Discussion:
New 'Public Domain' Licence
(too old to reply)
Anonymous
2005-06-03 17:34:42 UTC
Permalink
I have seen quite a few people who want to licence their software as though
it is in the public domain. they are often told to go with a bsd or x11
licence. They usually say they don't even whant the restrition of forcing
people to include the notice.
The reasoning for the use of the common licences is that they are well
understood. Therefore in an attempt to satify all parties I propose the
following licence for use in those types of situations. The licence I
propose consists of the MIT licence below, excluding the part in the quare
brackets. This licence therefore is well understood, and does not have the
single restriction of the MIT licence.

Copyright (c) <year> <copyright holders>
Permission is hereby granted, free of charge, to any person obtaining a copy
of this software and associated documentation files (the "Software"), to
deal in the Software without restriction, including without limitation the
rights to use, copy, modify, merge, publish, distribute, sublicense, and/or
sell copies of the Software, and to permit persons to whom the Software is
furnished to do so[, subject to the following conditions:

The above copyright notice and this permission notice shall be included in
all copies or substantial portions of the Software].

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING
FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS
IN THE SOFTWARE.




Licence taken from http://www.opensource.org/licenses/mit-license.php
Sean Kellogg
2005-06-03 19:47:30 UTC
Permalink
As long as whoever uses this license understands they are not, in fact,
putting it in the public domain (copyright is retained)... and that this is
not, in fact, a license (waver of implied warranty is a contractual
provision)... and that the license is not irrevocable (after 35 years the
author or heirs of the author can revoke any license, and the right cannot be
waived)... then I guess this is a fine license.

But I really don't understand the obsession with trying to put works in the
Public Domain. Like it or not, copyright is a product of statute, not
natural law, and the statutes of pretty much every industrial nation have
been written to eliminate the public domain other than the expiration of the
term. This is why we have things like the BSD, GPL, and the X11/MIT license.

-Sean
Post by Anonymous
I have seen quite a few people who want to licence their software as though
it is in the public domain. they are often told to go with a bsd or x11
licence. They usually say they don't even whant the restrition of forcing
people to include the notice.
The reasoning for the use of the common licences is that they are well
understood. Therefore in an attempt to satify all parties I propose the
following licence for use in those types of situations. The licence I
propose consists of the MIT licence below, excluding the part in the quare
brackets. This licence therefore is well understood, and does not have the
single restriction of the MIT licence.
Copyright (c) <year> <copyright holders>
Permission is hereby granted, free of charge, to any person obtaining a
copy of this software and associated documentation files (the "Software"),
to deal in the Software without restriction, including without limitation
the rights to use, copy, modify, merge, publish, distribute, sublicense,
and/or sell copies of the Software, and to permit persons to whom the
The above copyright notice and this permission notice shall be included in
all copies or substantial portions of the Software].
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING
FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER
DEALINGS IN THE SOFTWARE.
Licence taken from http://www.opensource.org/licenses/mit-license.php
--
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
c: 206.498.8207    e: ***@u.washington.edu
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown
Don Armstrong
2005-06-03 19:53:34 UTC
Permalink
First of, please use your real name when discussing things upon this
list. Anonymity makes it rather difficult for others to follow your
arguments, and interferes with the primary mission of debian-legal.
Post by Anonymous
I have seen quite a few people who want to licence their software as
though it is in the public domain. they are often told to go with a
bsd or x11 licence. They usually say they don't even whant the
restrition of forcing people to include the notice.
The MIT license is a fairly standard way to license things in a manner
as close to the public domain in countries that do not have a concept
of public domain. [It's not particularly "new".]
Post by Anonymous
The licence I propose consists of the MIT licence below, excluding
the part in the quare brackets.
The above copyright notice and this permission notice shall be
included in all copies or substantial portions of the Software].
The part above is almost a no-op, and a good idea regardless, because
it informs recipients of the work what their rights are, and enables
them to sanely to exercise the granted rights upon the work.


Don Armstrong
--
"People selling drug paraphernalia ... are as much a part of drug
trafficking as silencers are a part of criminal homicide."
-- John Brown, DEA Chief

http://www.donarmstrong.com http://rzlab.ucr.edu
Glenn Maynard
2005-06-03 22:08:54 UTC
Permalink
Post by Don Armstrong
First of, please use your real name when discussing things upon this
list. Anonymity makes it rather difficult for others to follow your
arguments, and interferes with the primary mission of debian-legal.
I usually just ignore anonymous/pseudonymous messages on technical lists.
Post by Don Armstrong
Post by Anonymous
The above copyright notice and this permission notice shall be
included in all copies or substantial portions of the Software].
The part above is almost a no-op, and a good idea regardless, because
it informs recipients of the work what their rights are, and enables
them to sanely to exercise the granted rights upon the work.
It doesn't necessarily allow people to do much of anything. If I'm
distributing a closed work that uses a few pages of MIT-licensed code,
there's no practical value in showing the MIT license (or other permissive
licenses) to users. Why, as a user or a programmer, should I care that
the portions of a black box that come from Lua are under a permissive
license? Saying "this program uses Lua" has value--giving credit--but
telling me that I can freely distribute the part that is Lua has no value,
since I can't actually do so (it's tucked away inside a binary; if I want
Lua, I'll go download the source).

