Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Russ Nelson nel...@crynwr.com writes: Removing the CC's again. Alexander, you have twice been barred from license-discuss because of your repetitve arguments which do not address points already made by other people. Well, that wasn't the reason (at least not the most recent time he was banned). The reason was that he was frequently directly insulting to people; this happened again later in this thread. I've removed him again, from both license-* lists. I guess he's not going to respect the bans, so the list administrators will have to stay vigilant and be ready to do it again. Which we are. -Karl ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Rick Moen writes: its mission to ensure that OSI Certified licences really convey the To be clear, that would be OSI Approved licenses. It turns out -- and Bruce can hardly be blamed for not having a clue, because we didn't either -- that Certification has some pretty struct requirements under the law; requirements we couldn't meet given our desire that use of the OSI Approved trademark be contingent solely on use of a license which we decided met with the OSD. If OSI elects to impose such a minimum requirement, it wouldn't necessarily need to amend OSD, but rather could find that OSD#2 implies it. Two lines of thought there: Yes, we can interpret what the OSD says, and we have, just as Debian interprets what the DFSG says (in different ways, I might point out, even though the words are practically the same). Or, we can make a constitutional amendment like we did with OSD#10. I think the latter procedure is more transparent. First because we put the question to people, and second because once the question is answered we modify the primary text, rather than expecting them to understand all the case law. [1] Albeit, people who spend significant time addressing other people's rhetorical questions generally need a better hobby. What if I was to ask a rhetorical question now? -- --my blog is athttp://blog.russnelson.com Crynwr supports open source software 521 Pleasant Valley Rd. | +1 315-600-8815 Potsdam, NY 13676-3213 | Sheepdog ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Removing the CC's again. Alexander, you have twice been barred from license-discuss because of your repetitve arguments which do not address points already made by other people. I am no longer on the OSI board nor the OSI postmaster, but I will be happy to explain the situation to the current OSI board and you can be banned again. Now, in this particular case, Mr. Moen has pointed to a web page of his which addresses Dr. Bernstein's arguments. There is NO POINT in copying from Dr. Bernstein's web page arguments which have already been replied-to. You should look at Mr. Moen's page, and address his arguments. If you think Mr. Moen has failed to address some portion of Dr. Bernstein's argument, then you should say that. But repetition is repetition and is not helpful. -russ Alexander Terekhov writes: On Thu, Mar 8, 2012 at 9:51 PM, Rick Moen r...@linuxmafia.com wrote: [...] a fallback permissive licence, the document's fundamental reason for existing is foolhardy: the delusional belief that creative works can be safely magicked into the public domain despite a worldwide copyright regime, and the equally delusional belief that it's even desirable to try (and thereby, among other problems, have no protection against warranty claims). http://cr.yp.to/publicdomain.html Placing documents into the public domain Most rights can be voluntarily abandoned (waived) by the owner of the rights. Legislators can go to extra effort to create rights that can't be abandoned, but usually they don't do this. In particular, you can voluntarily abandon your United States copyrights: It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960). Micro-Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998). Note for people not familiar with legal citations: After a District Court makes its decision in a United States court case, the losing party can appeal to the Circuit Court of Appeals that supervises the district court. These Circuit Courts of Appeals are manned by about 200 of the nation's most experienced judges. Each appeal is heard by three of these appellate judges; for example, the Micro-Star v. Formgen appeal was heard by Alex Kozinski, David R. Thompson, and Stephen S. Trott. Judge Kozinski, with agreement from the other two judges, wrote the decision in the case (in 1998). My quote is from Judge Kozinski's decision. Does the public domain exist in Europe too? Yes. You can voluntarily abandon your European copyrights. You can't abandon certain reputation rights (such as the right to stop people from removing your name from your work), but you can abandon your copyrights. How do I place my work into the public domain? The normal way to abandon a copyright is to make a clear written dedication of the work to the public domain. For example: Most documents have a conventional location for a copyright notice (e.g., the bottom