Re: Some licensing questions regarding celestia
On Monday, Sep 22, 2003, at 01:15 US/Eastern, Nathanael Nerode wrote: I'd like to nail it as open as humanly possible, so I'd like to apply to to anyone receiving a derivative work based on the work as well, unless there's a legal complication in that. Anthony DeRobertis wrote: Well, that's not public domain any more. If I take a public domain work, create a derivative work, then I have copyright over my portions of the derivative work, and can license it how I want. You misunderstand me. I want to give a license to *my* work (not the derivative work) to anyone receiving a derivative work, regardless of whether they receive my work or not. :-)
Re: Some licensing questions regarding celestia
On Monday, Sep 22, 2003, at 01:15 US/Eastern, Nathanael Nerode wrote: I'd like to nail it as open as humanly possible, so I'd like to apply to to anyone receiving a derivative work based on the work as well, unless there's a legal complication in that. Well, that's not public domain any more. If I take a public domain work, create a derivative work, then I have copyright over my portions of the derivative work, and can license it how I want.
Re: Some licensing questions regarding celestia
Sorry it took me so long to get back to you; I was out of town on an emergency. I wrote: So, what do you recommend for someone who really *wants* to put something in the public domain? Rick Moen wrote: Do you intend that as a real, non-rhetorical question? If so, I Yes. recommend BSD licence with no advertising clause (or MIT/X). I mean, Not good enough. I don't want to require that subsequent users reproduce a copyright notice or a license text *at all*. I want to waive *all* rights which I have as a consequence of copyright. (I do want to retain any *non-copyright*, non-trade-secret rights I may happen to have.) why would you _not_ want the shield against warranty claims? That's not the issue, the above is. Do you think that if *I* include a warranty disclaimer, but do not *require* all subsequent redistributors to include one, that *I* would be liable (rather than the subsequent redistributor who failed to include one)? If so, I'd love to know why. And if that person objects that, no, he really, really wants to destroy his copyright and make the code be actually (or at least effectively but for certain so) public domain, then I would advise him that it's an imperfect world, and nobody knows how to do that without the risk of creating very troublesome legal questions for the remaining duration of the copyright term. Well, that's a non-answer. There's absolutely no reason an effective public domain license shouldn't be possible. I haven't seen one yet though. Oddly enough, a UK acquaintance of mine (from OSI license-discuss) was in contact with several of the notables (including Prof. Lessig) whose names are cited as founders, to see if they endorsed such site contents as the Public Domain Dedication at http://creativecommons.org/licenses/publicdomain/ . He reports[2] that they do not, and apparently the matter is the subject of some controversy. I have not yet inquired with them directly, though I may get around to doing so. Interesting. I wrote: No such thing. Warranties are incurred by distribution and stuff like that, not by ownership. Rick Moen wrote: (Please note that my use of the term owner was intended to connote author or issuer, in this context.) Ah... owner meant copyright holder to me. :-) If you are trying to assert that being the identifiable author of a piece of code that is claimed to have done harm would not subject you to liability claims, I would suggest you are mistaken. If I wrote it and kept it secret; and it was distributed without my authorization; and used to cause harm, I am quite sure I would not be subject to any liability claims. Or if I would be, then the legal system is totally off the wall. But we're getting off the topic. -- Nathanael Nerode neroden at gcc.gnu.org http://home.twcny.rr.com/nerode/neroden/fdl.html
Re: Some licensing questions regarding celestia
Quoting Anthony DeRobertis ([EMAIL PROTECTED]): Why not do something like: statement (maybe) releasing work to public domain If the above is not legally possible, then (name[s]) grant(s) you and any other party receiving this code a perpetual, irrevocable, royalty-free license to [everything copyright law prohibits]. This is great, except that I think we need a list here of everything copyright law prohibits! Which is well beyone my ability, given the numerous expansions in copyright law! (name[s]) additionally grant(s) you a royalty-free... license to do anything else that you would be allowed to do with a work in the public domain. It is the intent of (name[s]) that this work be treated as if the public domain statement above is valid. What would be wrong with that? Best case, it is public domain; worst case, it is public domain in all but name. I'd like to nail it as open as humanly possible, so I'd like to apply to to anyone receiving a derivative work based on the work as well, unless there's a legal complication in that. Rick Moen said: I like it; it would probably work (my guess). The only thing wrong with it is there's no exclusion of warranties and damages, a la BSD or MIT/X I still can't for the life of me understand why anyone would _not_ want those on a work one is handing out for free, but to each his own. Issuing a warranty disclaimer is fine and good. Requiring subsequent users to reproduce your warranty disclaimer is worth avoiding in a public-domain-in-all-but-name license. :-) (The warranty disclaimer is not really part of the license proper.) Perhaps we can polish up the above license draft and turn it into the Effective Public Domain License? Then push it at Creative Commons? :-) --Nathanael Nerode
Re: Some licensing questions regarding celestia
On Mon, Sep 08, 2003 at 07:54:35PM -0700, Don Armstrong wrote: On Mon, 08 Sep 2003, Rick Moen wrote: Moreover, the enforceability of shrinkwrap licences has been heavily contested and is in ongoing doubt, as they have tended to be ruled to be contracts of adhesion (i.e., lacking in meaningful privity of contract). Certainly. But the mere application of the standards of contracts to them is indicative of case law considering them as contracts, which is why I brought those citations up. Um. Shrinkwrap licenses are essentially different from free software licenses, because they RESTRICT rather than PERMIT. You keep ignoring this difference. A contract would be the only way to impose restrictions beyond those specified by copyright law, so the shrinkwrap licensses were examined to see if they qualified as contracts. There's no need to examine the GPL that way. Richard Braakman
Re: Some licensing questions regarding celestia
On Sun, 7 Sep 2003, Don Armstrong wrote: On Sat, 06 Sep 2003, Rick Moen wrote: Assuming we're talking about USA jurisdictions: 17 USC 106 et seq. enumerates rights reserved to copyright owners by default. Others are conveyed automatically to any lawful recipient of a covered work -- the default licence implicit in copyright law. 17 USC 106 (3) lists four ways for a copy to be distributed. 106. Exclusive rights in copyrighted works: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; This paragraph clearly refers to distribution of _existing_ copies, not to creation of new ones. There explicitly mentioned the transfer of ownersip of copies tangible medium Rental and lending are pretty much out of scope for software, licenses preclude sale, so what we're pretty much only discussing lease of the software, subject to the terms of the license. ...and, therefore, all following speculations are meaningless.
Re: Some licensing questions regarding celestia
On 2003-09-09, Don Armstrong [EMAIL PROTECTED] wrote: On Mon, 08 Sep 2003, Steve Langasek wrote: Also, the UCITA has been happily rejected by a fair number of the states where it was originally proposed and is being disputed elsewhere, so it's not much of a precedent. True. I was merely using it to point out the direction that statute seems to be headed. There are clauses of UCITA that I really dislike, and I'm glad it hasn't been made law everywhere. But it does embody a substantial amount of current legal thought. The UCITA is officially dead. On August 1, the NCCUSL disbanded the UCITA standing committee was discharged and they decided to not expend any additional Conference energy or resources in having UCITA adopted. See http://www.nccusl.org/nccusl/DesktopModules/NewsDisplay.aspx?ItemID=56 http://[EMAIL PROTECTED]/happening.html So the question of whether software licenses that claim to be leases are actually valid remains a question for the court. OTOH, a license like the GPL does not claim to be a lease in any way; I don't see how it could be interpreted that way. Peace, Dylan Thurston
Re: Some licensing questions regarding celestia
Don Armstrong [EMAIL PROTECTED] writes: Once again: I am subscribed to -legal. Please follow debian list policy and refrain from Cc:'ing me. Please use X-Followups-To or a similar tool if it matters that much to you. I can't promise I'll remember on every message. On Mon, 08 Sep 2003, Thomas Bushnell, BSG wrote: They are *grants of permission*, which is an existing well-established category. The closest traditional analog in the old common law was permission to enter another's land. Another way to put it is that they are enforceable promises not to sue for copyright enfringement. In all the instances where I'm aware of similar grants of permision and verbal promises being tested, they have been tested as if they were verbal contracts. Well, you aren't that aware then.
Re: Some licensing questions regarding celestia
Don Armstrong [EMAIL PROTECTED] writes: Why do the attorneys in Specht v. Netscape fail to bring to fore this other form of licensing? Because, I believe, it's irrelevant. Non-contractual copyright licensing can't restrict things that aren't already restricted by copyright law, and the dispute there was about things that weren't restricted by copyright law.
Re: Some licensing questions regarding celestia
Rick Moen schrieb/wrote: You're saying there are _no_ other required elements of contract formation under German law? That seems very difficult to believe. ... Are you saying that parties to German contracts aren't required to have the legal capacity to enter into contracts? Are they binding against infants? It *is* necessary. But capacity is usually not cited as a requirement but lack of capacity as an impediment. The difference is only in terminology. What is not needed from your list is: Communication of the offer to the other party (can be waived).[1] Consideration (completly missing). Genuineness of assent (contract is valid but can be rescinded). Please also note that a form is only necessary in very rare cases (contracts on real property and debt guarantees are the most common examples). Claus [1] This can be very interesting for software licences. -- http://www.faerber.muc.de/ -- http://www.bayern-gewinnt.de
Re: Some licensing questions regarding celestia
On Tue, Sep 09, 2003 at 11:05:32AM -0700, Thomas Bushnell, BSG wrote: Once again: I am subscribed to -legal. Please follow debian list policy and refrain from Cc:'ing me. Please use X-Followups-To or a similar tool if it matters that much to you. (true, but) I can't promise I'll remember on every message. What he's asking for is the list policy default. You know this. If you won't fix your mailer, you'll continue to get complaints. :) -- Glenn Maynard
Re: Some licensing questions regarding celestia
Glenn Maynard [EMAIL PROTECTED] writes: I can't promise I'll remember on every message. What he's asking for is the list policy default. You know this. If you won't fix your mailer, you'll continue to get complaints. :) I didn't object to his complaint. A good solution, rather than looking for the assignment of blame, is for everyone to help solve it. Debian has a different policy than is standard elsewhere. I would love a way for my emacs to automatically tell, but frankly, I don't have the time to set it up myself. If someone can give me a snippet for gnus, I'm happy to give it a shot. Thomas
Re: Some licensing questions regarding celestia
Thomas Bushnell, BSG [EMAIL PROTECTED] wrote: Glenn Maynard [EMAIL PROTECTED] writes: I can't promise I'll remember on every message. What he's asking for is the list policy default. You know this. If you won't fix your mailer, you'll continue to get complaints. :) I didn't object to his complaint. A good solution, rather than looking for the assignment of blame, is for everyone to help solve it. Debian has a different policy than is standard elsewhere. I would love a way for my emacs to automatically tell, but frankly, I don't have the time to set it up myself. If someone can give me a snippet for gnus, I'm happy to give it a shot. Could the list software add a Mail-Followup-To line if one were not already present? Peter
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): Making a contract is no violation of the Berne Convention (and contract doesn't mean you have always to sign anything). I'm sure you'll have noticed that I didn't say it was. There are different ways to implement the rules of the Berne Convention, and there are a lot of countries who did the way Germany did. Cite, please. (I assume you mean insist that all software licences must apply through contract law mechanisms.) -- Cheers,Cthulhu loves me, this I know; because the High Priests tell me so! Rick Moen He won't eat me, no, not yet. He's my Elder God, dank and wet! [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): The question whether a copyright license necessarily is a contract has nothing to do with the Berne Convention. I'm sure you'll have noticed that I didn't say it did. (As with my making that same comment to Andreas, I'm being _ironic_: Plainly, you didn't bother to read my post carefully, since you are reading into it a meaning wildly different from its plain sense.) Germany, like most European countries, does not require consideration to be present in a contract. That is vaguely interesting to know. If I make an offer and you accept it, we've got a contract. You're saying there are _no_ other required elements of contract formation under German law? That seems very difficult to believe. In English-derived common law legal systems (such as that of the USA), the required elements are: Agreement: Offer. This entails: Quantity (what is being exchanged) Time (when the contract must be performed) Identification of parties Price Subject matter (what is the person making the offer willing to give) (Additionally, there must be serious intent to enter into a bargain, and certainty and definiteness of terms.) Acceptance. This entails: Serious intent to be bound. Communication to offeror. (Offer and acceptance jointly establish privity of contract.) Consideration. Capacity (of offeror and offeree). Lawful purpose. Genuineness of assent (no fraud, duress, undue influence). Form (i.e., some kinds of contract must be of written form). Are you saying that parties to German contracts aren't required to have the legal capacity to enter into contracts? Are they binding against infants? Somehow, I rather doubt it. -- Cheers, First they came for the verbs, and I said nothing, for Rick Moenverbing weirds language. Then, they arrival for the nouns [EMAIL PROTECTED] and I speech nothing, for I no verbs. - Peter Ellis
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): B downloading from A is not a problem. The problem is: How can C get a valid contract from A, but he is downloading only from B? Well, A has said GPLv2, and within the first condition he has given implicit permission to make a GPLv2-contract on his behalf to anyone who has a piece of GPLv2-source of him. Under common law (and extensions such as the Uniform Commercial Code), the required contract element of acceptance entails _communication_ of that acceptance to the offeror. Obviously, C's acceptance per that framework is legally problematic. (Informally, one speaks of a meeting of the minds being required.) -- Cheers,Cthulhu loves me, this I know; because the High Priests tell me so! Rick Moen He won't eat me, no, not yet. He's my Elder God, dank and wet! [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): 17 USC 106 (3) lists four ways for a copy to be distributed. [...] If you think 17 USC limits the means of distribution of a copyrighted work's instance to only four, and somehow precludes for software anything other that sale or lease, then I think you have an extremely active imagination. _Obviously_ the Copyright Act in no wise addresses, let alone restricts, the ways in which works may be distributed. Be serious. In such a case, the licensor has no more rights than granted to him by copyright law. Well, duh. If there is no privity, there can be no contract, therefore the rights granted are granted by statute. That is a non-sequitur, and you are begging the question: Open-source licences such as GPLv2 and the BSD licence are _founded_ in the assumption that licensors may grant rights above and beyond the statutory ones, with attached conditions. Perhaps I'm missing some key point, but I don't see how we can use such software save under a valid license or leasing agreement persuant to section 106 (3) and following the legal forms of a lease. Yes, you are indeed missing a key point. Sorry, but this has become tedious. -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
* Rick Moen [EMAIL PROTECTED] [030908 10:01]: Are you saying that parties to German contracts aren't required to have the legal capacity to enter into contracts? Are they binding against infants? Somehow, I rather doubt it. I don't know the law, but think there are some restrictions for contracts to be valid, but I heared the German law has the term contract on quite a lower basis. I was told, that in an typical sale there are several contracts involved: The contract about the sale itself, which binds the persons to doing the rest. The changing of the ownership of the good (Normaly done in the moment the good is handed by one person to the other). And the contract done by paying. (if it's cash. Don't want to know how many contracts are in place with more complicated things). I wouldn't be supprised if the offer to sell something by putting a price tag at it or advertising it in some form was also a binding contract... Hochachtungsvoll, Bernhard R. Link -- Sendmail is like emacs: A nice operating system, but missing an editor and a MTA.