In fact, it's potentially confusing; you have to be careful to be clear that
only certain embedded portions are under the license, not the work as a whole.

Also, due to license proliferation, different MIT-ish projects are actually
under a collection of slightly varying permissive licenses, which prevents
simply listing the one license and merging the copyright holder names--it's
not hard to end up having to list half a dozen variants. For a project
whose documentation is a simple "plug it in, turn it on, don't stick your
fingers in the fan" pamplet, this isn't a trivial problem--the licenses
can be bigger than the documentation.

I use the MIT license myself, but I can say from experience that there in
some scenarios, it has costs without any benefit. I do think this is a
minor bug in the license: many people (such as myself) who use permissive
licenses do so specifically to make it easy for anyone to use their code
for any purpose, even proprietarily, without licensing getting in the way.
I don't consider this significant enough to offset the cost of proliferating
a new license, but I think it's worth acknowledging.

If anyone really wants a license that doesn't have this problem, there's
libpng's, which only requires the license statement in source distributions.
(Unfortunately, the name of the software, "The PNG Reference Library", is
used in the main body of the license, so changes beyond the copyright notice
are required--unlike the MIT license, it's not a simple drop-in license. It
also has an obnoxiouly wordy "Contributing Authors" section, instead of
simply using a (c) notice.)
--
Glenn Maynard
Don Armstrong
2005-06-03 23:39:12 UTC
Permalink
Post by Glenn Maynard
Post by Don Armstrong
Post by Anonymous
The above copyright notice and this permission notice shall be
included in all copies or substantial portions of the Software].
The part above is almost a no-op, and a good idea regardless, because
it informs recipients of the work what their rights are, and enables
them to sanely to exercise the granted rights upon the work.
telling me that I can freely distribute the part that is Lua has no
value, since I can't actually do so (it's tucked away inside a
binary; if I want Lua, I'll go download the source).
The" value" it has is informing you that some part of that codebase is
"Lua" and that you can go download the source to "Lua" to get at that
part of the codebase... or, you can reverse engineer that portion of
the code to get back at "Lua"... or exercise any other right (useful
or not) that the MIT license gives you. [Most of this issue here is
just a straight forward problem with non-copyleft licenses...]
Post by Glenn Maynard
Also, due to license proliferation, different MIT-ish projects are
actually under a collection of slightly varying permissive licenses,
Yeah, the rest of this is really a problem with license promulgation,
which is something that modifying the MIT isn't going to help with at
all.


Don Armstrong
--
The solution to a problem changes the problem.
-- Peer's Law

http://www.donarmstrong.com http://rzlab.ucr.edu
Glenn Maynard
2005-06-04 02:25:23 UTC
Permalink
Post by Don Armstrong
Post by Glenn Maynard
telling me that I can freely distribute the part that is Lua has no
value, since I can't actually do so (it's tucked away inside a
binary; if I want Lua, I'll go download the source).
The" value" it has is informing you that some part of that codebase is
"Lua" and that you can go download the source to "Lua" to get at that
part of the codebase... or, you can reverse engineer that portion of
the code to get back at "Lua"... or exercise any other right (useful
or not) that the MIT license gives you. [Most of this issue here is
just a straight forward problem with non-copyleft licenses...]
You mean that the "problem" is that permissive licenses don't serve the
goals of a copyleft? They're not supposed to. The goal (or at least
one very common goal) of permissive licenses is to encourage free use
of code, and it's understandable that people with this philosophy don't
want to force people to include a useless license block, either.

Actually, nothing about the MIT license says anything about telling
people that you use a library, or that you can get it anywhere. A
copy of the Lua license is attached, just as an example: the word "Lua"
appears nowhere in the license. Including the license doesn't even give
any hint about Lua, unless you already know it exists!

You can't reverse-engineer that portion of the code to get back at "Lua",
because there's no way to tell which parts are Lua, which parts have had
copyrightable modifications applied which are not under Lua's license,
and which parts are entirely unrelated to Lua. I don't see any benefit
in twisting people's arms to put big blobs of text informing people that
it's theoretically legal to do something, when it's neither possible nor
useful in practice. Telling people this is just wasting their time.

(The warranty disclaimer is another issue, though.)
--
Glenn Maynard
Raul Miller
2005-06-05 23:08:23 UTC
Permalink
Post by Glenn Maynard
You mean that the "problem" is that permissive licenses don't serve the
goals of a copyleft? They're not supposed to. The goal (or at least
one very common goal) of permissive licenses is to encourage free use
of code, and it's understandable that people with this philosophy don't
want to force people to include a useless license block, either.
These two statements are at odds with each other. I think it's confusing
and misleading to claim otherwise.