of page 1 of a scientific paper). You can write Public domain in this location rather than Copyright 2005, Copyright 2006, etc. This, by itself, clearly satisfies the overt act test. You can write a subsequent document saying I hereby place my paper `On The Origin Of Species' into the public domain. This, by itself, clearly satisfies the overt act test. How do courts resolve disputes over public-domain status? The Ninth Circuit Model Civil Jury Instructions, 2007 edition, Section 17.19, states a model for the text that courts give to juries: 17.19 COPYRIGHT - AFFIRMATIVE DEFENSE - ABANDONMENT The defendant contends that a copyright does not exist in the plaintiff's work because the plaintiff abandoned the copyright. The plaintiff cannot claim ownership of the copyright if it was abandoned. In order to show abandonment, the defendant has the burden of proving each of the following by a preponderance of the evidence: 1. the plaintiff intended to surrender [ownership] rights in the work; and 2. an act by the plaintiff evidencing that intent. Mere inaction [, or publication without a copyright notice,] does not constitute abandonment of the copyright; however, [this may be a factor] [these may be factors] for you to consider in determining whether the plaintiff has abandoned the copyright. If you find that the plaintiff has proved [his] [her] [its] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instructions on the plaintiff's theory of infringement], your verdict should be for the plaintiff, unless you find that the defendant has proved each of the elements of this affirmative defense, in which event your verdict should be for the defendant. See also Section 20.19 in the 2001
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
On Sat, Mar 10, 2012 at 8:05 PM, Russ Nelson nel...@crynwr.com wrote: [...] and I can tell you that anyone with even a little skill to perform research can find out that Mr. Moen is at best deeply mistaken. In what way? Please be specific about which bits of research refute which of Mr. Moen's claims. May I suggest that you finally do your own research, Mr. Nelson? What did you find apart from Mr. Moen's nonsense page? ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Alexander Terekhov writes: May I suggest that you finally do your own research, Mr. Nelson? You're the one who wants to convince me of something. -- --my blog is athttp://blog.russnelson.com Crynwr supports open source software 521 Pleasant Valley Rd. | +1 315-600-8815 Potsdam, NY 13676-3213 | Sheepdog ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Quoting Russ Nelson (nel...@crynwr.com): [to the Terekhov person:] If you think Mr. Moen has failed to address some portion of Dr. Bernstein's argument, then you should say that. More to the point, he can lay every bit of it out on a Web page somewhere. I can even recommend software he could use to run a Web server, if he can't find one of the new-fangled things elsewhere. Attempting to FAQ one's best understading of an issue for convenient and polite future reference, rather than continually barraging wide CCs with repetitive advocacy postings and getting widely killfiled might possibly appeal. Guess which way I'm betting? ;- ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Quoting Russ Nelson (nel...@crynwr.com): Now, in this particular case, Mr. Moen has pointed to a web page of his which addresses Dr. Bernstein's arguments. FYI, for convenience, that bit has a specific HREF tag: http://linuxmafia.com/faq/Licensing_and_Law/public-domain.html#djb I'd actually really appreciate it if a competent copyright attorney would get around to analysing such issues, but it's not likely to happen, let alone for public knowledge, without requisite infusion of professional fees (the legal world's perfectly understandable equivalent of 'No bucks; no Buck Rogers'). -- Rick Moen The Internet sees your competence and wisdom as damage, r...@linuxmafia.comand will route around it. -- Anil Dash McQ! (4x80) http://twitter.com/anildash/status/2897466042 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Quoting Jim Jagielski (j...@jimjag.com): BTW: How is this different from, say, the US export control provisions? In both cases, a codebase is encumbered by external, and localized restrictions. So does this mean that software distributed out of the US, no matter the OSI license, isn't really open source? During the period that the RSA algorithm was encumbered by a (somewhat weak and potentially challengable) patent in USA jurisdictions, mod_ssl was widely considered to effectively not be open source when deployed in the USA, yes. -- Rick Moen There was an old man Said with a laugh, I rick@linuxmafia From Peru, whose lim'ricks all Cut them in half, the pay is .com Looked like haiku. He Much better for two. McQ! (4x80)--Emmet O'Brien ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