Re: Some licensing questions regarding celestia
Rick Moen wrote: Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): The question whether a copyright license necessarily is a contract has nothing to do with the Berne Convention. I'm sure you'll have noticed that I didn't say it did. You said in your previous message that you had in mind the overwhelming majority of jurisdictions that have copyright regimes in line with the Berne Convention and that lack such additions. I interpreted this to mean that you thought that the BC was somehow relevant to Andreas' comment that in Germany you always make a contract, even with GPL. So now I am curious why you brought up the BC at all? If I make an offer and you accept it, we've got a contract. You're saying there are _no_ other required elements of contract formation under German law? That seems very difficult to believe. There are of course other elements, such as the capacity of the parties, the manner of making the offer and the acceptance, whether offer or acceptance was made under duress or under wrong impressions, and so on. However I was addressing the specific point of consideration - under German law, as well as under most other civil law codes, no consideration is necessary. Hence my next sentence: Even if I get nothing from you in return. Let's say I offer to give (donate) you a painting. You have to do nothing but accept it. I do not ask anything in return. Assuming all elements other than consideration are in order, is there a contract under US law? Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Re: Some licensing questions regarding celestia
* Rick Moen ([EMAIL PROTECTED]) [030908 10:05]: Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): If I make an offer and you accept it, we've got a contract. You're saying there are _no_ other required elements of contract formation under German law? That seems very difficult to believe. There are some, but not always, and not at the question of contract, but of validity of offer and acceptance. In English-derived common law legal systems (such as that of the USA), Thank you for your explanation of the common law. Well, we really have two legal systems in the world, the Roman Law (including the countries of both Roman Empires, that including Russia as sucessor of the east-roman empire, and the holy roman empire as sucessor of the west-roman empire and it's sucessors Spain, France and Germany and the other European countries except England and Ireland, all including their allied countries and other areas in near relation), and the common law (including the Kingdom of England and Wales, the Kingdoms united with these (Scottland, Northern Ireland), their (former) united and allied countries, their empire, the common-wealth, ...). The two legal systems are total different. Are you saying that parties to German contracts aren't required to have the legal capacity to enter into contracts? Are they binding against infants? Somehow, I rather doubt it. I'm speaking about German law now, which is one of the most abstract law systems of the Roman Law; most others are a bit more simple, but similar (as they all have the same predecessor). A important thing in Germany is that the (base) contract just says who must do what, but their are extra contracts of the actual doing, and the validity of each contract is viewed seperate. For a contract, you need matching declarations of intent from all parties. There are many thing why making a contract could fail. Some make the contract void per se (nichtig), some give a party the right to make the contract void (anfechtbar). In each of these cases, the law says who has to pays whose expenses. Speaking of the declarations of intent now: Normal persons can make their own declarations of intent. However, this can fail if they don't mean it serious (nichtig if obvious; otherwiese anfechtbar), because of error (anfechtbar), ... Persons who are non-contractually capable (persons until age of seven, or with certain illnesses) are not able to make a declaration of intent. Persons who are over seven, but not of full age, can make their own declaration of intent only in certain cases; by default their declarations are void and whoever is interessted in their validity must prove that this was an exemption. Persons can make declarations of intent in name of someone else if they are responsible by law (parents by default for their children with certain restrictions, executive board for their companies, ...), have explicit mandate or mandate by law. Well, all this can of course fall in certain cases. The declaration could also fall due to legal prohibitations or restrictions. E.g. for transfer (and similar) of real estate there is a notarial act necessary. A violation again a restriction means usually a contract is void; in some cases it changes only some meanings (e.g. at renting of a flat for living the contract has the legal defaults if the contract is not written on one sheet of paper). The normal cases and defaults are written in a common part of the law, the special cases at the special part for different contract types. So, things that fail in common law at the question Is this a contract, falls in Germany at the question are there non-void declarations of intent; however, contract is here a more generalised term. We use the term two-sided contracts for contracts where both parties give something of equal value (e.g. buying something), and one-sided contracts if only one party has to give, and mixed contracts for mixed ones. Now to a example: Two persons A and B meet (anywhere where German law is undoubtly valid), and A (full age) is making B (older than 7, but not full age) the present of a chewing-gum. This means: A says Do you want that, B says yes (or they express their intent by any other means). That makes a donation, but 1. donations are only valid in certain forms. This would make the contract void. However, for donations is a special clause that the declaration of intent is valid as soon as the donation is really done (means here: the ownership of the chewing-gum has changed). 2. B is under full age. However, between 7 and full age persons could make a declaration of intent as long as they have only legal advantages - as in this example. So, we have a valid contract of a donation as soon as the ownership is transfered. If we look at a a bit more complicated example and B is buying something from A, the contract about buying would be void(*), and the contract of the transfer of money also(*), but the contract of the transfer of
Re: Some licensing questions regarding celestia
On Sun, Sep 07, 2003 at 01:49:12AM -0700, Don Armstrong wrote: 17 USC 106 (3) lists four ways for a copy to be distributed. 106. Exclusive rights in copyrighted works: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; Rental and lending are pretty much out of scope for software, licenses preclude sale, so what we're pretty much only discussing lease of the software, subject to the terms of the license. Um, you missed or other transfer of ownership. The recipient gains ownership of a copy (and sometimes this is an actual sale, where money changes hands), and gets a license to make and distribute further copies under certain conditions. Richard Braakman
Re: Some licensing questions regarding celestia
Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): You said in your previous message that you had in mind the overwhelming majority of jurisdictions that have copyright regimes in line with the Berne Convention and that lack such additions. I interpreted this to mean that you thought that the BC was somehow relevant to Andreas' comment that in Germany you always make a contract, even with GPL. So now I am curious why you brought up the BC at all? Copyright regimes around the world tend to be more similar than different in large part because they've mostly been brought into harmony with the Berne Convention. I had thought this was a familiar notion. There are of course other elements, such as the capacity of the parties, the manner of making the offer and the acceptance, whether offer or acceptance was made under duress or under wrong impressions, and so on. OK. If you're going to be so picky as to object to a general observation as having exceptions in a few jurisdictions (especially when those exceptions are known from recent discussion), then I'd suggest you should yourself be careful to speak precisely. Let's say I offer to give (donate) you a painting. You have to do nothing but accept it. I do not ask anything in return. Assuming all elements other than consideration are in order, is there a contract under US law? I'll tell you what: I've posted the required elements of contract formation under common law (and UCC, which technically would apply in that example). You figure it out. Have fun. -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): Thank you for your explanation of the common law. You're quite welcome. Well, we really have two legal systems in the world, the Roman Law (including the countries of both Roman Empires, that including Russia as sucessor of the east-roman empire, and the holy roman empire as sucessor of the west-roman empire and it's sucessors Spain, France and Germany and the other European countries except England and Ireland, all including their allied countries and other areas in near relation), and the common law (including the Kingdom of England and Wales, the Kingdoms united with these (Scottland, Northern Ireland), their (former) united and allied countries, their empire, the common-wealth, ...). The two legal systems are total different. There is also Muslim law. Yes, I'm quite well aware of the legal systems influenced by the Napoleonic Code on the Continent. (It is not very accurate to call that Roman Law.) And I'm sure it's a fascinating side-discussion, but one I'd rather not have at this time. Still, I do appreciate your posting the details of German contract formation. -- BLINKResize your browser so the following line touches both margins!/BLINK HR WIDTH=75% Best Regards, Rick Moen, [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): [USA Copyright Act:] It lists the four ways in which a copyright holder has the exclusive right to distribute a work. Leasing is the type of distribution typically considered for software. Leases follow the forms of Contract Law. What other type of distribution are we talking about here? Your implicit assumption that methods of distribution of a copyrighted work must be enumerated specifically in the Copyright Act in order to be lawful is blatantly absurd, and I do not accept it. I have now said that twice. If the license does not meet the conditions of a contract, the license is invalid, and any grants of permision contained within the license are null and void. That is the same non-sequitur as it was in your last message. You are repeating yourself. Of course. The entire point here is that the granting of permisions merely follows the forms of Contract Law. Nothing more. No, it does not follow the forms of contract law. There is (typically) no acceptance conveyed to the licensor, for one thing. Moreover, you are ignoring my basic point that the question of contract formation is irrelevant to the mechanism by which the specified licences operate. Since nothing in Copyright Law (or any other segment of law that I'm aware of) restricts the rights you can give away, Contract Law allows you to create a legally binding agreement to give away those rights subject to conditions. Although _that_ statement may also be true, it is irrelevant to the preceding discussion: There need not _be_ formation of a contract for copyright law to apply, and for copyright-based licences such as GPLv2 and the BSD licence to apply though that law. (Claimed exception of German law noted again in passing.) -- Cheers, I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, [EMAIL PROTECTED] denigrate means 'put down'. -- Bob Newhart
Re: Some licensing questions regarding celestia
Quoting Richard Braakman ([EMAIL PROTECTED]): Um, you missed or other transfer of ownership. The recipient gains ownership of a copy (and sometimes this is an actual sale, where money changes hands), and gets a license to make and distribute further copies under certain conditions. Thank you. Really, I wasn't going to spend time running through the USA Copyright Act trying to find specific authorisation in it for putting works out in public without selling or leasing them -- as plainly that would not be necessary for it to apply subject to the copyright regime -- but it's good to hear that such wording is (apparently) actually in there. -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Joe Moore ([EMAIL PROTECTED]): If that is the case (that a meeting of the minds is required for a valid contract to be formed), and a contract is required for a software license, then where is the meeting when Dell resells Microsoft's software? Allegedly, Dell is operating as Microsoft Corp's business agent, pursuant to an ongoing agency relationship. (Do we need to get into the law of agency?) -- BLINKResize your browser so the following line touches both margins!/BLINK HR WIDTH=75% Best Regards, Rick Moen, [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
* Rick Moen ([EMAIL PROTECTED]) [030908 17:35]: Quoting Joe Moore ([EMAIL PROTECTED]): If that is the case (that a meeting of the minds is required for a valid contract to be formed), and a contract is required for a software license, then where is the meeting when Dell resells Microsoft's software? Allegedly, Dell is operating as Microsoft Corp's business agent, pursuant to an ongoing agency relationship. (Do we need to get into the law of agency?) And a random user who has legally GPLed software and gives that to anyone else is a agent of the copyright owner of that piece of GPL-software. Cheers, Andi -- http://home.arcor.de/andreas-barth/ PGP 1024/89FB5CE5 DC F1 85 6D A6 45 9C 0F 3B BE F1 D0 C5 D1 D9 0C
Re: Some licensing questions regarding celestia
Rick Moen wrote: Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): You said in your previous message that you had in mind the overwhelming majority of jurisdictions that have copyright regimes in line with the Berne Convention and that lack such additions. I interpreted this to mean that you thought that the BC was somehow relevant to Andreas' comment that in Germany you always make a contract, even with GPL. So now I am curious why you brought up the BC at all? Copyright regimes around the world tend to be more similar than different in large part because they've mostly been brought into harmony with the Berne Convention. I had thought this was a familiar notion. True. However, since we were discussing whether a license necessarily is a contract, it seems strange to bring up a copyright treaty that has nothing to do with contracts. There are of course other elements, such as the capacity of the parties, the manner of making the offer and the acceptance, whether offer or acceptance was made under duress or under wrong impressions, and so on. OK. If you're going to be so picky as to object to a general observation as having exceptions in a few jurisdictions (especially when those exceptions are known from recent discussion), then I'd suggest you should yourself be careful to speak precisely. As the context of the discussion was Andreas' comment about the GPL always being a contract in Germany, it seemed logical to me people would understand I was talking about that. I will be sure to be more precise in the future. Anyway, I think the only thing we can conclude is that it is in some countries possible for the GPL to be interpreted as a contract, and in some countries it is not. Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Re: Some licensing questions regarding celestia
On Mon, 08 Sep 2003, Rick Moen wrote: Your implicit assumption that methods of distribution of a copyrighted work must be enumerated specifically in the Copyright Act in order to be lawful is blatantly absurd, and I do not accept it. The issue is not whether they are lawfull or not, but merely that those are the only forms of distribution available exclusively to the copyright holder. No, it does not follow the forms of contract law. See MA Mortenson v. Timberline;[1] Pro CD v. Zeidenburg; In ProCD, which involved a retail purchase of software, the Seventh Circuit held software shrinkwrap license agreements are a valid form of contracting under Wisconsin's version of U.C.C. section 2-204, and such agreements are enforceable unless objectionable under general contract law such as the law of unconscionability. ProCD, 86 F.3d at 1449-52. (The above is a quote from MA Mortenson about ProCD) There is (typically) no acceptance conveyed to the licensor, for one thing. Then as has been shown in various shrinkwrap cases, the entire license is null and void. [See Spect et al v. Netscape] Since nothing in Copyright Law (or any other segment of law that I'm aware of) restricts the rights you can give away, Contract Law allows you to create a legally binding agreement to give away those rights subject to conditions. Although _that_ statement may also be true, it is irrelevant to the preceding discussion: There need not _be_ formation of a contract for copyright law to apply, Copyright law applies regardless. and for copyright-based licences such as GPLv2 and the BSD licence to apply though that law. The validilty and application of the license is subject to applicable contract law. See the cases cited above. Don Armstrong 1: http://caselaw.findlaw.com/scripts/getcase.pl?court=wavol=677964majinvol=1 -- Guns Don't Kill People. *I* Kill People. http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpK1xj0ctWEZ.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, 08 Sep 2003, Richard Braakman wrote: Um, you missed or other transfer of ownership. I didn't see it being applicable to software licences in general. The recipient gains ownership of a copy (and sometimes this is an actual sale, where money changes hands), and gets a license to make and distribute further copies under certain conditions. Sure, but we're generally not talking about sale or transfer of ownership in the context of free software licenses, because the license limits what you can do with your copy. That is, I often can't take my copy, modify it, and resell the binary to someone else like I could do with any other tangible copyrighted work. Regardless, if you could find another form of distribution that would fit in with the licensing scheme used by software, I'm all ears. Leasing just seems to fit the bill best, and it's used already as a statutory basis for software licenses. [See UCITA (formerly UCC 2B)] Don Armstrong -- Our days are precious, but we gladly see them going If in their place we find a thing more precious growing A rare, exotic plant, our gardener's heart delighting A child whom we are teaching, a booklet we are writing -- Frederick Rükert _Wisdom of the Brahmans_ [Hermann Hesse _Glass Bead Game_] http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpO5OnQO2s0i.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Don Armstrong [EMAIL PROTECTED] writes: Sure, but we're generally not talking about sale or transfer of ownership in the context of free software licenses, because the license limits what you can do with your copy. That is, I often can't take my copy, modify it, and resell the binary to someone else like I could do with any other tangible copyrighted work. Huh? Free software licenses cannot restrict things which are not already restricted by copyright. In the case you describe, if you really got rid of your copy, then what you did is ok (provided it was actually something you could do with any other tangible copyrighted work).