Fundamentally, the goal of public domain is to allow arbtrary non-free
use of the material. And the same basic goal holds for near public-
domain licenses. This is why you see legal professionals in the field
of copyright warning people that public domain probably isn't what
they want.

Free use is also allowed. But if that was the crucial goal, the GPL would
be quiet adequate.
--
Raul
Glenn Maynard
2005-06-06 03:28:18 UTC
Permalink
Post by Raul Miller
Post by Glenn Maynard
You mean that the "problem" is that permissive licenses don't serve the
goals of a copyleft? They're not supposed to. The goal (or at least
one very common goal) of permissive licenses is to encourage free use
of code, and it's understandable that people with this philosophy don't
want to force people to include a useless license block, either.
These two statements are at odds with each other. I think it's confusing
and misleading to claim otherwise.
Sorry, I don't know which two statements you're referring to. A major goal
of copyleft is to guarantee that anyone that receives a binary both receives
the source, the ability to use it (eg. no additional restrictions), and
knowledge that they can do so. These aren't goals of permissive licenses,
and that's not a bug.
Post by Raul Miller
Fundamentally, the goal of public domain is to allow arbtrary non-free
use of the material. And the same basic goal holds for near public-
domain licenses. This is why you see legal professionals in the field
of copyright warning people that public domain probably isn't what
they want.
No disagreement here (except the implication that non-free use is the
only goal--the goal is free use everywhere, and non-free use is just
part of "everywhere"). Permissive licenses are close to public domain,
and reasons for using the two are similar.
Post by Raul Miller
Free use is also allowed. But if that was the crucial goal, the GPL would
be quiet adequate.
If you wish your code to be freely usable, in as many contexts and by as
many people as possible, the GPL isn't in the running. The GPL very
deliberately makes a trade: in exchange for less free use (eg. more
restrictions), it tries to encourage "giving code back to the commons"
and all that. GPL-licensed code is not usable, for example, in proprietary
software; or even in mostly-free programs that simply have a few GPL-
incompatible plugins for interoperability (eg. OpenSSL).

That's not a bug, of course; it's explicitly intended to discourage
proprietary development, and many people who use the GPL actively wish
to do so, and don't consider that restriction a problem. That's fine.
But people who don't wish to do so--who, in contrast, don't consider
proprietary use of code a problem, and wish to minimize political,
practical and legal barriers to reuse--often prefer permissive licenses.
If that's your philosophy, then you may well not want to force people
to include your 20-line license, either, since that can introduce
practical problems. (I'm not sure why this seems to be a controversial
statement; it seems self-evident to me.)
--
Glenn Maynard
Raul Miller
2005-06-07 22:33:38 UTC
Permalink
Post by Glenn Maynard
Post by Raul Miller
Fundamentally, the goal of public domain is to allow arbtrary non-free
use of the material. And the same basic goal holds for near public-
domain licenses. This is why you see legal professionals in the field
of copyright warning people that public domain probably isn't what
they want.
No disagreement here (except the implication that non-free use is the
only goal--the goal is free use everywhere, and non-free use is just
part of "everywhere"). Permissive licenses are close to public domain,
and reasons for using the two are similar.
Change "everywhere" to "allowed for every person, regardless of
the restrictions they then impose" and I'll agree with you.

"Everywhere" is rather silly -- there are many galaxies which will
never be graced with the presence of software package $FOO..

That said, both copyleft and public domain allow distribution to
any person. The distinction is the kind of restrictions which are
allowed in the context of that distribution. Public Domain allows
the receiver to impose arbitrary restrictions. Copyleft restricts
the receiver from imposing arbitrary restrictions.
Post by Glenn Maynard
If you wish your code to be freely usable, in as many contexts and by as
many people as possible, the GPL isn't in the running.
The accuracy of this statement depends on the specific number
you're trying to maximize.

If by "as many contexts and by as many people as possible" you
mean the product of context (measured as the number of restrictions
which apply) times the number of people, then you are correct.
Post by Glenn Maynard
The GPL very deliberately makes a trade: in exchange for less free
use (eg. more restrictions), it tries to encourage "giving code back
to the commons" and all that. GPL-licensed code is not usable, for
example, in proprietary software; or even in mostly-free programs
that simply have a few GPL-incompatible plugins for interoperability
(eg. OpenSSL).
This assumes that the restrictions imposed by OpenSSL would
stand up in court for software which has those plugins.

It also assumes that the authors of the GPLed content were
unaware that those restrictions would be imposed on their
software and that they object.
Post by Glenn Maynard
That's not a bug, of course; it's explicitly intended to discourage
proprietary development, and many people who use the GPL actively wish
to do so, and don't consider that restriction a problem. That's fine.
But people who don't wish to do so--who, in contrast, don't consider
proprietary use of code a problem, and wish to minimize political,
practical and legal barriers to reuse--often prefer permissive licenses.
If that's your philosophy, then you may well not want to force people
to include your 20-line license, either, since that can introduce
practical problems. (I'm not sure why this seems to be a controversial
statement; it seems self-evident to me.)
The situation here is that even though the legal properties of public
domain works seem self evident, in the general case they are not.

