RE: PCT (Patents, Copyright, Trademark) policy and Open Source
Robert, I am really interested in this stuff. First all, I have to say that I suspect a tad bit of paranoia in the reporting about what's happening overseas. What sources are you quoting that talk about criminalization for patent infringement? I'd like to read that stuff. Russell McOrmond was saying that IBM is actively lobbying countries to change their software patent laws. Again, I haven't seen the reporting...not that I doubt it, but I just haven't seen any of the evidence. Meanwhile, Red Hat is a patent holder. What say you about that? kb -Original Message- From: Robert Osfield [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 27, 2004 4:51 AM To: Russell McOrmond; OSI license discussion Subject: Re: PCT (Patents, Copyright, Trademark) policy and Open Source Hi Russel, I expect your position is held by 95% of software developers, I havn't met one software engineer in my career, wether working on closed or open source, who has ever believed that software patents are good for the software industry. It is clear that software patents benefit large coorporations and patent lawyers, but the vast majority software industry is not in either of these catagories. Its my belief that software patents are the single greatest threat to SME's in the software sector and open source development. Open source depends upon contributions for many individuals, be them working for a corporation or on their own behalf. The increasing threat of patent litigation and the threat crimialisation of patent infringement (yep there's a directive including this going through the EU right now) is surefly going to make contributors think twice about submitting code, or starting a new project. Software engineers are often really generous with giving them time to public projects, by won't be happy doing time for doing so. Without contributors there is no open source. With copyright you can eaily be aware of when you're breaking someone elses copyright, you can manage this risk entirely. But with patents is very difficult to know whether you infringe or not, a patent can pop up even after you've developed something and published it, but then its down to the ficklness of court to prove that you don't infringe, if you can't afford to get to court then the onwer of even a bogus patent wins. Clearly their are lots of downsides to the open source from software patents. I have yet to so single positive reason for open source that software patents might bring. The only reason I've seen for pursuing software patents is that of defense, which pre-presumes that software patents exist or will exist which you'll need to defend against, but this is hardly a positive reason. Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Public domain mistake?
Under Utah law, the elements of promissory estoppel are: (1) The promisee acted with prudence and in reasonable reliance on a promise made by the promisor; (2) the promisor knew that the promisee had relied on the promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person; (3) the promisor was aware of all material facts; and (4) the promisee relied on the promise and the reliance resulted in a loss to the promisee. --- J.R. Simplot Co. v. Sales King Int'l, Inc., 17 P.3d 1100, Utah 2000) In the citation above, I was thinking of the GPL, but it seems it would apply to open source licenses generally. If there exists a mistaken presumption of law (not material fact) which preempts or voids an open source license agreement and the source code has been widely distributed under that license, the copyrighted code permissions would exist in the public domain for all practical purpose. Anyone who could show they had invested time and effort in reliance on promised copyright permissions could claim promissory estoppel to continue developing and expanding projects into the future. RMS would be rather disappointed. Microsoft would be happy. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Public domain mistake?
Daniel, Could you please clarify for a non-lawyer where you see the Public domain mistake here (the Subject of your message)? If my understanding is correct, you are saying that if a permissible open source license agreement is not enforceable then the source code is in public domain for all practical purposes. That sounds reasonable/natural to me. Where is the public domain mistake? Thanks, Alex. On Tue, 27 Jan 2004, daniel wallace wrote: If there exists a mistaken presumption of law (not material fact) which preempts or voids an open source license agreement and the source code has been widely distributed under that license, the copyrighted code permissions would exist in the public domain for all practical purpose. Anyone who could show they had invested time and effort in reliance on promised copyright permissions could claim promissory estoppel to continue developing and expanding projects into the future. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: PCT (Patents, Copyright, Trademark) policy and Open Source
Hi Ken, On Tuesday 27 January 2004 20:16, Ken Brown wrote: I am really interested in this stuff. First all, I have to say that I suspect a tad bit of paranoia in the reporting about what's happening overseas. Not overseas for me. I'm based in the Scotland, very much part of the EU for better or for worse. I prefer to be view myself as informed is being even a tad bit paranoid :) What sources are you quoting that talk about criminalization for patent infringement? Here's some source of information on the European situation. Basically there's two directives the Directive on Intellectual Property Rights Enforcement and the Directive on the patentability of computer-implemented inventions. Two source for these are respectively: http://wiki.ael.be/index.php/IPEnforcementDirective http://ffii.org/ Both directives are controversial, the IP enforcement covers software patents and includes highly controversal criminal sanctions section. This is will go to the vote in the European Parliament (EP) in early February. The software patents directive which so far has been turned around at first vote in EP vote back in the summer which ratified that pure software is patentable, as per the 1974 Europen Patent Convention. However, the likes of IBM, Microsoft, Nokia, the patent lawyers are heavily lobbying to revert back to making software patentable. The Europen Commision is pro software patent, as is the Concil. The Council and the Commision aren't democratic bodies or carry out their work in public. Currently the Directive is back in the hands of the Council. So this particular battle is far from one. Once the Council has amended the directive, it'll be back to the EP for a final vote. I'm not an expert on this matters, its best to go to the above links, join the mailing lists, sign the call for action etc. Meanwhile, Red Hat is a patent holder. What say you about that? The thing called defensive patenting, so its nothing to worry about while the patents sit there idle. A waste of Red Hats time and money, but nothing too worrisome. The problem comes when the likes of Red Hat start to think they have nothing to loose and go on the Patent offensive. I can't ever imagine Red Hat becoming another SCO but management and circumstances can change. The real dangers lurk in other organisations though, the ones with more patents, or less to loose by unleashing them. Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Public domain mistake?
