely to exercise the granted rights upon the work. It doesn't necessarily allow people to do much of anything. If I'm distributing a closed work that uses a few pages of MIT-licensed code, there's no practical value in showing the MIT license (or other permissive licenses) to users. Why, as a user or a programmer, should I care that the portions of a black box that come from Lua are under a permissive license? Saying this program uses Lua has value--giving credit--but telling me that I can freely distribute the part that is Lua has no value, since I can't actually do so (it's tucked away inside a binary; if I want Lua, I'll go download the source). In fact, it's potentially confusing; you have to be careful to be clear that only certain embedded portions are under the license, not the work as a whole. Also, due to license proliferation, different MIT-ish projects are actually under a collection of slightly varying permissive licenses, which prevents simply listing the one license and merging the copyright holder names--it's not hard to end up having to list half a dozen variants. For a project whose documentation is a simple plug it in, turn it on, don't stick your fingers in the fan pamplet, this isn't a trivial problem--the licenses can be bigger than the documentation. I use the MIT license myself, but I can say from experience that there in some scenarios, it has costs without any benefit. I do think this is a minor bug in the license: many people (such as myself) who use permissive licenses do so specifically to make it easy for anyone to use their code for any purpose, even proprietarily, without licensing getting in the way. I don't consider this significant enough to offset the cost of proliferating a new license, but I think it's worth acknowledging. If anyone really wants a license that doesn't have this problem, there's libpng's, which only requires the license statement in source distributions. (Unfortunately, the name of the software, The PNG Reference Library, is used in the main body of the license, so changes beyond the copyright notice are required--unlike the MIT license, it's not a simple drop-in license. It also has an obnoxiouly wordy Contributing Authors section, instead of simply using a (c) notice.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Fri, 03 Jun 2005, Glenn Maynard wrote: On Fri, Jun 03, 2005 at 12:53:34PM -0700, Don Armstrong wrote: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software]. The part above is almost a no-op, and a good idea regardless, because it informs recipients of the work what their rights are, and enables them to sanely to exercise the granted rights upon the work. telling me that I can freely distribute the part that is Lua has no value, since I can't actually do so (it's tucked away inside a binary; if I want Lua, I'll go download the source). The value it has is informing you that some part of that codebase is Lua and that you can go download the source to Lua to get at that part of the codebase... or, you can reverse engineer that portion of the code to get back at Lua... or exercise any other right (useful or not) that the MIT license gives you. [Most of this issue here is just a straight forward problem with non-copyleft licenses...] Also, due to license proliferation, different MIT-ish projects are actually under a collection of slightly varying permissive licenses, Yeah, the rest of this is really a problem with license promulgation, which is something that modifying the MIT isn't going to help with at all. Don Armstrong -- The solution to a problem changes the problem. -- Peer's Law http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: New 'Public Domain' Licence
On Fri, Jun 03, 2005 at 04:39:12PM -0700, Don Armstrong wrote: On Fri, 03 Jun 2005, Glenn Maynard wrote: telling me that I can freely distribute the part that is Lua has no value, since I can't actually do so (it's tucked away inside a binary; if I want Lua, I'll go download the source). The value it has is informing you that some part of that codebase is Lua and that you can go download the source to Lua to get at that part of the codebase... or, you can reverse engineer that portion of the code to get back at Lua... or exercise any other right (useful or not) that the MIT license gives you. [Most of this issue here is just a straight forward problem with non-copyleft licenses...] You mean that the problem is that permissive licenses don't serve the goals of a copyleft? They're not supposed to. The goal (or at least one very common goal) of permissive licenses is to encourage free use of code, and it's understandable that people with this philosophy don't want to force people to include a useless license block, either. Actually, nothing about the MIT license says anything about telling people that you use a library, or that you can get it anywhere. A copy of the Lua license is attached, just as an example: the word Lua appears nowhere in the license. Including the license doesn't even give any hint about Lua, unless you already know it exists! You can't reverse-engineer that portion of the code to get back at Lua, because there's no way to tell which parts are Lua, which parts have had copyrightable modifications applied which are not under Lua's license, and which parts are entirely unrelated to Lua. I don't see any benefit in twisting people's arms to put big blobs of text informing people that it's theoretically legal to do something, when it's neither possible nor useful in practice. Telling people this is just wasting their time. (The warranty disclaimer is another issue, though.) -- Glenn Maynard Copyright (C) 2003,2004 Tecgraf, PUC-Rio. Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the Software), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