For example, there are cases where an author who has released
a work into the public domain may not be allowed to have a copy
of that work. [A problem here could be proving that the work was
put in the public domain and proving that the copy was obtained
legally. It might seem self evident that this would be trivial to
prove but in the general case it need not be -- especially if there
are many years involved where the detailed history of
that work gets lost.]

As long as people understand that that's a potential outcome for
the situation they're creating, I have no problem with people
releasing their work into the public domain. But I object to people
claiming that this kind situation is irrelevant.

If you're going to release things that you might later care about into
the public domain, you should probably make some effort to retain
documentation on the details of every such release. (And you
should probably also give people some way of proving that they
received legal copies of a public domain work from you.)

The same probably should hold for "near public domain" copyright
licenses.
--
Raul
Glenn Maynard
2005-06-07 23:25:29 UTC
Permalink
Post by Raul Miller
Post by Glenn Maynard
No disagreement here (except the implication that non-free use is the
only goal--the goal is free use everywhere, and non-free use is just
part of "everywhere"). Permissive licenses are close to public domain,
and reasons for using the two are similar.
Change "everywhere" to "allowed for every person, regardless of
the restrictions they then impose" and I'll agree with you.
"Everywhere" is rather silly -- there are many galaxies which will
never be graced with the presence of software package $FOO..
I'm missing the point of the word-nitpick. Permissive licenses try to
minimize the obstacles they present to reusing code.
Post by Raul Miller
That said, both copyleft and public domain allow distribution to
any person. The distinction is the kind of restrictions which are
allowed in the context of that distribution. Public Domain allows
the receiver to impose arbitrary restrictions. Copyleft restricts
the receiver from imposing arbitrary restrictions.
By imposing restrictions itself, which make the code impossible to use
in many projects, ranging from simple GPL-incompatible projects to
outright proprietary ones.

(Hmm. That sounds a little inflammatory, but isn't intended to be; it's
intended only as a statement of fact, acknowledging the trade the GPL
makes.)
Post by Raul Miller
Post by Glenn Maynard
The GPL very deliberately makes a trade: in exchange for less free
use (eg. more restrictions), it tries to encourage "giving code back
to the commons" and all that. GPL-licensed code is not usable, for
example, in proprietary software; or even in mostly-free programs
that simply have a few GPL-incompatible plugins for interoperability
(eg. OpenSSL).
It also assumes that the authors of the GPLed content were
unaware that those restrictions would be imposed on their
software and that they object.
Er, so you're saying GPL-licensed code is usable in GPL-incompatible
programs, as long as you think the authors won't object? I'm pretty sure
you don't think that, so I assume I'm misunderstanding something.
Post by Raul Miller
Post by Glenn Maynard
That's not a bug, of course; it's explicitly intended to discourage
proprietary development, and many people who use the GPL actively wish
to do so, and don't consider that restriction a problem. That's fine.
But people who don't wish to do so--who, in contrast, don't consider
proprietary use of code a problem, and wish to minimize political,
practical and legal barriers to reuse--often prefer permissive licenses.
If that's your philosophy, then you may well not want to force people
to include your 20-line license, either, since that can introduce
practical problems. (I'm not sure why this seems to be a controversial
statement; it seems self-evident to me.)
The situation here is that even though the legal properties of public
domain works seem self evident, in the general case they are not.
I'm a little confused. The subthread was about the costs, benefits and
rationale of including a clause that says "this license must be preserved
on all copies", which shows up in the *-BSD and X11 licenses. Not that I
mind tangenting to other relevant topics, I'm just not sure how we got
there. :)
Post by Raul Miller
For example, there are cases where an author who has released
a work into the public domain may not be allowed to have a copy
of that work.
Do you mean that it's possible that an author might claim to release a
work into the public domain, but not actually have the right to do so
(eg. contractually)? That's true, but is true of all licenses ...
--
Glenn Maynard
Raul Miller
2005-06-08 04:52:38 UTC
Permalink
Post by Glenn Maynard
Post by Raul Miller
Post by Glenn Maynard
No disagreement here (except the implication that non-free use is the
only goal--the goal is free use everywhere, and non-free use is just
part of "everywhere"). Permissive licenses are close to public domain,
and reasons for using the two are similar.
Change "everywhere" to "allowed for every person, regardless of
the restrictions they then impose" and I'll agree with you.
"Everywhere" is rather silly -- there are many galaxies which will
never be graced with the presence of software package $FOO..
I'm missing the point of the word-nitpick. Permissive licenses try to
minimize the obstacles they present to reusing code.
You're focussing on a particular class of obstacle and ignoring another
class.

If you want to talk about minimizing, you really need to specify in
unambiguous terms the metric which is being minimized.