On 03/09/2012 11:41 AM, Rick Moen wrote: As an afterthought, OSI _might_ decide to adopt a policy that all new licences should at least not disclaim/waive any implicit patent waiver that might be created against patents held by licensor (estoppel defence) -- or establish some other minimum requirement on that subject. ... If OSI elects to impose such a minimum requirement, it wouldn't necessarily need to amend OSD, but rather could find that OSD#2 implies it. In other words, do what has previously been done, but consistently. Thanks Bruce attachment: bruce.vcf smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
On Thu, Mar 8, 2012 at 9:51 PM, Rick Moen r...@linuxmafia.com wrote: [...] a fallback permissive licence, the document's fundamental reason for existing is foolhardy: the delusional belief that creative works can be safely magicked into the public domain despite a worldwide copyright regime, and the equally delusional belief that it's even desirable to try (and thereby, among other problems, have no protection against warranty claims). http://cr.yp.to/publicdomain.html Placing documents into the public domain Most rights can be voluntarily abandoned (waived) by the owner of the rights. Legislators can go to extra effort to create rights that can't be abandoned, but usually they don't do this. In particular, you can voluntarily abandon your United States copyrights: It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960). Micro-Star v. Formgen Inc., 154 F.3d 1107 (9th Cir. 1998). Note for people not familiar with legal citations: After a District Court makes its decision in a United States court case, the losing party can appeal to the Circuit Court of Appeals that supervises the district court. These Circuit Courts of Appeals are manned by about 200 of the nation's most experienced judges. Each appeal is heard by three of these appellate judges; for example, the Micro-Star v. Formgen appeal was heard by Alex Kozinski, David R. Thompson, and Stephen S. Trott. Judge Kozinski, with agreement from the other two judges, wrote the decision in the case (in 1998). My quote is from Judge Kozinski's decision. Does the public domain exist in Europe too? Yes. You can voluntarily abandon your European copyrights. You can't abandon certain reputation rights (such as the right to stop people from removing your name from your work), but you can abandon your copyrights. How do I place my work into the public domain? The normal way to abandon a copyright is to make a clear written dedication of the work to the public domain. For example: Most documents have a conventional location for a copyright notice (e.g., the bottom of page 1 of a scientific paper). You can write Public domain in this location rather than Copyright 2005, Copyright 2006, etc. This, by itself, clearly satisfies the overt act test. You can write a subsequent document saying I hereby place my paper `On The Origin Of Species' into the public domain. This, by itself, clearly satisfies the overt act test. How do courts resolve disputes over public-domain status? The Ninth Circuit Model Civil Jury Instructions, 2007 edition, Section 17.19, states a model for the text that courts give to juries: 17.19 COPYRIGHT - AFFIRMATIVE DEFENSE - ABANDONMENT The defendant contends that a copyright does not exist in the plaintiff's work because the plaintiff abandoned the copyright. The plaintiff cannot claim ownership of the copyright if it was abandoned. In order to show abandonment, the defendant has the burden of proving each of the following by a preponderance of the evidence: 1. the plaintiff intended to surrender [ownership] rights in the work; and 2. an act by the plaintiff evidencing that intent. Mere inaction [, or publication without a copyright notice,] does not constitute abandonment of the copyright; however, [this may be a factor] [these may be factors] for you to consider in determining whether the plaintiff has abandoned the copyright. If you find that the plaintiff has proved [his] [her] [its] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instructions on the plaintiff's theory of infringement], your verdict should be for the plaintiff, unless you find that the defendant has proved each of the elements of this affirmative defense, in which event your verdict should be for the defendant. See also Section 20.19 in the 2001 edition. Isn't it impossible to place work into the public domain? Lawrence Rosen is a lawyer who makes money helping people create, and comply with, complicated copying conditions. In an essay titled Why the public domain isn't a license, Rosen claims that a clear written dedication of a copyrighted work to the public domain doesn't actually abandon copyright. In particular, Rosen claims that Intellectual property enters the public domain only when it grows old and that There is no mechanism in the law by which an owner of software can simply elect to place it in the public domain. If you see a Ninth Circuit panel writing It is well settled that rights gained under the Copyright Act may be abandoned, and then a lawyer making the opposite claim, you probably expect the lawyer to explain the contradiction. Rosen doesn't do this. In fact, he doesn't seem to be aware that he's contradicting anybody, let alone three federal judges and the Ninth Circuit Model Civil Jury