daniel wallace scripsit: Under Utah law, the elements of promissory estoppel are: (1) The promisee acted with prudence and in reasonable reliance on a promise made by the promisor; (2) the promisor knew that the promisee had relied on the promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person; Since public licenses are promises to everyone, I should think the elements of #2 would be hard to establish in any particular case. When I license my work, I don't *know* that you rely on my promises, since I don't know you at all. If there exists a mistaken presumption of law (not material fact) which preempts or voids an open source license agreement and the source code has been widely distributed under that license, the copyrighted code permissions would exist in the public domain for all practical purpose. Anyone who could show they had invested time and effort in reliance on promised copyright permissions could claim promissory estoppel to continue developing and expanding projects into the future. It looks to me like this would protect you against an attempt to revoke a GPL license in bad faith; but it's far from clear to me that it would give you full rights to the work beyond what the GPL allows. IANAL, TINLA. -- You are a child of the universe no less John Cowan than the trees and all other acyclichttp://www.reutershealth.com graphs; you have a right to be here.http://www.ccil.org/~cowan --DeXiderata by Sean McGrath [EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Public domain mistake?
On Tue, 27 Jan 2004 [EMAIL PROTECTED] wrote: daniel wallace scripsit: Under Utah law, the elements of promissory estoppel are: (1) The promisee acted with prudence and in reasonable reliance on a promise made by the promisor; (2) the promisor knew that the promisee had relied on the promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person; Since public licenses are promises to everyone, I should think the elements of #2 would be hard to establish in any particular case. When I license my work, I don't *know* that you rely on my promises, since I don't know you at all. IMO, #2 is pretty much assumed under any license. One does not need to know licensee(s) to know what they rely on. A reasonable license giver should know that license users rely on the permission to use the licensed work. Alex. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Public domain mistake?
Daniel, I don't think your analysis is correct. Promissory estoppel is a contract doctrine that has nothing to do with a bare license like the GPL. /Larry Rosen -Original Message- From: daniel wallace [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 27, 2004 12:27 PM To: [EMAIL PROTECTED] Subject: Public domain mistake? Under Utah law, the elements of promissory estoppel are: (1) The promisee acted with prudence and in reasonable reliance on a promise made by the promisor; (2) the promisor knew that the promisee had relied on the promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person; (3) the promisor was aware of all material facts; and (4) the promisee relied on the promise and the reliance resulted in a loss to the promisee. --- J.R. Simplot Co. v. Sales King Int'l, Inc., 17 P.3d 1100, Utah 2000) In the citation above, I was thinking of the GPL, but it seems it would apply to open source licenses generally. If there exists a mistaken presumption of law (not material fact) which preempts or voids an open source license agreement and the source code has been widely distributed under that license, the copyrighted code permissions would exist in the public domain for all practical purpose. Anyone who could show they had invested time and effort in reliance on promised copyright permissions could claim promissory estoppel to continue developing and expanding projects into the future. RMS would be rather disappointed. Microsoft would be happy. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: PCT (Patents, Copyright, Trademark) policy and Open Source
Ken Brown wrote: [...] I am really interested in this stuff. First all, I have to say that I suspect a tad bit of paranoia in the reporting about what's happening overseas. What sources are you quoting that talk about criminalization for patent infringement? Sources in opposition to the following proposal for a directive (without later amendments), I guess. http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0046en01.pdf (see Article 20) I'd like to read that stuff. Read also this: http://www.europarl.eu.int/meetdocs/committees/juri/20031126/498789en.pdf (see Amendment 2 and Amendment 27) I may be missing and/or misunderstanding something, of course. Well, http://www.digital-law-online.com/lpdi1.0/treatise16.html (II.L.4. Criminal Infringement) regards, alexander. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Public domain mistake?