Put differently, not all obstacles are equivalent.

You seem to be trying to talk about this in an impartial manner,
but as long as you talk in terms of "minimizing all obstacles"
you're not doing so.
Post by Glenn Maynard
Post by Raul Miller
Post by Glenn Maynard
The GPL very deliberately makes a trade: in exchange for less free
use (eg. more restrictions), it tries to encourage "giving code back
to the commons" and all that. GPL-licensed code is not usable, for
example, in proprietary software; or even in mostly-free programs
that simply have a few GPL-incompatible plugins for interoperability
(eg. OpenSSL).
It also assumes that the authors of the GPLed content were
unaware that those restrictions would be imposed on their
software and that they object.
Er, so you're saying GPL-licensed code is usable in GPL-incompatible
programs, as long as you think the authors won't object? I'm pretty sure
you don't think that, so I assume I'm misunderstanding something.
Where the authors declare this intention openly, and unambiguously,
that's exactly what I mean.

There are other edge cases, but they're not as interesting.
Post by Glenn Maynard
Post by Raul Miller
Post by Glenn Maynard
That's not a bug, of course; it's explicitly intended to discourage
proprietary development, and many people who use the GPL actively wish
to do so, and don't consider that restriction a problem. That's fine.
But people who don't wish to do so--who, in contrast, don't consider
proprietary use of code a problem, and wish to minimize political,
practical and legal barriers to reuse--often prefer permissive
licenses.
Post by Raul Miller
Post by Glenn Maynard
If that's your philosophy, then you may well not want to force people
to include your 20-line license, either, since that can introduce
practical problems. (I'm not sure why this seems to be a controversial
statement; it seems self-evident to me.)
The situation here is that even though the legal properties of public
domain works seem self evident, in the general case they are not.
I'm a little confused. The subthread was about the costs, benefits and
rationale of including a clause that says "this license must be preserved
on all copies", which shows up in the *-BSD and X11 licenses. Not that I
mind tangenting to other relevant topics, I'm just not sure how we got
there. :)
We got here because of statements drawing analogies between those
licenses and public domain licenses, and because of statements indicating
that public domain or near public domain licenses were the goal.

Also, because the specific example most recently posted in this
thread included explicit relicening permission.
Post by Glenn Maynard
Post by Raul Miller
For example, there are cases where an author who has released
a work into the public domain may not be allowed to have a copy
of that work.
Do you mean that it's possible that an author might claim to release a
work into the public domain, but not actually have the right to do so
(eg. contractually)? That's true, but is true of all licenses ...
No. Though I'll agree that that's also a possibility.

I gave more detail on this issue in the message you are quoting.
--
Raul
Glenn Maynard
2005-06-08 05:28:17 UTC
Permalink
Post by Raul Miller
You seem to be trying to talk about this in an impartial manner,
but as long as you talk in terms of "minimizing all obstacles"
you're not doing so.
The GPL deliberately places obstacles to code reuse: it disallows reuse by
projects that don't release every bit of linked code (more or less) under
a GPL-compatible license, in the hope of increasing code reuse in the long
term. I believe that to be a simple, obvious statement of fact, and not one
that anyone should be offended by: the GPL restricts use of code, to use
free software as an incentive for other authors to place their own works
under GPL-compatible licenses.

I'll readily acknowledge myself preferring permissive licenses, and I'm
trying to be "impartial" enough to keep the thread from degenerating into
an argument of philosophies (or semantics), though I don't claim that my
opinion doesn't color my speech despite my efforts. My main interest in
the thread was explaining how even the minor restrictions of the MIT license
can be cumbersome, and why a person using permissive licenses might reasonable
want something less restrictive.
Post by Raul Miller
Post by Glenn Maynard
Er, so you're saying GPL-licensed code is usable in GPL-incompatible
programs, as long as you think the authors won't object? I'm pretty sure
you don't think that, so I assume I'm misunderstanding something.
Where the authors declare this intention openly, and unambiguously,
that's exactly what I mean.
If they give an explicit licensing exception, and understand how that
interacts with other GPL-licensed code, sure. Not in the general case.
Post by Raul Miller
Post by Glenn Maynard
Do you mean that it's possible that an author might claim to release a
work into the public domain, but not actually have the right to do so
(eg. contractually)? That's true, but is true of all licenses ...
No. Though I'll agree that that's also a possibility.
I gave more detail on this issue in the message you are quoting.
I read the message, didn't quite understand what you were describing, took a
guess and asked if that's what you meant. Saying "no, read the message again"
when your point didn't come across is very rarely helpful. :)
--
Glenn Maynard
Michael K. Edwards
2005-06-08 07:59:23 UTC
Permalink
Post by Glenn Maynard
The GPL deliberately places obstacles to code reuse: it disallows reuse by
projects that don't release every bit of linked code (more or less) under
a GPL-compatible license, in the hope of increasing code reuse in the long
term. I believe that to be a simple, obvious statement of fact, and not one
that anyone should be offended by: the GPL restricts use of code, to use
free software as an incentive for other authors to place their own works
under GPL-compatible licenses.
The GPL's drafters profess to believe this statement about the GPL and
linked code; but it is not true under US law as I understand it, and
other debian-legal contributors with actual legal qualifications in
civil law countries have agreed as regards their jurisdictions.
IANAL, but I can back this assertion up with case law out the
yin-yang. My essay on this topic is rather long, is still in draft,
and might find a more formal publication channel, so I'm disinclined
to post it to d-l at this time; but anyone who would like a copy for
private review need but ask, as long as they agree not to "publish"
it.