Re: Some licensing questions regarding celestia
On Mon, Sep 08, 2003 at 01:46:35PM -0700, Don Armstrong wrote: On Mon, 08 Sep 2003, Richard Braakman wrote: Um, you missed or other transfer of ownership. I didn't see it being applicable to software licences in general. It looks very general to me, covering all transfers of ownership like it does. The recipient gains ownership of a copy (and sometimes this is an actual sale, where money changes hands), and gets a license to make and distribute further copies under certain conditions. Sure, but we're generally not talking about sale or transfer of ownership in the context of free software licenses, because the license limits what you can do with your copy. That is, I often can't take my copy, modify it, and resell the binary to someone else like I could do with any other tangible copyrighted work. Huh? That's a restriction imposed by copyright law, not by the license. Unless you're talking about a modification-in-place, without making any copies in the process. That's a very rare event when talking about electronic media. Yes, you can draw funny pictures of RMS on the tapes you bought from the FSF, and then resell them. Richard Braakman
Re: Some licensing questions regarding celestia
On Mon, 08 Sep 2003, Thomas Bushnell, BSG wrote: Don Armstrong [EMAIL PROTECTED] writes: Sure, but we're generally not talking about sale or transfer of ownership in the context of free software licenses, because the license limits what you can do with your copy. That is, I often can't take my copy, modify it, and resell the binary to someone else like I could do with any other tangible copyrighted work. Free software licenses cannot restrict things which are not already restricted by copyright. In the case you describe, if you really got rid of your copy, then what you did is ok (provided it was actually something you could do with any other tangible copyrighted work). If I was sold the work, sure. But most software isn't sold, it's leased or licensed. If what I did was ok, then you could trivially circumvent most (if not all) copyleft licenses, simply by purchasing a copy (downloading it from the original offerer), modifying the copy, compiling the copy, and selling the copy [commensurate with the destruction of your copy.] Now, granted, this is a slow way to go about it, but you could pretty easily setup a few systems that did this automatically. I'd argue that in the terms of a lease, you couldn't do the above. Whether software is sold are leased is somewhat of an open question... and some days I wish it were sold, and other days I'm glad that it's leased. [Hrm. My bias is creeping in there a bit...] Anyway, I'm getting widely off topic here and into realms which I haven't taken enough law school to talk authoritatively on. Please feel free at any time to cite sources that will force me to reconsider my notions. Don Armstrong -- Personally, I think my choice in the mostest-superlative-computer wars has to be the HP-48 series of calculators. They'll run almost anything. And if they can't, while I'll just plug a Linux box into the serial port and load up the HP-48 VT-100 emulator. -- Jeff Dege, [EMAIL PROTECTED] http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgp9tY70TuMNj.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Tue, 09 Sep 2003, Richard Braakman wrote: That's a restriction imposed by copyright law, not by the license. Unless you're talking about a modification-in-place, without making any copies in the process. Yes, I'm talking about a modification-in-place. After re-reading I see I didn't make that very clear. Mea Culpa. That's a very rare event when talking about electronic media. Yes, you can draw funny pictures of RMS on the tapes you bought from the FSF, and then resell them. Sure, but the software license purports to restrict this. The only way it can is if it's a lease. If it's a transfer of ownership, then it can't. I'm not totally convinced one way or another is right, but case law and legislation (UCITA, etc.) seems to be going towards leases. Don Armstrong -- Ban cryptography! Yes. Let's also ban pencils, pens and paper, since criminals can use them to draw plans of the joint they are casing or even, god forbid, create one time pads to pass uncrackable codes to each other. Ban open spaces since criminals could use them to converse with each other out of earshot of the police. Let's ban flags since they could be used to pass secret messages in semaphore. In fact let's just ban all forms of verbal and non-verbal communication -- let's see those criminals make plans now! http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgp3MKK69R5UF.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, Sep 08, 2003 at 03:37:47PM -0700, Don Armstrong wrote: That's a very rare event when talking about electronic media. Yes, you can draw funny pictures of RMS on the tapes you bought from the FSF, and then resell them. Sure, but the software license purports to restrict this. The only way it can is if it's a lease. If it's a transfer of ownership, then it can't. I'm not totally convinced one way or another is right, but case law and legislation (UCITA, etc.) seems to be going towards leases. *NOT* in the case of licenses that are considered free. -- Steve Langasek postmodern programmer pgpckTCgWeRH6.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, 08 Sep 2003, Steve Langasek wrote: On Mon, Sep 08, 2003 at 03:37:47PM -0700, Don Armstrong wrote: I'm not totally convinced one way or another is right, but case law and legislation (UCITA, etc.) seems to be going towards leases. *NOT* in the case of licenses that are considered free. Could you explain to me why free licenses are going to be treated differently under the law than licenses that are not free? The only argument I've seen so far revolves around consideration, and an easy argument there is the warranty clause and/or ego enhancement by useage. [And even if it still means that they must be treated differently, I'm still at a loss as to how they should be treated differently under law.] Don Armstrong -- Debian's not really about the users or the software at all. It's a large flame-generating engine that the cabal uses to heat their coffee -- Andrew Suffield (#debian-devel Fri, 14 Feb 2003 14:34 -0500) http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgppAxzJNc3Xj.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
A week ago Mika asked two legal questions and a Debian-policy question. I'm not sure this extensive thread has managed to answer his questions yet (or recently whether it has even been addressing them.) Some looking around on the web revealed that Dan Ravicher, one of the pro-bono attorneys for the Free Software Foundation, has answered a question very similar to one of Mika's. You can read lots of helpful information regarding Free Software and legal issues here: http://interviews.slashdot.org/article.pl?sid=01/06/05/122240 In particular, the similar question and answer are: BEGIN PASTE Images and Sounds by K45 How does the GPL affect non-sourcecode files that are part of an application? Specifically, I'm concerned about the images and sounds that are included with a game I'm working on. Does the GPL contaminate these other files that are included? If so, how do source and binary distribution apply to images and sounds. Dan SHORT ANSWER The GPL may contaminate sound and image files if they are part of a whole work, and that work is based on a GPL licensed program. LONG ANSWER The relevant part of the GPL reads, 'If identifiable sections ... are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it. ... the intent is to exercise the right to control the distribution of derivative or collective works based on the Program. In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.' Therefore, under the GPL, if the non-source code files are distributed as part of a whole which is a work based on the [GPL'd] program, then the whole application, including those non-source code files, must be distributed under the GPL. However, if the non-source code files are not based on the [GPL'd] Program and are merely aggregated with the GPL'd program for distribution, then those non-source code files do not have to be distributed under the GPL. This means that the issue lies in how the non-source code files are incorporated into or with the GPL'd program. If no source code exists for parts of the work, section 3 of the GPL states that the preferred form of the work for making modifications to it, must be distributed in order to satisfy the source distribution requirement. Since I have very little technical knowledge, I'm not sure exactly what is the preferred form for making modifications to image and sound files... END PASTE So it seems that Mika could aggregate the other distinct files with Celestia without having a GPL issue, but then whatever copyright governed those additional files would continue to govern them and their notices would need to be preserved. Many of these copyright licenses would likely be non-free and so I don't think the entirety could end up in Debian main. Also, I'm not sure it's been said clearly that some data that he might be worried about is unlikely to be covered by any enforceable copyright. For example, I doubt one can copyright information about the relative locations of the planets or stars. The 3D models are another story though. Further, the JPL Image Policy doesn't look like a copyright license. It suggests that JPL may not even be the copyright holder of images that they let you download (nearly admitting to contributory infringement!) and so you would need for each image from JPL to track down its actual owner. Good luck. (Anyone for Copyright reform?!) Mika Fischer wrote: Hi! [Please CC me] I'm the new maintainer of celestia which is a space simulation program. As such it contains a lot of data, numerical data such as positions of stars as well as 3D models and textures. The copyright status of all this data is a real mess and we (the authors and me) are trying to clarify it. What I got out of the whole FDL debate is that data in Debian has to be DFSG-free (with which I agree). celestia is released under the terms of the GPL. Now the questions: 1) If one includes public-domain material in a GPL work, does one have to state what material is in the public domain? 2) Are there any GPL-compatibility issues when the data is licensed differently from the GPL? So if an author grants the rights to copy, modify and redistribute is it enough to basicaly say: This software is GPLed but file xyz is licensed according to the following statement: ...? Does a list like
Re: Some licensing questions regarding celestia
[NB: I am subscribed to this list. It is not necessary to Cc: me.] On Mon, 08 Sep 2003, Thomas Bushnell, BSG wrote: If what I did was ok, then you could trivially circumvent most (if not all) copyleft licenses, simply by purchasing a copy (downloading it from the original offerer), modifying the copy, compiling the copy, and selling the copy [commensurate with the destruction of your copy.] I believe that the fact that you point out this is a circumvention answers the question. Courts do not think that's fine. This is no different from me purchasing copyrighted micky mouse characters and chopping their heads off and replacing them with barbie heads and selling the resultng anaglamations as art works. I suppose you could construct an argument regarding it, and I suppose if I mass modified the above mattel and disney would sue me, but I'd hope they would have a hard time prevailing... Don Armstrong -- It seems intuitively obvious to me, which means that it might be wrong -- Chris Torek http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgp37KDgLbe2x.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, Sep 08, 2003 at 04:32:19PM -0700, Don Armstrong wrote: On Mon, 08 Sep 2003, Steve Langasek wrote: On Mon, Sep 08, 2003 at 03:37:47PM -0700, Don Armstrong wrote: I'm not totally convinced one way or another is right, but case law and legislation (UCITA, etc.) seems to be going towards leases. *NOT* in the case of licenses that are considered free. Could you explain to me why free licenses are going to be treated differently under the law than licenses that are not free? There is nothing in the law that I've seen which prevents someone from authoring and distributing a piece of software on principles other than those governing leases; and no license that passes the DFSG could ever be predicated on a lease, given that modification and redistribution are essential freedoms. Thus, they'd be treated differently under the law by virtue of the fact that they *are* different. Also, the UCITA has been happily rejected by a fair number of the states where it was originally proposed and is being disputed elsewhere, so it's not much of a precedent. -- Steve Langasek postmodern programmer pgpmNzllXTqIS.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, 08 Sep 2003, Steve Langasek wrote: There is nothing in the law that I've seen which prevents someone from authoring and distributing a piece of software on principles other than those governing leases; and no license that passes the DFSG could ever be predicated on a lease, given that modification and redistribution are essential freedoms. I don't really see an issue with a lease that grants the freedom to redistribute and to modify. At least, I am awhere of no clause in Contract Law prohibiting such a lease. Thus, they'd be treated differently under the law by virtue of the fact that they *are* different. What I'm still missing is a tested mechanism besides a lease where we can grant rights to use, modify, and redistribute subject to conditions. I can't think of another way to frame such a license besides the background of a contract or a lease. Perhaps I'm just not seeing or understanding clearly, but so far no one who claims that free software licenses are neither a lease nor a contract (at least in the US) has explained what type of legal agreement they would be. All the cases that I'm aware of apply the tests of a contract to licenses. Also, the UCITA has been happily rejected by a fair number of the states where it was originally proposed and is being disputed elsewhere, so it's not much of a precedent. True. I was merely using it to point out the direction that statute seems to be headed. There are clauses of UCITA that I really dislike, and I'm glad it hasn't been made law everywhere. But it does embody a substantial amount of current legal thought. 