If the GPL is a bare license,then what binds the two mutually disjoint permissions in a distributed derivative work. How is distribution authorized? There are two copyright authors in a derivative work, the preexisting authorizing author and modifying author. In a bare license or unilateral permission, by definition the licensor may place no condition on another's disjoint reward of exclusive rights (or they wouldn't be exclusive). You can authorize a derivative work with a unilateral permission, but it requires a bilateral grant of permissions to distribute a derivative work. The unilateral permission or bare license model of patent law history breaks down under copyright law because of the two disjoint exclusive copyrights existing at the same time in a derivative work. There is no analogous derivative patent. In IBM v. SCO, IBM refers to the GPL as a public agreement in binding legal form because in a derivative work both copyright permissions of both authors must be legally secured in a binding agreement or distribution of a derivative work infringes one of the author's rights. When the GPL says: You may... copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:... It is not possible to grant permission to distribute modifications... provided that you also meet all of these conditions:... without placing conditions on the exclusive rights of the modifying author and it takes his legally binding permission to do so.. This result leads to enforcement of the GPL under state law. This ultimately leads to preemption of the GPL under sec. 301 because copyleft is a new right against the world as cited in ProCD, Inc. v. Zeidenberg, 86 F.3d 1447. When SCO's Mark Heise said copyright law preempted the GPL and only allowed one copy he was being deliberately misleading. He wasn't referring to the number of copies, he was referring to the number of successors. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: For Approval: Linisys Open Source License v1.4
Greetings, We submitted our proposed License several weeks ago and havent seen any response. Can I get confirmation that it was recieved? -- Chris Tusa Linisys, Computing Evolution [EMAIL PROTECTED] 504.464.4610 x1 - Shark Linux Software - Linux Hardware Products - Consulting -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Public domain mistake?
On Tue, 27 Jan 2004, daniel wallace wrote: Anyone who could show they had invested time and effort in reliance on promised copyright permissions could claim promissory estoppel to continue developing and expanding projects into the future. I've been trying to wrap my head around this and I'm thus far not able to. The GPL is an example of a copyright permission. If a third party (such as a patent holder) tried to revoke the promise of the GPL, would this not be an area of law that would protect us against this? We are building an entire economy around copyleft and non-copyleft free software and patent filers are attempting to harm that economy by creating legal landmines. RMS would be rather disappointed. Microsoft would be happy. Sounds like RMS would be happy, Microsoft/SCO/IBM would be disappointed. What am I missing here? What is a situation where a monopoly-rent-seeker would gain benefit from this area of law, but a non-monopoly-rent-seeker (FLOSS movement) would not? --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
The Copyright Act preempts the GPL
Section 103 (b) of the Copyright Act says: The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. This says there exist two mutually exclusive copyrights in a derivative work. To distribute this work the agreement of both authors is required... the copyrights are exclusive and therefore disjoint. Whenever a derivative work is authorized, a second disjoint exclusive copyright is automatically awarded to the modifying author. An original author can unilaterally permit (prepare) a derivative work under section 106 (2)of the Copyright Act but cannot authorize distribution of that derivative work. The Copyright Act speaks no further to the subject of the distribution of derivative works. It is left to state law to enforce the bilaterally binding legal agreement required to secure both author's permissions to distribute a derivative work. How then, do you permit a derivative work to be distributed? This is usually done at the time the preexisting author authorizes the derivative work by way of a contractual agreement of some form with the contributing author. The GPL purports to authorize the distribution of derivative works within its four corners. However you choose to describe the GPL... contract, license, unilateral or bare the GPL purports to grant permissions to distribute derivative works. As argued above, the only way this is possible is through a bilateral legally binding agreement between the two mutually exclusive authors that are present in a modified work. There is no federal common law to enforce these mutually binding legal agreements between two authors concerning distribution of derivative works. This requires enforcement under color of state authority. The GPL purports to abolish privity concerns ad infinitum in a succession of mutually binding agreements between authors. The FSF calls this new legal creation copyleft. The GPL purports to restrict the exclusive rights of a whole succession of original authors in a new right against the world... not just two individuals in a mutual agreement. Section 301 of the Copyright Act preempts any such creation of new rights in copyright law under the color of state authority. I feel confident the GPL will be ruled to be preempted because of the concerns expressed above. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Public domain mistake?