Cheers,
- Michael
Glenn Maynard
2005-06-08 08:17:32 UTC
Permalink
Post by Michael K. Edwards
Post by Glenn Maynard
The GPL deliberately places obstacles to code reuse: it disallows reuse by
projects that don't release every bit of linked code (more or less) under
a GPL-compatible license, in the hope of increasing code reuse in the long
term. I believe that to be a simple, obvious statement of fact, and not one
that anyone should be offended by: the GPL restricts use of code, to use
free software as an incentive for other authors to place their own works
under GPL-compatible licenses.
The GPL's drafters profess to believe this statement about the GPL and
linked code; but it is not true under US law as I understand it, and
Even if your claims are true, it would still require going to court to prove,
and until somebody successfully does that, very few people are going to go
against the FSF's claims. So, as a matter of actual practice, my statement
stands.
Post by Michael K. Edwards
yin-yang. My essay on this topic is rather long, is still in draft,
and might find a more formal publication channel, so I'm disinclined
Slashdot?

(Sorry, that was low. :)
--
Glenn Maynard
Michael K. Edwards
2005-06-08 10:18:07 UTC
Permalink
Post by Glenn Maynard
Even if your claims are true, it would still require going to court to prove,
and until somebody successfully does that, very few people are going to go
against the FSF's claims. So, as a matter of actual practice, my statement
stands.
Agreed. It'll be interesting to see whether this is addressed in the
course of Wallace v. FSF.
Post by Glenn Maynard
Post by Michael K. Edwards
yin-yang. My essay on this topic is rather long, is still in draft,
and might find a more formal publication channel, so I'm disinclined
Slashdot?
(Sorry, that was low. :)
Pretty funny, though. ;) But actually, a lawyer of my acquaintance
suggested that I consider submitting it to a law journal if it passes
his review, which I found rather flattering (if improbable). 33 pages
(with wide margins) is a little bit long even for /., though there's
certainly room to cut some fat.

Cheers,
- Michael
Raul Miller
2005-06-12 00:53:39 UTC
Permalink
Post by Glenn Maynard
Post by Raul Miller
You seem to be trying to talk about this in an impartial manner,
but as long as you talk in terms of "minimizing all obstacles"
you're not doing so.
The GPL deliberately places obstacles to code reuse: it disallows reuse by
projects that don't release every bit of linked code (more or less) under
a GPL-compatible license, in the hope of increasing code reuse in the long
term.
Agreed: it disallows reuse by one person in contexts where that person asserts
a right to restrict reuse by other people.
Post by Glenn Maynard
I believe that to be a simple, obvious statement of fact, and not
one that anyone should be offended by: the GPL restricts use of code, to use
free software as an incentive for other authors to place their own works
under GPL-compatible licenses.
I certainly agree that the GPL does not eliminate all obstacles.

One point is that elimnating all obstacles to reuse is impossible under a
legal system which allows people to impose obstacles for reuse.

You can't minimize "all obstacles', you need to choose decide what
kinds of obstacles you care about and which you wish to do without.
Post by Glenn Maynard
I'll readily acknowledge myself preferring permissive licenses, and I'm
trying to be "impartial" enough to keep the thread from degenerating into
an argument of philosophies (or semantics), though I don't claim that my
opinion doesn't color my speech despite my efforts.
I think that if you avoided the use of universal quantifiers I wouldn't
have objected to how you phrased things.
Post by Glenn Maynard
My main interest in the thread was explaining how even the minor restrictions
of the MIT license can be cumbersome, and why a person using permissive
licenses might reasonable want something less restrictive.
It's certainly the case that each person brings to bear their own value
system, which results in different people making very different decisions
even though they might appear to agree when expressing why they would
make their decisions the way they do.
Post by Glenn Maynard
Post by Raul Miller
Post by Glenn Maynard
Do you mean that it's possible that an author might claim to release a
work into the public domain, but not actually have the right to do so
(eg. contractually)? That's true, but is true of all licenses ...
No. Though I'll agree that that's also a possibility.
I gave more detail on this issue in the message you are quoting.
I read the message, didn't quite understand what you were describing, took
a guess and asked if that's what you meant. Saying "no, read the message
again" when your point didn't come across is very rarely helpful. :)
If a work has been put into the public domain it's possible that the evidence
that this was the case will have been lost. This is probably not a problem for
works that get wide exposure, but not all works get wide exposure

If the work has been incorporated into some other copyrighted material,
perhaps in conjunction with some work-for-hire, the result could be rather
complicated, legally.