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://www.anylevel.com http://rzlab.ucr.edu pgpYuOm9WYPO1.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): The issue is not whether they are lawfull or not, but merely that those are the only forms of distribution available exclusively to the copyright holder. You are question-begging, again. Sorry, I still do not accept the premise. No, it does not follow the forms of contract law. See MA Mortenson v. Timberline;[1] Pro CD v. Zeidenburg; In ProCD, which involved a retail purchase of software, the Seventh Circuit held software shrinkwrap license agreements are a valid form of contracting under Wisconsin's version of U.C.C. section 2-204, and such agreements are enforceable unless objectionable under general contract law such as the law of unconscionability. ProCD, 86 F.3d at 1449-52. GPLv2, the BSD licence, et alii are not shrinkwrap licences. Moreover, the enforceability of shrinkwrap licences has been heavily contested and is in ongoing doubt, as they have tended to be ruled to be contracts of adhesion (i.e., lacking in meaningful privity of contract). E.g., Step-Saver Data Systems, Inc. v. Wyse Technology (939 F.2d 91 (3d Cir. 1991)) ruled that a particular shrinkwrap licence was subject to the conventional contract-formation guidlines of UCC section 2-207 and would have failed to form a contract for lack of privity if an existing contractual relationship hadn't existed before opening the package. Vault Corp. v. Quaid Software Ltd. (5th Circuit, on appeal -- 847 F.2d 255 (5th Cir. 1988)) ruled that a different shrinkrwap licence was indeed a contract of adhesion and unenforceable (and, indeed, threw out an entire Louisiana statute that claimed the contrary). And, by the way, I just refreshed my memory on your cite of ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). The court held that no contract was formed by the parties until the buyer accepted the seller's terms by either returning the software after reading the license agreement or electing to keep the goods. Essentially, there has to be meaningful opportunity for the buyer to approve or return, or there could not be any meeting of the minds. The same court later reinforced this guideline in Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), that a 30-day approve-or-return period was sufficient to overcome meeting-of-the-minds objections, and established binding acceptance. M.A. Mortenson Co. v. Timberline Software Corp., et al. (Supreme Court of Washington 140 Wn.2d 568; 998 P.2d 305 2000) does _not_ advance your assertion. Buyer asserted that he was simply unaware of the purchase terms and claimed he should not be bound, but the facts showed his awareness (having twice asked the buyer to sign an agreement comparable to their disputed license agreement). In any event, as I said, heavily contested: The 7th Circuit with its Wall Street proclivities says yes, adherents of Vault v. Quaid as the leading case say no. UCC2B would of course change that, and is one of the design goals of that code. There is (typically) no acceptance conveyed to the licensor, for one thing. Then as has been shown in various shrinkwrap cases, the entire license is null and void. [See Spect et al v. Netscape] The alleged _contract_ is null and void. You are still begging the question of licensing irrespective of contract, and I still do not accept your fundamental premise. Although _that_ statement may also be true, it is irrelevant to the preceding discussion: There need not _be_ formation of a contract for copyright law to apply, Copyright law applies regardless. Whether or not a contract forms is a separate question from whether or not an enforceable licence can be constructed (e.g., GPLv2 and BSD licence) entirely subject to copyright law. And you have been wasting your time and mine. Enough, sir. -- Cheers,Remember: The day after tomorrow is the third day Rick Moen of the rest of your life. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): Perhaps I'm just not seeing or understanding clearly, but so far no one who claims that free software licenses are neither a lease nor a contract (at least in the US) has explained what type of legal agreement they would be. Just for the sake of anyone who may not have been following closely, I'll mention again that this notion that agreement must be involved is yours alone, and of course is part of why you see everything in terms of contract law. -- Cheers, Chaos, panic, disorder - my work here is done. Rick Moen [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Arnoud Galactus Engelfriet ([EMAIL PROTECTED]): True. However, since we were discussing whether a license necessarily is a contract, it seems strange to bring up a copyright treaty that has nothing to do with contracts. Actually, it's that other guy who's fixated on contracts. (Every time a copyright licence discussion starts, there's always at least one such person.) The point is that copyright regimes tend to be generally similar across most jurisdictions because of efforts to standardise them to benefit international business. E.g., the Berne Convention. Thus, although I doubt I'll ever become more than vaguely familar with the fine details of most of the world's legal systems, it seems very likely that most copyright regimes that participate in the international framework will have mostly similar provisions in that area. That was my point of mentioning in passing the Berne Convention. Anyway, I think the only thing we can conclude is that it is in some countries possible for the GPL to be interpreted as a contract, and in some countries it is not. I will certainly acknowledge the claims advanced here about German law. I'm curious about specifics of that and other countries that might be mentioned, and look forward to seeing them. (Unfortunately, my command of the German language probably isn't good enough to follow references.) -- Cheers, We write preciselyWe say exactly Rick Moen Since such is our habit inHow to do a thing or how [EMAIL PROTECTED] Talking to machines; Every detail works. Excerpt from Prof. Touretzky's decss-haiku.txt @ http://www.cs.cmu.edu/~dst/
Re: Some licensing questions regarding celestia
Once again: I am subscribed to -legal. Please follow debian list policy and refrain from Cc:'ing me. On Mon, 08 Sep 2003, Thomas Bushnell, BSG wrote: They are *grants of permission*, which is an existing well-established category. The closest traditional analog in the old common law was permission to enter another's land. Another way to put it is that they are enforceable promises not to sue for copyright enfringement. In all the instances where I'm aware of similar grants of permision and verbal promises being tested, they have been tested as if they were verbal contracts. Don Armstrong -- Tell me something interesting about yourself. Lie if you have to. -- hugh macleod http://www.gapingvoid.com/archives/batch20.php http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpVJtxbLAH8q.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Don Armstrong [EMAIL PROTECTED] writes: On Mon, 08 Sep 2003, Steve Langasek wrote: On Mon, Sep 08, 2003 at 03:37:47PM -0700, Don Armstrong wrote: I'm not totally convinced one way or another is right, but case law and legislation (UCITA, etc.) seems to be going towards leases. *NOT* in the case of licenses that are considered free. Could you explain to me why free licenses are going to be treated differently under the law than licenses that are not free? You are missing the point. In the other cases, a person has paid money. It might make sense to say that something is leased when there is money paid for it. It doesn't make any sense otherwise. The only argument I've seen so far revolves around consideration, and an easy argument there is the warranty clause and/or ego enhancement by useage. [And even if it still means that they must be treated differently, I'm still at a loss as to how they should be treated differently under law.] The law does not recognize ego enhancement as consideration.
Re: Some licensing questions regarding celestia
Don Armstrong [EMAIL PROTECTED] writes: Perhaps I'm just not seeing or understanding clearly, but so far no one who claims that free software licenses are neither a lease nor a contract (at least in the US) has explained what type of legal agreement they would be. They are *grants of permission*, which is an existing well-established category. The closest traditional analog in the old common law was permission to enter another's land. Another way to put it is that they are enforceable promises not to sue for copyright enfringement. Thomas
Re: Some licensing questions regarding celestia
On Mon, 08 Sep 2003, Rick Moen wrote: Moreover, the enforceability of shrinkwrap licences has been heavily contested and is in ongoing doubt, as they have tended to be ruled to be contracts of adhesion (i.e., lacking in meaningful privity of contract). Certainly. But the mere application of the standards of contracts to them is indicative of case law considering them as contracts, which is why I brought those citations up. The alleged _contract_ is null and void. You are still begging the question of licensing irrespective of contract, So when the contract is thrown out, you wish to say that the license still applies because there's another way for it to apply besides being a contract? Why do the attorneys in Specht v. Netscape fail to bring to fore this other form of licensing? And you have been wasting your time and mine. Your time is yours to spend or waste. My time is mine to do with as I see fit. Please do whatever you feel most confortable with. Don Armstrong -- Three little words. (In decending order of importance.) I love you -- hugh macleod http://www.gapingvoid.com/graphics/batch35.php http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgp9UcO5ev2tr.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Quoting Andreas Barth ([EMAIL PROTECTED]): You are mistaken. Your statement is not true for parts of this world (but it may be true for other parts of the world). For example in Germany you're always making a contract, even with GPL. I have no doubt you are correct -- but I had in mind the overwhelming majority of jurisdictions that have copyright regimes in line with the Berne Convention and that lack such additions. -- Cheers,Cthulhu loves me, this I know; because the High Priests tell me so! Rick Moen He won't eat me, no, not yet. He's my Elder God, dank and wet! [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): I'm at a loss to find where copyright law specifies the terms and forms of an agreement or license. (Note: Agreement is your addition to this discussion, part of your attempt to change the subject to contract law. I spoke nowhere of agreements.) Assuming we're talking about USA jurisdictions: 17 USC 106 et seq. enumerates rights reserved to copyright owners by default. Others are conveyed automatically to any lawful recipient of a covered work -- the default licence implicit in copyright law. (The fact that the word licence doesn't appear in the Copyright Act is entirely irrelevant to the subject.) GPLv2 is an example of a grant of some of those reserved rights subject to specified conditions, above and beyond the default rights conveyed. The BSD licence is another. See other messages in this thread in regards to consideration. I've been seeing them for many years, ad nauseum. Whether valid consideration exists sounds open to question. [I'm not all together sure why privity would play a role Why am I not surprised? If you are asserting that licences must apply through contract mechanisms (which is what I understand to be your -- tediously familiar from past iterations of this discussion -- argument), then privity of contract between the licensor and third-hand recipients becomes a problem. You might be able to build a case that those downloading the tarball directly from the author's site undergo the required offer acceptance, but further uploads and downloads entail no such relationship between recipient and licensor. Licenses obey the forms of either a contract or a lease or they are not legally valid. That is false. Please read, for example, GNU GPLv2. It has been argued that the GPL follows the forms of a legal agreement, or contract between two parties. Do I correctly understand that you are incapable of understanding the plain language of GPLv2 clause 0? The Program, below, refers to any such program or work, and a work based on the Program means either the Program or any derivative work under copyright law: If it doesn't, from which common law cases or statute does it draw its legal authority? In the USA, 17 USC 101 et seq. (Copyright Act). -- Cheers, Ever wonder why the _same people_ Rick Moen make up _all_ the conspiracy theories? [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