Note: IANAL, I just hang around with and enjoy conversations with lawyers and law students. On Tue, 27 Jan 2004, daniel wallace wrote: There are two copyright authors in a derivative work, the preexisting authorizing author and modifying author. In a bare license or unilateral permission, by definition the licensor may place no condition on another's disjoint reward of exclusive rights (or they wouldn't be exclusive). Aren't we talking about possibly two different things here? There are different situations here: where the new work is a derivative of existing code (you modifying someone else's work with their permission and conditions) and where there is new code being added to the collection (linked) to form part of a larger program (where that linking and later distribution of the whole program is done with permission and conditions). When you wish your new work to be linked/compiled/etc together with the existing work, the only way you have permission to do so is if you offer that work in a compatible license. What you authored is not itself be a derivative work, but when it is added to the program the result is a derivative program. I don't think copyright law talks in terms of works under copyright, and programs which are a linking together of many individual works under copyright. Even the term compilation and collection has a meaning in copyright circles different than what we would be trying to talk about here. I don't see how you loose any exclusive right if you wish to link/compile/etc together your new code (your work) with the existing GPL licensed work(s). You can license the same code in additional licenses. Some software projects have asked copyright holders to relicense their work which really means offering existing copyright code in yet another license as you cannot revoke any existing irrevocable license. The GPL just says (unfortunately not in as clear terms as we all would like) that at least one of the licenses you offer must be a worldwide, irrevocable license compatible with the GPL. One of the problems I find with the GPL is that it is written more like a manifesto to explain why it exists rather than to use traditional license terminology. While this is great in explaining the principles of the GNU project, it makes understanding it in connection with the laws and case-law of any given country just that much harder. It is not possible to grant permission to distribute modifications... provided that you also meet all of these conditions:... without placing conditions on the exclusive rights of the modifying author and it takes his legally binding permission to do so.. This result leads to enforcement of the GPL under state law. This ultimately leads to preemption of the GPL under sec. 301 because copyleft is a new right against the world as cited in ProCD, Inc. v. Zeidenberg, 86 F.3d 1447. This is something I wonder if it would be worth looking at a bit closer. I believe this is why Eben Moglen is so insistent that the GPL is a copyright permission and not a contract. There are two different sets of permissions here: the permission to modify an existing work (and related conditions), and the permission to distribute the entire program (with or without additions, and under related conditions). I don't think these different permissions come into conflict. --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
daniel wallace scripsit: Section 103 (b) of the Copyright Act says: The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. This says there exist two mutually exclusive copyrights in a derivative work. To distribute this work the agreement of both authors is required... the copyrights are exclusive and therefore disjoint. Whenever a derivative work is authorized, a second disjoint exclusive copyright is automatically awarded to the modifying author. I entirely disagree (IANAL, TINLA) with your reading of the Act here; you seem to be construing it to mean the exact reverse of the plain meaning, which is that the creator B of the derivative work b, provided he acted under license from the copyright owner A of the original work a, has all the rights of a copyright owner. It is B and only B whose permission is needed to distribute b. An original author can unilaterally permit (prepare) a derivative work under section 106 (2)of the Copyright Act but cannot authorize distribution of that derivative work. Very true, but that does not mean that the original author must authorize jointly; the original author is not in it at all. How then, do you permit a derivative work to be distributed? This is usually done at the time the preexisting author authorizes the derivative work by way of a contractual agreement of some form with the contributing author. Per contra, the contractual agreement is about the permission to create the derivative work in the first place. Note that the six exclusive rights mentioned in S. 106 do not include authorizing the distribution of derivative works, but only the preparation of them. The GPL purports to authorize the distribution of derivative works within its four corners. However you choose to describe the GPL... contract, license, unilateral or bare the GPL purports to grant permissions to distribute derivative works. It does not. The GPL imposes a condition on anyone who wishes to make a derivative work, viz. that the derivative work, if distributed at all, be distributed under the conditions of the GPL and no others. The GPL purports to abolish privity concerns ad infinitum in a succession of mutually binding agreements between authors. Privity is not abolished but bypassed, and not by agreement, but by a condition imposed on the exercise of the license. -- John Cowan www.ccil.org/~cowan [EMAIL PROTECTED] www.reutershealth.com [P]olice in many lands are now complaining that local arrestees are insisting on having their Miranda rights read to them, just like perps in American TV cop shows. When it's explained to them that they are in a different country, where those rights do not exist, they become outraged. --Neal Stephenson -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