Other possibilities probably exist.

In general, good documentation on matters which are legally important
is good practice.
--
Raul
Anthony DeRobertis
2005-06-03 23:33:31 UTC
Permalink
Post by Don Armstrong
First of, please use your real name when discussing things upon this
list. Anonymity makes it rather difficult for others to follow your
arguments, and interferes with the primary mission of debian-legal.
I'd say to at least use a reasonably unique pseudonym if you wish to
remain anonymous. You might find debian's "rig" package useful for this.
Francesco Poli
2005-06-09 00:03:14 UTC
Permalink
Post by Don Armstrong
First of, please use your real name when discussing things upon this
list. Anonymity makes it rather difficult for others to follow your
arguments, and interferes with the primary mission of debian-legal.
I already stated my humble opinion with respect to this issue.
The one you're referring to is not real anonymity: it looks like a
hotmail account and a use of a newsreader to send a message through
Gmane (IIUC).
Real anonymity is achieved by using specific tools (such as anonymous
remailers).

Moreover I fail to see anything wrong in sending an actually anonymous
message to debian-legal (through a chain of anonymous remailers) and
then anonymously browsing replies on the web archive (through an onion
routing network, such as Tor).
--
:-( This Universe is buggy! Where's the Creator's BTS? ;-)
......................................................................
Francesco Poli GnuPG Key ID = DD6DFCF4
Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4
Mahesh T. Pai
2005-06-04 07:30:27 UTC
Permalink
well understood. Therefore in an attempt to satify all parties I
propose the following licence for use in those types of situations.
The licence I propose consists of the MIT licence below, excluding
the part in the quare brackets. This licence therefore is well
understood, and does not have the single restriction of the MIT
licence.
(snip)
Licence taken from http://www.opensource.org/licenses/mit-license.php
It is better you discuss this with opensource.org's licensediscuss
list. They may suggest you another license which meets your needs
without proliferation.
--
Mahesh T. Pai <==> paivakil.port5.com
-------------------------------------------
Free as in Freedom
Anonymous
2005-06-06 16:33:43 UTC
Permalink
Post by Mahesh T. Pai
It is better you discuss this with opensource.org's licensediscuss
list. They may suggest you another license which meets your needs
without proliferation.
Perhaps I was not clear that I do not intend to use this licence. I have
noted that there have been at least ten requests for a licence that has for
all intents and purposes no restrictions. a public domain licence. I was
just offering such a licence.
If you don't belive me that may people have requested such a licence look up
these message ids:
***@localhost.localdomain
***@coredump.intra.peff.net
Jeff King
2005-06-06 17:04:39 UTC
Permalink
Post by Anonymous
Perhaps I was not clear that I do not intend to use this licence. I have
noted that there have been at least ten requests for a licence that has for
all intents and purposes no restrictions. a public domain licence. I was
just offering such a licence.
If you don't belive me that may people have requested such a licence look
The latter message is from me. I am looking for such a license, as I am
trying to avoid ridiculous license propagation. My ideal license would
be in one of two forms:
- a common PD-ish license for which users can say "Oh, the PD license"
and know what it means (as we do now for the BSD, MIT, and GPL
licenses)
- a license so short that one can look at it and know what it means
(e.g., "X is dedicated to the public domain", "X may be
redistributed in any form without restriction").

The consensus I seem to read from debian-legal is that the second type
can't exist, because we have to list everything explicitly or our evil
heirs can revoke it.

-Peff
astronut
2005-06-06 17:38:24 UTC
Permalink
*This message was transferred with a trial version of CommuniGate(tm) Pro*
Post by Jeff King
The latter message is from me. I am looking for such a license, as I am
trying to avoid ridiculous license propagation. My ideal license would
- a common PD-ish license for which users can say "Oh, the PD license"
and know what it means (as we do now for the BSD, MIT, and GPL
licenses)
- a license so short that one can look at it and know what it means
(e.g., "X is dedicated to the public domain", "X may be
redistributed in any form without restriction").
The consensus I seem to read from debian-legal is that the second type
can't exist, because we have to list everything explicitly or our evil
heirs can revoke it.
-Peff
I am probably wrong here, since I joined the list in the middle of the
discussion, but can't you just put a notice at the top of the code like
this?

/* This code was written by <name> and is hereby released into the
public domain */
Andrew M.A. Cater
2005-06-06 19:57:47 UTC
Permalink
Post by astronut
*This message was transferred with a trial version of CommuniGate(tm) Pro*
Post by Jeff King
The latter message is from me. I am looking for such a license, as I am
trying to avoid ridiculous license propagation. My ideal license would
- a common PD-ish license for which users can say "Oh, the PD license"
and know what it means (as we do now for the BSD, MIT, and GPL
licenses)
- a license so short that one can look at it and know what it means
(e.g., "X is dedicated to the public domain", "X may be
redistributed in any form without restriction").
The consensus I seem to read from debian-legal is that the second type
can't exist, because we have to list everything explicitly or our evil
heirs can revoke it.
-Peff
I am probably wrong here, since I joined the list in the middle of the
discussion, but can't you just put a notice at the top of the code like
this?
/* This code was written by <name> and is hereby released into the
public domain */
What's "the public domain" in the context of UK / European law?