On Sat, 06 Sep 2003, Rick Moen wrote: Assuming we're talking about USA jurisdictions: 17 USC 106 et seq. enumerates rights reserved to copyright owners by default. Others are conveyed automatically to any lawful recipient of a covered work -- the default licence implicit in copyright law. 17 USC 106 (3) lists four ways for a copy to be distributed. 106. Exclusive rights in copyrighted works: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; Rental and lending are pretty much out of scope for software, licenses preclude sale, so what we're pretty much only discussing lease of the software, subject to the terms of the license. I've been seeing them for many years, ad nauseum. Whether valid consideration exists sounds open to question. It's definetly an open question, and it will be until a OS license is tested in court. I can almost guarantee that will be one of the legal tests of the license made. Myself and everyone else can only give you the counter arguments that will be made in such a case. I personally think that it won't be a very big hurdle to overcome, but the decisions of courts are not the easiest things to predict. You might be able to build a case that those downloading the tarball directly from the author's site undergo the required offer acceptance, but further uploads and downloads entail no such relationship between recipient and licensor. In such a case, the licensor has no more rights than granted to him by copyright law. If there is no privity, there can be no contract, therefore the rights granted are granted by statute. [I'd actually argue that the no rights are granted by title 17, because without privity, the software has not been lent, rented, leased or sold, and any distribution infringes on the rights of the copyright holder.] Perhaps I'm missing some key point, but I don't see how we can use such software save under a valid license or leasing agreement persuant to section 106 (3) and following the legal forms of a lease. Don Armstrong -- She was alot like starbucks. IE, generic and expensive. -- hugh macleod http://www.gapingvoid.com/batch3.htm http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpN2GSg1dyc6.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
* Rick Moen ([EMAIL PROTECTED]) [030907 07:05]: Quoting Andreas Barth ([EMAIL PROTECTED]): You are mistaken. Your statement is not true for parts of this world (but it may be true for other parts of the world). For example in Germany you're always making a contract, even with GPL. I have no doubt you are correct -- but I had in mind the overwhelming majority of jurisdictions that have copyright regimes in line with the Berne Convention and that lack such additions. Making a contract is no violation of the Berne Convention (and contract doesn't mean you have always to sign anything). There are different ways to implement the rules of the Berne Convention, and there are a lot of countries who did the way Germany did. And a lot of countries with another way. We live in a true multilateral world, at least within Debian. Cheers, Andi -- http://home.arcor.de/andreas-barth/ PGP 1024/89FB5CE5 DC F1 85 6D A6 45 9C 0F 3B BE F1 D0 C5 D1 D9 0C
Re: Some licensing questions regarding celestia
* Rick Moen ([EMAIL PROTECTED]) [030907 07:35]: If you are asserting that licences must apply through contract mechanisms (which is what I understand to be your -- tediously familiar from past iterations of this discussion -- argument), then privity of contract between the licensor and third-hand recipients becomes a problem. You might be able to build a case that those downloading the tarball directly from the author's site undergo the required offer acceptance, but further uploads and downloads entail no such relationship between recipient and licensor. Also further downloads do. Let's assume GPLv2 for a moment, and a set of three persons: A, the author, B, who downloaded it from A, and C, who downloaded it from B. B downloading from A is not a problem. The problem is: How can C get a valid contract from A, but he is downloading only from B? Well, A has said GPLv2, and within the first condition he has given implicit permission to make a GPLv2-contract on his behalf to anyone who has a piece of GPLv2-source of him. GPL #6 says this explicitly: | 6. Each time you redistribute the Program (or any work based on the | Program), the recipient automatically receives a license from the | original licensor to copy, distribute or modify the Program subject to | these terms and conditions. [...] So, C is making a contract with A through B (even if A is not going to notice it). Furthermore, A can even not disallow B to make such contracts; a try to do this would be a serious breach of his contract with B. The same is valid for other licenses that allow re-distribution, even if they do not say it as plainly as GPL. Cheers, Andi -- http://home.arcor.de/andreas-barth/ PGP 1024/89FB5CE5 DC F1 85 6D A6 45 9C 0F 3B BE F1 D0 C5 D1 D9 0C
Re: Some licensing questions regarding celestia
On Fri, 05 Sep 2003, Rick Moen wrote: In fact, most open source / free software licences (for example) have no dependency whatsoever on contract law, and apply in accordance with the mechanisms of copyright law regardless of whether a contract forms between any parties involved. I'm at a loss to find where copyright law specifies the terms and forms of an agreement or license. No where is any form of license mentioned in Title 17, save section 203, which only deals with the termination of licenses. Which is a good thing, since otherwise there would be serious problems in the areas of privity and (arguably) consideration. See other messages in this thread in regards to consideration. [I'm not all together sure why privity would play a role, as only the copyright holder should be able to sue a third party under the terms of the contract... perhaps I'm missing something here.] Licenses obey the forms of either a contract or a lease or they are not legally valid. That is false. Please read, for example, GNU GPLv2. It has been argued that the GPL follows the forms of a legal agreement, or contract between two parties. If it doesn't, from which common law cases or statute does it draw its legal authority? Don Armstrong -- N: Why should I believe that? B: Because it's a fact. N: Fact? B: F, A, C, T... fact N: So you're saying that I should believe it because it's true. That's your argument? B: It IS true. -- Ploy http://www.mediacampaign.org/multimedia/Ploy.MPG http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpDc1oc1fbqS.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
* Rick Moen ([EMAIL PROTECTED]) [030906 10:50]: Quoting Don Armstrong ([EMAIL PROTECTED]): The forms of the license are formed and founded in Contract Law. You are mistaken. There is nothing about the described situation that requires or suggests a contract. You are mistaken. Your statement is not true for parts of this world (but it may be true for other parts of the world). For example in Germany you're always making a contract, even with GPL. Cheers, Andi -- http://home.arcor.de/andreas-barth/ PGP 1024/89FB5CE5 DC F1 85 6D A6 45 9C 0F 3B BE F1 D0 C5 D1 D9 0C
Re: Some licensing questions regarding celestia
Quoting Anthony DeRobertis ([EMAIL PROTECTED]): Why not do something like: statement (maybe) releasing work to public domain If the above is not legally possible, then (name[s]) grant(s) you and any other party receiving this code a perpetual, irrevocable, royalty-free license to [everything copyright law prohibits]. (name[s]) additionally grant(s) you a royalty-free... license to do anything else that you would be allowed to do with a work in the public domain. It is the intent of (name[s]) that this work be treated as if the public domain statement above is valid. What would be wrong with that? Best case, it is public domain; worst case, it is public domain in all but name. I like it; it would probably work (my guess). The only thing wrong with it is there's no exclusion of warranties and damages, a la BSD or MIT/X I still can't for the life of me understand why anyone would _not_ want those on a work one is handing out for free, but to each his own. -- Cheers, I used to be on the border of insanity. However, due Rick Moen to pressing political concerns, I recently had to invade. [EMAIL PROTECTED]-- Kurt Montandon, in r.a.sf.w.r-j
Re: Some licensing questions regarding celestia
Brian C [EMAIL PROTECTED]: If so, I can say with certainty that the FSF claims that the GPL is not a contract. I attended their recent seminar on the GPL at Stanford Law School (August '03 See http://patron.fsf.org/course-offering.html ) and heard presentations from Exec. Director Bradley Kuhn and one of their attorneys, Daniel Ravicher, who both were adamant that the GPL is not a contract. That's good to hear. I would prefer licences not to be contracts. However, it might be that in Australia and Germany licences are treated as contracts. One of the key reasons they say it's not a contract is because they don't want you to be forced to accept the terms of the GPL to run GPL'd software. This I don't understand. The issues of whether you need permission to run software and whether a licence is a contract seem fairly independent to me. Perhaps it doesn't matter too much whether a licence is a contract. These two cases are fairly equivalent: Case 1: The GPL is just a licence. There's no need for consideration, and someone who releases software under the GPL cannot withdraw their permission because the existing licence remains valid. Case 2: The GPL is in effect a contract in which the copyright owner promises not to sue for copyright infringement. In return, people use the software and don't sue for damage caused, so there is consideration. If a copyright owner tried to sue someone for copyright infringement the people affected could countersue for the full value of the software, which for something like the Linux kernel might be thousands of millions. Alternatively, they could just ask: How much do you charge for licensing the software to me under the GPL? I sue you for that much plus costs. Or you could just continue to license it to me, as you promised. I prefer case 1 where possible. Edmund
Re: Some licensing questions regarding celestia
On Tue, 2 Sep 2003, Don Armstrong wrote: On Tue, 02 Sep 2003, Rick Moen wrote: Quoting Don Armstrong ([EMAIL PROTECTED]): It follows directly from contract law. The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. Licenses are primarily founded upon Contract Law, not Copyright Law. Copyright Law is what grants you the rights to a work which you then exchange or give away using a License or Contract. Contract Law is what allows you to establish a legally binding document to exchange or give away those rights or interests. Yes. But Copyright Law may impose additional restrictions on the form and subject of contract. For example in Germany, Russia and, probably, many other countries with German-derived copyright law you should enumerate every specific right, transferred by the contract. If right is not explicitly enumerated, it is not transferred. The intent of public domain license is clear. But the form of contract may be considered invalid, under some circumstances. (2) Those that are dedicated to the public domain by license or contract. In order for (2) to be legally indeterminate, there needs to be applicable statutory or case law limiting the rights which a copyright holder can give away. If there is no case law or statute limiting those rights, the rights can be given away. Yes. Under many jurisdictions copyright holder can't simultaneously give away all his rights.
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): Licenses are primarily founded upon Contract Law, not Copyright Law. You are mistaken. You may wish to read GPLv2. Please also consider the matter of privity of contract. In order for (2) to be legally indeterminate, there needs to be applicable statutory or case law limiting the rights which a copyright holder can give away. This assertion is non-sequitur. Your reasoning has gone transrational. Reasons why it is indeterminate have been already stated. -- Cheers,Remember: The day after tomorrow is the third day Rick Moen of the rest of your life. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): I should have been more clear that I was refering to licenses in the general sense. Oh, so now you're attempting to change the subject! I see. You had said: My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. You claimed that this followed directly from contract law, to which I replied: The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. You are absolutely correct, though, in pointing out that Copyright Law plays a part in the rights that are granted to the public without a License The other gentleman did not say that. Moreover, it is quite clear that contract law need not be involved in the rights that are granted to the public without a license. For example, if I write a codebase and put it up for public ftp without an explicit statement of licence, the rights conveyed to downloaders are granted solely through action of copyright law (forming a default licence that omits the right to redistribute and create derivative works, among others). -- Is it not the beauty of an asynchronous form of discussion that one can go and make cups of tea, floss the cat, fluff the geraniums, open the kitchen window and scream out it with operatic force, volume, and decorum, and then return to the vexed glowing letters calmer of mind and soul? -- The Cube, forum3000.org
Re: Some licensing questions regarding celestia
On Tuesday, Sep 2, 2003, at 11:45 US/Eastern, Rick Moen wrote: And if that person objects that, no, he really, really wants to destroy his copyright and make the code be actually (or at least effectively but for certain so) public domain, then I would advise him that it's an imperfect world, and nobody knows how to do that without the risk of creating very troublesome legal questions for the remaining duration of the copyright term. Why not do something like: statement (maybe) releasing work to public domain If the above is not legally possible, then (name[s]) grant(s) you and any other party receiving this code a perpetual, irrevocable, royalty-free license to [everything copyright law prohibits]. (name[s]) additionally grant(s) you a royalty-free... license to do anything else that you would be allowed to do with a work in the public domain. It is the intent of (name[s]) that this work be treated as if the public domain statement above is valid. What would be wrong with that? Best case, it is public domain; worst case, it is public domain in all but name.
Re: Some licensing questions regarding celestia
On Tuesday, Sep 2, 2003, at 20:26 US/Eastern, Don Armstrong wrote: Licenses are primarily founded upon Contract Law, not Copyright Law. I sure hope not, because a contract needs consideration (i.e., something of value) from both sides to be valid. Licenses can certainly be a part of a contract (e.g., I give you $X, then you give me a license to do Y), but they don't have to be.