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
On Thu, Mar 8, 2012 at 10:53 PM, John Cowan co...@mercury.ccil.org wrote: [...] Someone in the other thread raised the points of first sale and patent exhaustion, but by the same token I doubt if pulling source code off a website counts as a sale: there is neither an express nor an implied contract here, I'd say. First sale in the copyright context is just a shorthand for the judicially-created doctrine that is now codified in 17 USC 109. It does not require a sale but applies to anyone who is the owner of a particular copy or phonorecord lawfully made under this title. You can become the lawful owner of a copy by gift or similar things that are not a sale. And if You are the lawful owner, You can dispose of your copy in any way You want, except for rental in the case of phonorecords or most computer programs, as far as 17 USC is concerned. regards, alexander. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
On Fri, Mar 9, 2012 at 12:27 AM, Rick Moen r...@linuxmafia.com wrote: [Moving this back over to license-discuss where it _still_ belongs, thank you.] Quoting Lawrence Rosen (lro...@rosenlaw.com): [paring the distribution list] Previously CC'd to Basingstoke and back, I wouldn't doubt. For the record: I've simply followed suggestion from my gmail (https://mail.google.com/mail) interface window saying: Consider including: OSI Board OSI License Review and clicked on the links. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
On Thu, Mar 8, 2012 at 10:53 PM, John Cowan co...@mercury.ccil.org wrote: [...] I think this language is much too strong. It's true that there is no treaty or statutory language allowing abandonment, ... Certainly there is statutory language, e.g.: http://www.copyright.gov/reports/exsum.html Waiver of Moral Rights in Visual Artworks Executive Summary Introduction The Visual Artists Rights Act of 1990 (VARA) directed the Copyright Office to conduct a study to assess for Congress the impact of the waiver provisions contained in that legislation. On December 1, 1992, the Copyright Office submitted to Congress an Interim Report summarizing the responses to its earlier Request for Information and outlining other proposed inquiries and avenues of research it would undertake on this question. This final report represents the completed Office study responsive to Congress' request. I. THE VISUAL ARTISTS RIGHTS ACT OF 1990 In 1990, Congress for the first time legislated limited moral rights of attribution and integrity to authors of narrowly defined works of visual arts. These rights, following the model suggested in the international Berne Convention for the Protection of Literary and Artistic Works, mirror rights granted to authors by most industrialized nations of the world. They guarantee to authors of so-called fine arts and exhibition photographs the right to claim or disclaim authorship in a work; limited rights to prevent distortion, mutilation, or modification of a work; and the right, under some circumstances, to prevent destruction of a work that is incorporated into a building. After hearing testimony from artists' representatives, commercial users and other interested parties, Congress determined that the artists' rights should not be absolute, but that they should be tempered by commercial realities, provided that provisions were enacted to insulate authors from being unduly influenced to give away their new-found rights. Thus, the legislation provides for waiver of these moral rights, but only by a signed, written agreement specifying the work and the precise uses to which a waiver applies. ... http://www.law.cornell.edu/uscode/text/17/106A Transfer and Waiver.— (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. (2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
[Moving from license-review, where this no longer seems topical, to license-discuss.] Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): On 3/7/12 8:41 PM, Russ Nelson nel...@crynwr.com wrote: (I think we're ALL agreed that patents which are not freely licensed -- at least for open source software -- are not compatible with open source software, right?) No. I say no is because I see explicit trademark and patent rights exclusion from other open commons licenses for data, etc and even code when you count CC0. Pardon my interjecting, but I think you may have misread Russ's point. I _believe_ he was saying that, if a codebase is encumbered by patents not available royalty-free (e.g., only under 'RAND' terms), then the software in question ends up being effectively proprietary in jurisdictions where the patent is enforceable, irrespective of the software's licence -- as long as the software continues to implement the patented method, anyway: Derivatives that no longer do that would be open source if the licensing and other relevant facts permit. That is, I _believe_ Russ was reminding us all of a fact