Re: Some licensing questions regarding celestia
On Wed, 03 Sep 2003, Rick Moen wrote: Quoting Don Armstrong ([EMAIL PROTECTED]): You claimed that this followed directly from contract law, to which I replied: The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. The forms of the license are formed and founded in Contract Law. Contract Law is what enables you to make such a legaly binding agreement. Licenses obey the forms of either a contract or a lease or they are not legally valid. [At least, I have yet to year a good argument for why they would be valid.] The specific rights that can be restricted may be curtailed by Copyright Law, Constitutional Law, and/or a myriad of other sections of US Law. Hopefully that's clear now. You are absolutely correct, though, in pointing out that Copyright Law ^ plays a part in the rights that are granted to the public without a License The other gentleman did not say that. Moreover, it is quite clear that contract law need not be involved in the rights that are granted to the public without a license. Correct. Don Armstrong -- She was alot like starbucks. IE, generic and expensive. -- hugh macleod http://www.gapingvoid.com/batch3.htm http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpV76GfZu093.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
* Anthony DeRobertis ([EMAIL PROTECTED]) [030903 20:50]: On Tuesday, Sep 2, 2003, at 20:26 US/Eastern, Don Armstrong wrote: Licenses are primarily founded upon Contract Law, not Copyright Law. I sure hope not, because a contract needs consideration (i.e., something of value) from both sides to be valid. Licenses can certainly be a part of a contract (e.g., I give you $X, then you give me a license to do Y), but they don't have to be. May depend on your legal system. In german it's definitly a contract. Each donation is a contract here (to be more exact, at least two contracts), and almost anything else also. Cheers, Andi -- http://home.arcor.de/andreas-barth/ PGP 1024/89FB5CE5 DC F1 85 6D A6 45 9C 0F 3B BE F1 D0 C5 D1 D9 0C
Re: Some licensing questions regarding celestia
Don Armstrong wrote: The forms of the license are formed and founded in Contract Law. Contract Law is what enables you to make such a legaly binding agreement. Licenses obey the forms of either a contract or a lease or they are not legally valid. [At least, I have yet to year a good argument for why they would be valid.] The specific rights that can be restricted may be curtailed by Copyright Law, Constitutional Law, and/or a myriad of other sections of US Law. Hopefully that's clear now. When you say the forms of the license are formed and founded in Contract Law, are you referring to the GPL? If so, I can say with certainty that the FSF claims that the GPL is not a contract. I attended their recent seminar on the GPL at Stanford Law School (August '03 See http://patron.fsf.org/course-offering.html ) and heard presentations from Exec. Director Bradley Kuhn and one of their attorneys, Daniel Ravicher, who both were adamant that the GPL is not a contract. Rather, they want the GPL to free-ride off of Copyright Law and they view the GPL as a Copyright License alone, a license that just happens to be more generous in its terms than most Copyright licenses. One of the key reasons they say it's not a contract is because they don't want you to be forced to accept the terms of the GPL to run GPL'd software. Indeed, they say you can RUN GPL'd software in perpetuity without ever being bound by the GPL. You're only forced to abide by the terms of the GPL once you start doing something that Copyright Law would govern, that is, once you copy, distribute, or modify the program. That's why Section 0 says: The act of running the Program is not restricted... Now perhaps this is them searching for a distinction where none is to be found, as many of the attorneys present seemed to believe courts would find a contract to exist here, but I'm just reporting their position to you. I also apologize for contributing to something of a tangent, but thought I'd offer it as a point of information. -- Brian W. Carver -- http://rurnt.com/brian ,''`. Try a free operating system at http://www.debian.org : :' : Support EFF! http://www.eff.org `. `' They're defending YOUR rights online! `-
Re: Some licensing questions regarding celestia
Quoting Branden Robinson ([EMAIL PROTECTED]): * To my knowledge, in the U.S, a statement from all the copyright holders of a work is sufficient to place it in the public domain, if they want to do so before it would otherwise pass into the public domain through expiration of copyright Branden -- Would that it were so! The matter has been the topic of extensive discussion on the OSI license-discuss mailing list, and after a great deal of discussion the issue remains unsettled, but nobody can cite any clear indication of what the legal effect of such as declaration is: There has been no relevant caselaw. o It might be ruled to constitute an irrevocable licences for gratis usage by anyone, for the remainder of the licence term. o It might be ruled to actually _place_ the work in the public domain, but this seems unlikely, as there is no statutory provision for doing so, and it seems unlikely the owner could excuse himself from the duties of ownership through an act of will. o It might have no effect at all. o Or it might have some different effect entirely -- possibly various effects in diverse jurisdictions. In the USA, creative works (including software) published or generated directly by the Federal government are by law not covered by copyright, and thus are public domain ab initio. However, if the work was created by a non-government contractor, it became copyrighted upon creation, and nothing prevents the Feds from _owning_ such copyrights (e.g., as part of the deal with the contractor). Also, prior to 1978-01-01, it was possible to lose copyright protection in the USA through pilot error, e.g., by publishing the work without a valid copyright notice. (For example, it's probable that ATT UNIX 32V became public domain in that fashion, as indicated by the judge's preliminary ruling in the ATT v. UC Regents lawsuit. See: http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt) Beginning 1978, however, to bring US law in compliance with treaty, copyright has come into existence automatically whenever you put a (covered) creative work in fixed form -- and owners got a five-year grace period to fix any broken copyright notices. It's possible that some software became public domain through that mechanism, but not much -- and you'd potentially have to prove it, in the event of dispute. Other than that, it's a near-certainty that _no_ software of conceivable modern interest has yet reached the public domain: Not enough years have passed. Thus, if/when you see some package on the Net that's described as public domain, beware: That usually just means that the person writing that descriptions is dangerously ignorant of copyright law, and you incorporate such code into larger works at your peril. More at: http://linuxmafia.com/~rick/linux-info/public-domain -- BLINKResize your browser so the following line touches both margins!/BLINK HR WIDTH=75% Best Regards, Rick Moen, [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
On Mon, 01 Sep 2003, Rick Moen wrote: but nobody can cite any clear indication of what the legal effect of such as declaration is: There has been no relevant caselaw. I'm not surprised that there is no relevant caselaw, however, it's common to assume that placing (or dedicating) the work in (or to) the public domain is enough for the work to be in the public domain. You should be able to find caselaw involving a case where a work was improperly placed in the public domain (ie, the person dedicating it to the public isn't the copyright holder,) but as the US system is a law in action, you'll need to find a case where someone placed the work into the public domain, and then withdrew that placement and proceeded to sue people under it. That's a tall order. o It might be ruled to constitute an irrevocable licences for gratis usage by anyone, for the remainder of the licence term. This is the most common interpretation.[1] o It might be ruled to actually _place_ the work in the public domain, but this seems unlikely, as there is no statutory provision for doing so, and it seems unlikely the owner could excuse himself from the duties of ownership through an act of will. What duties of ownership? [Well, at least post 1968.] o Or it might have some different effect entirely -- possibly various effects in diverse jurisdictions. See some of the previous threads involving authorship rights and the wierd french and EU systems (Droit d'auteur). [Well, I guess the US system might be wierd to the french and/or EU denziens. ;-)] Thus, if/when you see some package on the Net that's described as public domain, beware: That usually just means that the person writing that descriptions is dangerously ignorant of copyright law, and you incorporate such code into larger works at your peril. You always incorporate code into larger works at your peril. It's always possible that the person claiming the copyright doesn't actually own the copyright of the code. I've heard of it happening in multiple instances. [See the current SCO debacle: no one even seems to know what code they own!] Regardless, the standard sane aproach, is to assume that a This work is placed into the public domain statement is equivalent to a relieving yourself of the protection availed to you by copyright law, or equivalent to a widely permisive irrevocable license.[1] Don Armstrong 1:http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html -- There's no problem so large it can't be solved by killing the user off, deleting their files, closing their account and reporting their REAL earnings to the IRS. -- The B.O.F.H.. http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpIPu6wxpi28.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): I'm not surprised that there is no relevant caselaw, however, it's common to assume that placing (or dedicating) the work in (or to) the public domain is enough for the work to be in the public domain. You can assume it. Your assumption is most likely incorrect. You should be able to find caselaw involving a case where a work was improperly placed in the public domain (ie, the person dedicating it to the public isn't the copyright holder,) but as the US system is a law in action, you'll need to find a case where someone placed the work into the public domain, and then withdrew that placement and proceeded to sue people under it. That's a tall order. That is _not_ necessary in order for the notion to be doubtful. It pretty much suffices that no statutory mechanism whatsoever exists to enact that intention, and for the outcome to be both indeterminate and mostly likely jurisdiction-dependent. What duties of ownership? [Well, at least post 1968.] Sundry warranty issues. You always incorporate code into larger works at your peril. Not exactly: There is risk, and there is peril. When you use (e.g.) a third-party BSD-licensed work, you are relying on the creator having sufficient title that his permission grant can be relied upon, but that is usually a well-founded assumption. With code you come across that is described as public domain, statistically, you will find upon deeper examination that the person making that declaration simply isn't taking copyright issues seriously. I conducted my own study, for some weeks in 2000, of the packages in SourceForge.net in the public domain licence category. This was because I was curious about whether the laxity, ownership problems, and outright failure to mention significant copyright claims was widespread in that entire category, after noticing it among PalmOS packages so designated that I came across while assembling my collection of all known open-source PalmOS software (http://linuxmafia.com/palmos/). To my dismay, I found that _most_ of that SourceForge.net category (out of some hundreds of packages) were multi-author works with obvious copyright encumbrances that had no matching permission statements from some of those authors. I brought this problem to the SourceForge.net management staff at VA Linux Systems, Inc. They acknowledged the problem (I presented examples), but took no action, feeling that the amount of software in question wasn't large enough to merit their time and trouble. My point is that, in my experience, a claim that a package is public domain has a high statistical correlation with title problems, which people making derivative works must beware of. Regardless, the standard sane aproach, is to assume that a This work is placed into the public domain statement is equivalent to a relieving yourself of the protection availed to you by copyright law, or equivalent to a widely permisive irrevocable license.[1] 1:http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html I'm glad the uncredited author has an opinion. Everyone should have a few -- and festooning Web pages with them as he has done is a perfectly fine pastime that no doubt reduces the rate of delinquency on our streets. But _relying_ on that would be about as perfect an example of idiocy as I've seen recently -- though I suppose there's always room for improvement in that area. -- Cheers, The shortest distance between two puns is a straightline. Rick Moen [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
On Tue, 02 Sep 2003, Rick Moen wrote: That is _not_ necessary in order for the notion to be doubtful. It pretty much suffices that no statutory mechanism whatsoever exists to enact that intention, and for the outcome to be both indeterminate and mostly likely jurisdiction-dependent. The absense of a statutory mechanism isn't really at issue here. There are hosts of contractual forms for which there is no applicable statute.[1] The US legal system is not statute bound, as it is a common law system. What duties of ownership? [Well, at least post 1968.] Sundry warranty issues. Warranty isn't a duty of ownership. Warranty is a duty of a provider, distributor or retailer. [IE, if you never distribute your work, you still own its copyright, but there is no warranty involved there.] When you use (e.g.) a third-party BSD-licensed work, you are relying on the creator having sufficient title that his permission grant can be relied upon, but that is usually a well-founded assumption. With code you come across that is described as public domain, statistically, you will find upon deeper examination that the person making that declaration simply isn't taking copyright issues seriously. In both cases, you have the a person who is presumably the copyright holder making the statement. If they're not the copyright holder, you have a problem. If they are, you're ok. If you move to incorporate any code under any license, be it public domain or not, it is always your responsibility to perform due diligence and research the validity of said copyright claims. If you don't, you're likely to get sued and lose. My point is that, in my experience, a claim that a package is public domain has a high statistical correlation with title problems, which people making derivative works must beware of. That's a problem with people making false statements, rather than a problem with the concept of placing a work into the public domain itself. What seems to be occuring here is a conflating of facts and law. Whether or not someone owns the copyright on a work is primarily a question of fact, not of law. I have nothing to say one way or another about the facts involving public domain works and works that purport to be public domain but are not. I'm merely discussing the law as it applies to public domain and works that are dedicated to the public domain. Don Armstrong 1: For a rather popular one, see the Magna Carta -- A citizen of America will cross the ocean to fight for democracy, but won't cross the street to vote in a national election. -- Bill Vaughan http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpgtlvEJx80h.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): The absense of a statutory mechanism isn't really at issue here. There are hosts of contractual forms for which there is no applicable statute.[1] The US legal system is not statute bound, as it is a common law system. Allow me to reiterate, then, what I believe I've already mentioned once before: There is also an absence of caselaw. Sundry warranty issues. Warranty isn't a duty of ownership. Warranty is a duty of a provider, distributor or retailer. You seem to be being willfully dense: If I put my name on a piece of software and it becomes publicly available in a lawful fashion and is claimed to have harmed someone, I am likely to face liability claims. For that purpose, it really doesn't matter who was the provider/distributor/retailer. In both cases, you have the a person who is presumably the copyright holder making the statement. If they're not the copyright holder, you have a problem. If they are, you're ok. You seem to be being willfully dense: As I've already clarified, murky title and permission problems correlate strongly in my experience to assertions of public domain status -- as is not the case with statements of BSD-licensing. That's a problem with people making false statements, rather than a problem with the concept of placing a work into the public domain itself. You seem to be being willfully dense: As I've already clarified, those erroneous statements correlate strongly in my experience to assertions of public domain status -- as is not the case with statements of BSD-licensing. What seems to be occuring here is a conflating of facts and law. This allegation is incorrect. I have made assertions in both realms, but have made them separately. If you wish to more clearly understand what I wrote, I suggest you re-read. -- Cheers, The genius of you Americans is that you never make Rick Moen clear-cut stupid moves, only complicated stupid moves [EMAIL PROTECTED] that make us wonder at the possibility that there may be something to them that we are missing. --Gamel Abdel Nasser
Re: Some licensing questions regarding celestia