sometimes forgotten, that suitable licensing is a necessary but not sufficient requirement for open source, and always has been: E.g., if someone releases a binary codebase and claim it's BSD, you might reasonably believe it's open source -- but then you might notice that the source has for whatever reason never appeared or is no longer findable. Ergo, effectively proprietary, despite licensing. A week later, someone finds a matching source tarball: You now reasonably believe it's open source again. A week more, and someone finds an encumbering patent for your jurisdiction that isn't available royalty-free: effectively proprietary again. Trademark encumbrance, by contrast, is a red herring, as it never blocks any usage or direction of development, and only affects branding details. (See: Iceweasel, CentOS, Sawfish window manager.) I bowed out of upthread discussion in part because it was difficult to bring clarity to it, in the face of (pardon my wording) a great deal of interpersonal noise and advocacy posturing. E.g., the notion that anyone who thinks new licences ought to address patent issues in some way is logically obliged to try to revoke BSD licence's OSI Certified status (or formally deprecate the licence) is absurd, and we could have done without those and similar time-wasting polemics. At the beginning of the CC0 evaluation, I opined: (1) It's obviously OSD-compliant. (2) It would be helpful if CC would drop the patent waiver from section 4a, leaving open the possibility if not likelihood of implicit patent grants and defences based on estoppel -- and OSI should ask CC to please consider doing so. (3) Irrespective of CC0's merits as a fallback permissive licence, the document's fundamental reason for existing is foolhardy: the delusional belief that creative works can be safely magicked into the public domain despite a worldwide copyright regime, and the equally delusional belief that it's even desirable to try (and thereby, among other problems, have no protection against warranty claims). I think -- hope -- that we all agree, despite recent noisy polemics, most of us agree that it's useful for newly crafted licences to permit at least implicit patent defences if not explicit patent rights, and that modern licences that address such matters are, all other things being equal, a better idea than ones that don't -- but that saying that is miles away from saying BSD should be formally deprecated. (As Larry points out, there are nuances among degrees and types of explicit patent grants.) -- Rick MoenTake note; the semicolon is never to be used correctly. r...@linuxmafia.com -- FakeAPStylebook McQ! (4x80) ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
On 03/08/2012 12:51 PM, Rick Moen wrote: the notion that anyone who thinks new licences ought to address patent issues in some way is logically obliged to try to revoke BSD licence's OSI Certified status (or formally deprecate the licence) is absurd, and we could have done without those and similar time-wasting polemics. And they should stop now, please. (3) Irrespective of CC0's merits as a fallback permissive licence, the document's fundamental reason for existing is foolhardy: the delusional belief that creative works can be safely magicked into the public domain despite a worldwide copyright regime, and the equally delusional belief that it's even desirable to try (and thereby, among other problems, have no protection against warranty claims). Which makes it not tremendously worthy of the continuing effort to get it approved, IMO. most of us agree that it's useful for newly crafted licences to permit at least implicit patent defences if not explicit patent rights, and that modern licences that address such matters are, all other things being equal, a better idea than ones that don't DiBona called for it to be explicit in licenses going forward, I agree. Let's not ignore how the times have changed and what we have learned since starting with Open Source. -- but that saying that is miles away from saying BSD should be formally deprecated. To be put in whatever hole is reserved for all if you do this, you must also shoot yourself in the foot arguments. Thanks Bruce attachment: bruce.vcf smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Rick Moen scripsit: That is, I _believe_ Russ was reminding us all of a fact sometimes forgotten, that suitable licensing is a necessary but not sufficient requirement for open source, and always has been: E.g., if someone releases a binary codebase and claim it's BSD, you might reasonably believe it's open source -- but then you might notice that the source has for whatever reason never appeared or is no longer findable. OSD #2 covers that: it is the only clause applicable to programs rather than their licenses. But there is of course no similar clause requiring a program to be usable, and there cannot be. In general, the OSD only works because copyright law is effectively worldwide. We cannot go saying that some well-known work is not open source because someone holds a patent on its methods in Azerbaijan. At the beginning of the CC0 evaluation, I opined: (1) It's obviously OSD-compliant. (2) It would be helpful if CC would drop the patent waiver from section 4a, leaving open the possibility if not likelihood of implicit patent grants and defences based on estoppel -- and OSI should ask CC to please consider doing so. Agreed, although CC apparently is swamped at present and can't process such a request. (3) Irrespective of CC0's merits as a fallback permissive licence, the document's fundamental reason for existing is foolhardy: the delusional belief that creative works can be safely magicked into the public domain despite a worldwide copyright regime, I think this language is much too strong. It's true that there is no treaty or statutory language allowing abandonment, but most proprietary rights can be abandoned by appropriate action. I abandon hundreds of rights in personal property every week when I take the trash to the curb. We simply don't know how well copyright abandonment works, which is why CC0 sensibly provides a backup license. and the equally delusional belief that it's even desirable to try (and thereby, among other problems, have no protection against warranty claims). It's unclear that warranty claims have any teeth against something neither sold nor offered for sale. You'd have a hard time enforcing a warranty on something you found in the trash. Someone in the other thread raised the points of first sale and patent exhaustion, but by the same token I doubt if pulling source code off a website counts as a sale: there is neither an express nor an implied contract here, I'd say. -- There are three kinds of people in the world: John Cowan those who can count,co...@ccil.org and those who can't. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
Quoting John Cowan (co...@mercury.ccil.org): [quoting me] (3) Irrespective of CC0's merits as a fallback permissive licence, the document's fundamental reason for existing is foolhardy: the delusional belief that creative works can be safely magicked into the public domain despite a worldwide copyright regime, I think this language is much too strong. It's true that there is no treaty or statutory language allowing abandonment, but most proprietary rights can be abandoned by appropriate action. I abandon hundreds of rights in personal property every week when I take the trash to the curb. We simply don't know how well copyright abandonment works, which is why CC0 sensibly provides a backup license. Abandonment of ownership rights is simply _not_ the same as the property entering the public domain, which term means that the creative work's ownability has ceased permanently. For gosh sakes, are there still people going around believing that public domain is the same as abandonment of rights? Really? Those two concepts are _very_ frequently confused by advocates of 'PD dedications', e.g., Prof. Bernstein. And that is a vital distinction: The mere fact that you have walked away from ownership of your property (and let's assume, for the sake of discussion, that you have done so with actual legal effect) in no way automatically prevents a successor from ending up with ownership: your heirs, your creditors, etc.[1] In forlorn hopes of not having to endlessly recapitulate this discussion, I long ago attempted to lay out my best understanding of the matter here: http://linuxmafia.com/faq/Licensing_and_Law/public-domain.html It's unclear that warranty claims have any teeth against something neither sold nor offered for sale. True -- and yet, actual warranty protection is available with a 13-line standard licence, ensuring that it's a non-issue. [1] http://www3.wcl.american.edu/cni/9609/10306.html ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] [License-review] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]
[Moving this back over to license-discuss where it _still_ belongs, thank you.] Quoting Lawrence Rosen (lro...@rosenlaw.com): [paring the distribution list] Previously CC'd to Basingstoke and back, I wouldn't doubt. Thank you, Alexander, for a clear rejoinder to my essay arguing that the public domain is not effective. The case you referenced in your email, Hampton v. Paramount Pictures, 279 F.2d 100 (9th Cir. Cal. 1960), stands for the proposition that, at least in the Ninth Circuit, a person can indeed abandon his copyrights (counter to what I wrote in my article) -- but it takes the equivalent of a manifest license to do so. :-) The Terekhov person was quoting Prof. Bernstein? ;- How very droll. Bernstein is of course one of the primary people propagating the aforementioned hapless confusion between property abandonment and public domain. I made a point of creating an entire section of my page about PD-dedication attempts to clearing up confusion created by Dan's page -- and pointing out his non-sequitur arguments claiming that you specifically were misinformed, attributing to you positions you don't hold and never articulated, etc. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