[Claims of my density willfully exceeding DU snipped] On Tue, 02 Sep 2003, Rick Moen wrote: Allow me to reiterate, then, what I believe I've already mentioned once before: There is also an absence of caselaw. We've established that. I maintain that the absence of caselaw is merely attributable to the difficulty of finding an actionable claim. You maintain that it's because dedicating a work to the public domain is meaningless. It would do much to advance your case if you would put forth an argument delineating why a work properly dedicated to the public domain would be meaningless, or at least devoid of the commonly understood meaning. My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. [That is, the same rights that public domain works afford to the public.] As no statutory or case law exists to stop a copyright holder from making such a license or dedication, such a dedication or license is perfectly within the rights of the copyright holder to make. As I've already clarified, murky title and permission problems correlate strongly in my experience to assertions of public domain status -- as is not the case with statements of BSD-licensing. It very well may be. But that in itself doesn't have anything to do with the law and its effect upon non-erronious dedication to the public domain. What seems to be occuring here is a conflating of facts and law. This allegation is incorrect. I'll try to be clearer: The facts surrounding works dedicated to the public domain is, frankly, uninteresting to me. I really only wish to discuss the law regarding them. I do agree that the facts concerning works purportedly in the public domain are of substantial interest for those who would make use of them, and all who would use any such work should definetly be aware of the ramifications of your research. Don Armstrong 1: Well, it's not really mine. This is just the typically understood meaning of dedicating a work to the public. -- Fate and Temperament are two words for one and the same concept. -- Novalis [Hermann Hesse _Demian_] http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpa1fPDxTHuJ.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, Sep 01, 2003 at 10:41:37PM -0700, Rick Moen wrote: Quoting Branden Robinson ([EMAIL PROTECTED]): * To my knowledge, in the U.S, a statement from all the copyright holders of a work is sufficient to place it in the public domain, if they want to do so before it would otherwise pass into the public domain through expiration of copyright Branden -- Would that it were so! The matter has been the topic of extensive discussion on the OSI license-discuss mailing list, and after a great deal of discussion the issue remains unsettled, but nobody can cite any clear indication of what the legal effect of such as declaration is: There has been no relevant caselaw. Okay. I mostly concur with Don Armstrong's challenges to this, but I have one more add. In the U.S., copyrights are completely negotiable instruments. That is, I can completely transfer my interest in them to another party (this is not so much the case in droit d'auteur jurisdisctions). Surely anything that I can sell, or give away to another party under contract, I can abandon altogether. Here's an idea for the Facist fucks that currently run the U.S. Justice Department: assert[1] that any copyrighted work explicitly placed in the public domain by the copyright holder has its copyright automatically transferred to the Federal government. Then the U.S. government, through the Department of Justice, a wholly-owned subsidiary of Microsoft Corp. and various defense and petroleum interests, could *really* stick it to the Free Software movement. There are little bits of non-copyright-expired public domain material scattered all over most Linux distributions. [1] Yes, bare assertion is enough. After all, doesn't our Constitution say, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the Executive Branch of the Federal government.? Sure, of course it does. -- G. Branden Robinson|Religion is regarded by the common Debian GNU/Linux |people as true, by the wise as [EMAIL PROTECTED] |false, and by the rulers as useful. http://people.debian.org/~branden/ |-- Lucius Annaeus Seneca pgpPSQmWpcYaj.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Quoting Branden Robinson ([EMAIL PROTECTED]): Okay. I mostly concur with Don Armstrong's challenges to this, but I have one more add. IANAL, but, when I posted my analysis of the matter to the OSI license-discuss mailing list, OSI general counsel Larry Rosen replied You've answered it beautifully. Give this guy a law degree! (http://www.mail-archive.com/license-discuss@opensource.org/msg06191.html) (Alas, that doesn't get me a law degree, but it means someone generally considered a well-informed copyright lawyer thinks I was on-target.) In the U.S., copyrights are completely negotiable instruments. That is, I can completely transfer my interest in them to another party (this is not so much the case in droit d'auteur jurisdisctions). Surely anything that I can sell, or give away to another party under contract, I can abandon altogether. Certainly you can abandon it. But that does not cause the _title_ to cease to exist. Remember: Public domain creative works are those whose copyright title has either lapsed, become invalid (pre-1978), or were non-copyrightable ab initio (e.g., creative works published or generated directly by the Federal government). There is a difference between a piece of property whose ownership is up for grabs and one that has ceased to exist. If it's not the latter, then it's not public domain (by definition). -- Cheers, The shortest distance between two puns is a straightline. Rick Moen [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): We've established that. I maintain that the absence of caselaw is merely attributable to the difficulty of finding an actionable claim. Thus, you have an opinion. You maintain that it's because dedicating a work to the public domain is meaningless. This I did not say. It would do much to advance your case if you would put forth an argument delineating why a work properly dedicated to the public domain would be meaningless, or at least devoid of the commonly understood meaning. I have no intention of supporting an assertion I never made. My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. That is an opinion, with no known support in law. I'll try to be clearer: The facts surrounding works dedicated to the public domain is, frankly, uninteresting to me. I really only wish to discuss the law regarding them. That is a useful ambition. Pity that there is no caselaw, and no specified mechanism in statutes for an extant, unexpired copyright to be destroyed by the owner. If you hear of relevant case citations, I will be very interested to see them. -- Cheers, I don't like country music, but I don't mean to denigrate Rick Moen those who do. And, for the people who like country music, [EMAIL PROTECTED] denigrate means 'put down'. -- Bob Newhart
Re: Some licensing questions regarding celestia
On Tue, 02 Sep 2003, Rick Moen wrote: Quoting Don Armstrong ([EMAIL PROTECTED]): You maintain that it's because dedicating a work to the public domain is meaningless. This I did not say. It's either meaningless or meaningfull. I can't quite reconcile the idea of it being both. If you're trying to say that the statements themselves aren't as well tested as other types of licences, that may well be. However, the same sort of problem exists with the GPL and other copyleft licenses, a whole class of licences which has yet to be tested in a court of law. [At least to my knowledge.] My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. That is an opinion, with no known support in law. It follows directly from contract law. Baring legistlative or case law hurdles, you can make a contract or license to establish almost any type of relationship between two legal entities. The US common law system is largely a legal system of prohibition, not of permission. [Other countries (Russia, Germany(?)) may have different systems.] That is, anything not specifically prohibited is permitted. Pity that there is no caselaw, and no specified mechanism in statutes for an extant, unexpired copyright to be destroyed by the owner. If you hear of relevant case citations, I will be very interested to see them. I think I'm beginning to see the problem here. Dedicating a work to the public does not require that the copyright be destroyed. The original owner can still be considered to own the copyright, and (I'd argue) will continue to do so for the term specified by law. They are (probably) more than capable of licensing the work to another individual under another license. It merely means that the author has abandoned the protection provided to the author by the copyright statute in the US (and other applicable law systems.) Don Armstrong -- I never until now realized that the primary job of any emoticon is to say excuse me, that didn't make any sense. ;-P -- Cory Doctorow http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgptPTyq3wkZm.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Don Armstrong: You should be able to find caselaw involving a case where a work was improperly placed in the public domain (ie, the person dedicating it to the public isn't the copyright holder,) but as the US system is a law in action, you'll need to find a case where someone placed the work into the public domain, and then withdrew that placement and proceeded to sue people under it. That's a tall order. Rick Moen: That is _not_ necessary in order for the notion to be doubtful. It pretty much suffices that no statutory mechanism whatsoever exists to enact that intention, and for the outcome to be both indeterminate and mostly likely jurisdiction-dependent. Have you heard of the common law? We don't need no stinkin' statutes. ;-) I assume you do not think that there are any common-law doctrines which would enact that intention either. But Don Armstrong has a point: nobody but the copyright holder has standing to sue. If a court was convinced that the copyright holder had lost his right to sue by making a public domain dedication, then effectively the work *would* be in the public domain. So you really have to believe that a court would listen to a copyright holder suing for copyright infringment on a work which he had dedicated to the public domain. Do you believe that? So, what do you recommend for someone who really *wants* to put something in the public domain? Such as, for instance, my web page http://twcny.rr.com/nerode/neroden/fdl.html ? I haven't seen any common license which is good enough. If you really think that this is a serious problem, have you contacted Creative Commons (http://www.creativecommons.org), who promote public domain dedication? What duties of ownership? [Well, at least post 1968.] Sundry warranty issues. No such thing. Warranties are incurred by distribution and stuff like that, not by ownership. My point is that, in my experience, a claim that a package is public domain has a high statistical correlation with title problems, which people making derivative works must beware of. This is irrelevant to the situations I am thinking about (where the author is personally dedicating the work), so please answer my questions without regard to this issue. (I agree that this is a real issue, and personally pay attention to statements *by the author only* that the work has been put into the public domain.)
Re: Some licensing questions regarding celestia
Quoting Nathanael Nerode ([EMAIL PROTECTED]): Have you heard of the common law? Oddly enough, I can't help noticing that your caselaw citations are missing. But Don Armstrong has a point: nobody but the copyright holder has standing to sue. If a court was convinced that the copyright holder had lost his right to sue by making a public domain dedication, then effectively the work *would* be in the public domain. This assumes that the copyright holder has lost his right to sue (and, moveover, any successors in interest). And where are you determining that, please? As mentioned, I've seen no caselaw citations -- most likely because none exist. My best guess based on a pointer on OSI license-discuss[1] to some halfway relevant cases (Micro-Star v. Formgen Inc., 154 F.3d 1107, 9th Cir. 199 -- and Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104, 9th Cir. 1960) is that voluntary copyright abandonments (such as public domain dedications) _may_ (if adjudicated to be effective) merely create a defence against infringement claims by the person making that declaration (equitable estoppal), leaving unclear whether that defense would be effective against successors in interest. Or not. The question does not seem to have been adjudicated. So, what do you recommend for someone who really *wants* to put something in the public domain? Do you intend that as a real, non-rhetorical question? If so, I recommend BSD licence with no advertising clause (or MIT/X). I mean, why would you _not_ want the shield against warranty claims? And if that person objects that, no, he really, really wants to destroy his copyright and make the code be actually (or at least effectively but for certain so) public domain, then I would advise him that it's an imperfect world, and nobody knows how to do that without the risk of creating very troublesome legal questions for the remaining duration of the copyright term. If you really think that this is a serious problem, have you contacted Creative Commons (http://www.creativecommons.org), who promote public domain dedication? Oddly enough, a UK acquaintance of mine (from OSI license-discuss) was in contact with several of the notables (including Prof. Lessig) whose names are cited as founders, to see if they endorsed such site contents as the Public Domain Dedication at http://creativecommons.org/licenses/publicdomain/ . He reports[2] that they do not, and apparently the matter is the subject of some controversy. I have not yet inquired with them directly, though I may get around to doing so. No such thing. Warranties are incurred by distribution and stuff like that, not by ownership. (Please note that my use of the term owner was intended to connote author or issuer, in this context.) If you are trying to assert that being the identifiable author of a piece of code that is claimed to have done harm would not subject you to liability claims, I would suggest you are mistaken. [1] http://www.mail-archive.com/license-discuss@opensource.org/msg06439.html [2] This was in a related discussion, which may have been on the mailing list, on sci.crypt, or on talk.politics.crypto, but I'm unable to find the reference at the moment. -- Cheers, Rick Moen Age, baro, fac ut gaudeam. [EMAIL PROTECTED]
Re: Some licensing questions regarding celestia
Rick Moen [EMAIL PROTECTED] writes: 1:http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html I'm glad the uncredited author has an opinion. The work _is_ credited to Richard Stim, a practicing lawyer specializing in intellectual property and licensing. http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html Disclaimer: The above is intended only to correct the uncredited assertion. I know nothing about Mr. Stim's qualifications beyond the blurb on the web site, and do not imply that his opinions are or are not worth relying on. Regards, Bob -- _ |_) _ |_Robert D. Hilliard[EMAIL PROTECTED] |_) (_) |_) 1294 S.W. Seagull Way [EMAIL PROTECTED] Palm City, FL 34990 USA GPG Key ID: 390D6559
Re: Some licensing questions regarding celestia
This is not legal advice. On Tue, 02 Sep 2003, Nathanael Nerode wrote: So, what do you recommend for someone who really *wants* to put something in the public domain? Such as, for instance, my web page http://twcny.rr.com/nerode/neroden/fdl.html ? I haven't seen any common license which is good enough. Something like the following: Copyright (c) Foobarbaz 3004 Redistribution and use, with or without modification, of this work is permitted, with or without attribution. NO WARANTY... blah blah blah. You then have provided a license which grants rights equivalent to a work in the public domain, with the added benifit of disclaiming a warranty. [You basically are looking at the BSD or MIT/X license stripped of all the subject to:... and with the addition of with or without attribution.] Don Armstrong -- She was alot like starbucks. IE, generic and expensive. -- hugh macleod http://www.gapingvoid.com/batch3.htm http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgpvaimk2Gm7A.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Quoting Don Armstrong ([EMAIL PROTECTED]): On Tue, 02 Sep 2003, Rick Moen wrote: This I did not say. It's either meaningless or meaningfull. I can't quite reconcile the idea of it being both. I didn't say that, either. Don, if you're going to be spending the rest of the month inviting me to justify statements I did _not_ say, it's going to be a very long month. Moreover, I usually jettison from my life as a hopeless time-waster anyone who attempts it about three times in any fairly short period. Your count, in that area, now stands at two. If you're trying to say I see no need to tell you what I'm trying to say. Having reviewed my prior posts, the semantic payloads thereof should be amply clear. My argument[1], for reference, is that a work dedicated to the public domain is equivalent to a work with a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. That is an opinion, with no known support in law. It follows directly from contract law. The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. I think I'm beginning to see the problem here. Nope, you're seeing only one of two independent arguments. Please see below: Dedicating a work to the public does not require that the copyright be destroyed. (1) If there's a copyright title extant, then by definition the article is not public domain. That is incontrovertible. (2) Separately and aside from that, the effect of a public domain dedication is thus far legally indeterminate, for reasons previously cited. -- Cheers, Don't use Outlook. Outlook is really just a security Rick Moenhole with a small e-mail client attached to it. [EMAIL PROTECTED]-- Brian Trosko in r.a.sf.w.r-j
Re: Some licensing questions regarding celestia
On Tue, 02 Sep 2003, Rick Moen wrote: Quoting Don Armstrong ([EMAIL PROTECTED]): It follows directly from contract law. The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. Licenses are primarily founded upon Contract Law, not Copyright Law. Copyright Law is what grants you the rights to a work which you then exchange or give away using a License or Contract. Contract Law is what allows you to establish a legally binding document to exchange or give away those rights or interests. Dedicating a work to the public does not require that the copyright be destroyed. (1) If there's a copyright title extant, then by definition the article is not public domain. That is incontrovertible. (2) Separately and aside from that, the effect of a public domain dedication is thus far legally indeterminate, for reasons previously cited. There are two separate clases of works under issue here: (1) Those that are public domain by statute. (2) Those that are dedicated to the public domain by license or contract. In order for (2) to be legally indeterminate, there needs to be applicable statutory or case law limiting the rights which a copyright holder can give away. If there is no case law or statute limiting those rights, the rights can be given away. Regardless, I'll power up Lexis/Nexis tonight and see what I can dig up. Don Armstrong -- Grimble left his mother in the food store and went to the launderette and watched the clothes go round. It was a bit like colour television only with less plot. -- Clement Freud _Grimble_ http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgppdM0jN5uRG.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
Don Armstrong [EMAIL PROTECTED] writes: Licenses are primarily founded upon Contract Law, not Copyright Law. Copyright Law is what grants you the rights to a work which you then exchange or give away using a License or Contract. Contract Law is what allows you to establish a legally binding document to exchange or give away those rights or interests. Doesn't a contract require renumeration? I don't see how a public domain grant could be considered a contract, because the person giving away their software isn't (by definition) getting anything in return. -- Russ Allbery ([EMAIL PROTECTED]) http://www.eyrie.org/~eagle/
Re: Some licensing questions regarding celestia
On Tue, Sep 02, 2003 at 05:26:27PM -0700, Don Armstrong wrote: The falsity of that statement can be seen at a brief glance from the fact that a license granting unlimited unrevokable rights to the public to use, modify, copy, etc. would be founded in copyright law, rather than copyright law, without even considering the merits of the public domain dedications. Licenses are primarily founded upon Contract Law, not Copyright Law. Copyright Law is what grants you the rights to a work which you then exchange or give away using a License or Contract. Contract Law is what allows you to establish a legally binding document to exchange or give away those rights or interests. http://www.ilaw.com.au/public/licencearticle.html , at least, disagrees with you. -- Glenn Maynard
Re: Some licensing questions regarding celestia
On Tue, 02 Sep 2003, Glenn Maynard wrote: On Tue, Sep 02, 2003 at 05:26:27PM -0700, Don Armstrong wrote: Licenses are primarily founded upon Contract Law, not Copyright Law. Copyright Law is what grants you the rights to a work which you then exchange or give away using a License or Contract. Contract Law is what allows you to establish a legally binding document to exchange or give away those rights or interests. http://www.ilaw.com.au/public/licencearticle.html , at least, disagrees with you. It's true that this is somewhat of an open question, especially involving consideration as it applies to Open Source and Free Software licenses. I should have been more clear that I was refering to licenses in the general sense.[1] (A rather trivial argument can be made that the mere act of using the software provides consideration to the licensor by promoting the software and the licensor...) You are absolutely correct, though, in pointing out that Copyright Law plays a part in the rights that are granted to the public without a License, and why it may be difficult (I hope impossible!) to curtail those rights through a License. Don Armstrong 1: I hadn't really even considered the validity of a license, either through the normal 5 tests, or the unconscionable portion of the UCC. -- Guns Don't Kill People. *I* Kill People. http://www.donarmstrong.com http://www.anylevel.com http://rzlab.ucr.edu pgp7BpjUZSUyh.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Tue, Sep 02, 2003 at 09:12:38PM -0400, Glenn Maynard wrote: On Tue, Sep 02, 2003 at 05:26:27PM -0700, Don Armstrong wrote: Licenses are primarily founded upon Contract Law, not Copyright Law. Copyright Law is what grants you the rights to a work which you then exchange or give away using a License or Contract. Contract Law is what allows you to establish a legally binding document to exchange or give away those rights or interests. http://www.ilaw.com.au/public/licencearticle.html , at least, disagrees with you. I've read this a number of times in the past, and the fact that the author completely misses the fact that indemnification _is_ the quo part of quid pro quo makes the entire article uninteresting, since everything is based on the premise that open source licenses aren't contracts. I give you this copy of the software if you agree not to sue me concerning it. dave...
Re: Some licensing questions regarding celestia
On 2003-09-01 14:50:40 +0100 Mika Fischer [EMAIL PROTECTED] wrote: 1) If one includes public-domain material in a GPL work, does one have to state what material is in the public domain? I'm not sure, but would say yes. 2) Are there any GPL-compatibility issues when the data is licensed differently from the GPL? This is covered in the GPL FAQ about aggregation I think. 3) What rights do need to be granted for data to be included in non-free. I'm not sure. That it can be distributed by the ftp mirrors, I guess. Does it have to be configured specifically for use with Debian or could users just go get it themselves, instead of using our ftp mirror sponsors' connectivity? I didn't see anything in the licence about derived works: is that covered by use? -- MJR/slef My Opinion Only and possibly not of any group I know.
Re: Some licensing questions regarding celestia
Hi, MJ! Thanks for the pointer to the GPL FAQ. I've read it and found some things... * MJ Ray [EMAIL PROTECTED] [2003-09-01 16:49]: On 2003-09-01 14:50:40 +0100 Mika Fischer [EMAIL PROTECTED] wrote: 1) If one includes public-domain material in a GPL work, does one have to state what material is in the public domain? I'm not sure, but would say yes. http://www.fsf.org/licenses/gpl-faq.html#CombinePublicDomainWithGPL indirectly implies that public domain code does not have to be marked as such. 2) Are there any GPL-compatibility issues when the data is licensed differently from the GPL? This is covered in the GPL FAQ about aggregation I think. No it isn't, I'm afraid. http://www.fsf.org/licenses/gpl-faq.html#MereAggregation only deals with code. The impression I get from reading the FAQ is that data does not have to be free at all. http://www.fsf.org/licenses/gpl-faq.html#TOCIfInterpreterIsGPL states: a free software license like the GPL, based on copyright law, cannot limit what data you use the interpreter on. Cheers, Mika
Re: Some licensing questions regarding celestia
On 2003-09-01 17:00:57 +0100 Mika Fischer [EMAIL PROTECTED] wrote: http://www.fsf.org/licenses/gpl-faq.html#CombinePublicDomainWithGPL indirectly implies that public domain code does not have to be marked as such. Yes, as long as you are comfortable with the appearance of GPLing it, which most people are. 2) Are there any GPL-compatibility issues when the data is licensed differently from the GPL? This is covered in the GPL FAQ about aggregation I think. No it isn't, I'm afraid. http://www.fsf.org/licenses/gpl-faq.html#MereAggregation only deals with code. Bah. It also applies in general to all software. The start of the answer is unnecessarily specific to programs. Anyway, 2 down, 1 to go. Best of luck.
Re: Some licensing questions regarding celestia
On 2003-09-01 17:42:28 +0100 Mika Fischer [EMAIL PROTECTED] wrote: Bah. It also applies in general to all software. Is data a subset of software? In general, no. In this case, yes, assuming we are only talking about things that will be uploaded to Debian. [...] Thanks, but it's probably going to be a long way because of all the user-contributed data... I'm sure some will appreciate the effort.
Re: Some licensing questions regarding celestia
Hi, again! * Mika Fischer [EMAIL PROTECTED] [2003-09-01 15:50]: I'm the new maintainer of celestia which is a space simulation program. As such it contains a lot of data, numerical data such as positions of stars as well as 3D models and textures. The copyright status of all this data is a real mess and we (the authors and me) are trying to clarify it. OK, this is getting better and better. How far does one have to go in regard to data? A few examples. - Data published on the web: http://www.obspm.fr/encycl/cat1.html lists stars with possible planets around them. Is one allowed to use this data in a program? Basically for me this is just information and it doesn't make sense to restrict that. - Data announced on the web: http://www.eso.org/outreach/press-rel/pr-2001/pr-07-01.html which leads to: http://obswww.unige.ch/~udry/planet/new_planet.html which has the data. - If one creates a 3D Model from published data, what is the legal status of this work? Can it be GPLed? Can it be put in the public domain? These are all for now. I'm sure more esoteric examples will eventually show up. Cheers, Mi 'And I haven't even started with the images!' ka
Re: Some licensing questions regarding celestia
On Mon, Sep 01, 2003 at 03:50:40PM +0200, Mika Fischer wrote: Now the questions: 1) If one includes public-domain material in a GPL work, does one have to state what material is in the public domain? At least in the U.S., to my knowledge, this is not *required*. I can quote entire plays' worth of Shakespeare without even hinting as to their source or copyright status, and need fear no copryight infrigement claims. However, when mixing copyrighted and public domain materials, it might be *wise* to indicate which materials are in the public domain. But this is often not done -- just look at the Disney corporation. 2) Are there any GPL-compatibility issues when the data is licensed differently from the GPL? So if an author grants the rights to copy, modify and redistribute is it enough to basicaly say: This software is GPLed but file xyz is licensed according to the following statement: ...? Does a list like the following suffice? ---snip--- Filename: xyz Author: Name Terms: blah... Filename: abc ... ---snip--- Ideally, the answer to this question would be simple; any *data* a GPLed *program* operates on can be licensed however one likes. However, certain transformations of data by a GPLed program can make what should be simple more complex. For instance, libgcc.a gets linked into object files produced by GCC by default, so the FSF had to add special rider conditions ensuring that while GCC itself is GPLed, it is permissible to link libgcc against anything. (It has never been, to my knowledge, the FSF's intention to ensure that one could only produce GPLed software with GCC.) In the general case, I'd say the license of the data doesn't matter. However, whether this holds for celestia depends on what the program does. 3) What rights do need to be granted for data to be included in non-free. In particular what about the following: ---snip--- JPL Image Policy JPL images are available for use by the public free of charge. However, by electing to download images from this web site the user agrees that Caltech makes no warranties or representations with respect to its ownership of copyrights for the images, does not represent others who may claim to be owners of rights in the images, and makes no warranties as to the quality of the images. Commercial users (excluding journalistic uses) are required to copy the JPL Image Release document and return a signed copy to the Caltech's Intellectual Property Counsel, California Institute of Technology M/C 201-85, Pasadena, California 91125, who will countersign document and return a copy to you. Copies may be faxed to (626) 577-2528. This document will become effective when it is countersigned by Caltech. ---snip--- I'm not sure we have a written what makes a work distributable in non-free policy. A significant amount of the stuff in non-free would be DFSG-free if it weren't for a discriminatory clause like for non-commercial use only. I *think*, as long as Debian and its mirror network can redistribute the work without charge or royalty, it meets the fundmental test for distributability in non-free -- patent, trademark, trade secret, and other issues notwithstanding. I'm sorry these answers are more gray than you were probably hoping for. -- G. Branden Robinson|I have a truly elegant proof of the Debian GNU/Linux |above, but it is too long to fit [EMAIL PROTECTED] |into this .signature file. http://people.debian.org/~branden/ | pgpc0vZ0cigA9.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, Sep 01, 2003 at 06:42:28PM +0200, Mika Fischer wrote: Is data a subset of software? For the purposes of testing its license terms (if any) against the Debian Free Software Guidelines and distributing it from our archives, yes. For other purposes, please retain a philosopher. :) -- G. Branden Robinson| I suspect Linus wrote that in a Debian GNU/Linux | complicated way only to be able to [EMAIL PROTECTED] | have that comment in there. http://people.debian.org/~branden/ | -- Lars Wirzenius pgpCvnh8blham.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, Sep 01, 2003 at 08:24:57PM +0200, Mika Fischer wrote: How far does one have to go in regard to data? A few examples. - Data published on the web: http://www.obspm.fr/encycl/cat1.html lists stars with possible planets around them. Is one allowed to use this data in a program? Basically for me this is just information and it doesn't make sense to restrict that. In the U.S., mere facts are not subject to copyright protection, and there are no separate laws extending copyright-like protection to databases of facts. In many European jurisdictions, copyright-like protections to extend to databases of facts. One possible ass-covering maneuver might be to perform some sort of transform on the format of the data before distributing it. For all I know, this is necessary for the data to be useful to celestia in the first place. - Data announced on the web: http://www.eso.org/outreach/press-rel/pr-2001/pr-07-01.html which leads to: http://obswww.unige.ch/~udry/planet/new_planet.html which has the data. What's the question here? - If one creates a 3D Model from published data, what is the legal status of this work? Can it be GPLed? Can it be put in the public domain? In the U.S., if your 3D model of published factual information is not original in its expressiveness, it doesn't warrant copyright protection. The application of an algorithmic, transformative process to factual data that results in a 3D model historically has no real grounds for copyright protection in the U.S., but I imagine we'll see that principle come more and more under attack as Hollywood studios use CGI more and more. On the other hand, if you used a 3D model so generated as inspiration for an oil painting you produces, your oil painting would, in all likelihood, be under your copyright in the U.S. (Unless it was a work for hire, in which case it belongs to your employer, etc.) Regarding the public domain question: * If the facts upon which the model was based were in the public domain, AND the transformation that produced the 3D model introduced no original expressiveness through which (in the U.S.) copyright can attach, then the 3D model not just *can* be put in the public domain, it automatically *is* in the public domain. * To my knowledge, in the U.S, a statement from all the copyright holders of a work is sufficient to place it in the public domain, if they want to do so before it would otherwise pass into the public domain through expiration of copyright (now somewhere between 1 and 2 million years after the death of the last suriving author if the copyright is held by individuals, and 100 billion years in the case of corporations[1]). [1] This parenthetical is a facetious exaggeration. I think. -- G. Branden Robinson| No math genius, eh? Then perhaps Debian GNU/Linux | you could explain to me where you [EMAIL PROTECTED] | got these... PENROSE TILES! http://people.debian.org/~branden/ | -- Stephen R. Notley pgpzqosOhad9V.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, Sep 01, 2003 at 04:16:36PM -0500, Branden Robinson wrote: On Mon, Sep 01, 2003 at 08:24:57PM +0200, Mika Fischer wrote: How far does one have to go in regard to data? A few examples. - Data published on the web: http://www.obspm.fr/encycl/cat1.html lists stars with possible planets around them. Is one allowed to use this data in a program? Basically for me this is just information and it doesn't make sense to restrict that. In the U.S., mere facts are not subject to copyright protection, and there are no separate laws extending copyright-like protection to databases of facts. In many European jurisdictions, copyright-like protections to extend to databases of facts. I don't believe that database law applies here, due to the small size of the data set. However, I'm only familiar with the UK implementation; other parts of Europe may differ. It's the French version in particular which matters here anybody? -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | pgptKg73lTJCI.pgp Description: PGP signature
Re: Some licensing questions regarding celestia
On Mon, Sep 01, 2003 at 11:45:05PM +0100, Andrew Suffield wrote: On Mon, Sep 01, 2003 at 04:16:36PM -0500, Branden Robinson wrote: On Mon, Sep 01, 2003 at 08:24:57PM +0200, Mika Fischer wrote: How far does one have to go in regard to data? A few examples. - Data published on the web: http://www.obspm.fr/encycl/cat1.html lists stars with possible planets around them. Is one allowed to use this data in a program? Basically for me this is just information and it doesn't make sense to restrict that. In the U.S., mere facts are not subject to copyright protection, and there are no separate laws extending copyright-like protection to databases of facts. In many European jurisdictions, copyright-like protections to extend to databases of facts. I don't believe that database law applies here, due to the small size of the data set. It is not really the size of the data set that matters; the amount of work required to create the dataset is. -- Wouter Verhelst Debian GNU/Linux -- http://www.debian.org Nederlandstalige Linux-documentatie -- http://nl.linux.org Stop breathing down my neck. My breathing is merely a simulation. So is my neck, stop it anyway! -- Voyager's EMH versus the Prometheus' EMH, stardate 51462.