[If it exists validly in the UK, for example, how is it to be interpreted
if there is a conflict in definition with European Community law?]

"Public Domain" appears to many to be US-centric: better, by far,
to have a crack at _some_ kind of licence.

It is useful to have explicit permission to use freely for
commercial/governmental/not for profit and personal and private use
for example.

Permission to modify or distribute in other forms is also useful as is
explicit permission to sell or distribute as part of other media or to
use the information in derivative works.

All of the above could reasonably be either inferred or denied depending
on how you read or interpret everything between /* and */
Post by astronut
--
Jeff King
2005-06-06 20:50:52 UTC
Permalink
Post by Andrew M.A. Cater
What's "the public domain" in the context of UK / European law?
I don't know, as I am neither a lawyer nor a European. However, I assume
there is some concept of a work which has passed out of copyright (due
to time limitations). What is that called? What are the rights of
individuals with respect to that work?
Post by Andrew M.A. Cater
It is useful to have explicit permission to use freely for
commercial/governmental/not for profit and personal and private use
for example.
Is use actually restricted by copyright? If you receive a copy of
software lawfully, are you not free to copy, run, modify, or
reverse-engineer it? See the 1991 European Software Directive, for
example.

-Peff
Måns Rullgård
2005-06-06 20:01:44 UTC
Permalink
Post by astronut
I am probably wrong here, since I joined the list in the middle of the
discussion, but can't you just put a notice at the top of the code like
this?
/* This code was written by <name> and is hereby released into the
public domain */
There are supposedly jurisdictions where the concept of public domain
does not exist, and such a statement would have no meaning. In these
jurisdictions, the usual copyright law rules would apply, prohibiting
anything resembling free use of the software.
--
Måns Rullgård
***@inprovide.com
--
To UNSUBSCRIBE, email to debian-legal-***@lists.debian.org
with a subject of "unsubscribe". Trouble? Contact ***@lists.debian.org
Arnoud Engelfriet
2005-06-06 20:24:51 UTC
Permalink
Post by Måns Rullgård
Post by astronut
I am probably wrong here, since I joined the list in the middle of the
discussion, but can't you just put a notice at the top of the code like
this?
/* This code was written by <name> and is hereby released into the
public domain */
There are supposedly jurisdictions where the concept of public domain
does not exist, and such a statement would have no meaning.
The Netherlands is one. Well, we do have a public domain, but it
only contains works that by law have no copyright and works whose
copyright has expired.

_Probably_ a Dutch judge would treat the above statement as a
license that means "do whatever you want", since he's supposed to
reconstruct the intention of the author from such a vague statement.
And "do whatever you want" seems the intention.

But would <name> ever bring a lawsuit asserting copyright infringement?

(Well, maybe if his moral rights were infringed but he can't give
those up anyway)

Arnoud
--
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Jeff King
2005-06-06 20:58:53 UTC
Permalink
Post by Arnoud Engelfriet
The Netherlands is one. Well, we do have a public domain, but it
only contains works that by law have no copyright and works whose
copyright has expired.
So what's wrong with a license like:
You may do anything with this work that you would with a work in the
public domain.
Post by Arnoud Engelfriet
_Probably_ a Dutch judge would treat the above statement as a
license that means "do whatever you want", since he's supposed to
reconstruct the intention of the author from such a vague statement.
And "do whatever you want" seems the intention.
Yes, it is the intention. How about a license like:
Do whatever you want.
The only argument I have heard against this is that you (or your heirs)
may later say "Oh, but I didn't really mean *anything*." Which seems
silly to me, but perhaps that's why I'm a programmer and not a
lawyer. Is there a legal way to say "No, really, ANYTHING" without
resorting to listing all of the things (which can get quite long)?
Post by Arnoud Engelfriet
But would <name> ever bring a lawsuit asserting copyright infringement?
It seems like it's not possible to prevent the author from bringing a
suit at all (even with a public domain dedication). However, you can
ideally make the suit trivially lose-able with a sufficient license.

-Peff
Antti-Juhani Kaijanaho
2005-06-07 09:26:08 UTC
Permalink
Post by Jeff King
You may do anything with this work that you would with a work in the
public domain.
I have occasionally used the following notice:

Written by Antti-Juhani Kaijanaho. You may treat this file as if it
were in the public domain.
--
Antti-Juhani Kaijanaho, Debian developer

http://kaijanaho.info/antti-juhani/blog/en/debian
Andrew Suffield
2005-06-07 13:47:28 UTC
Permalink
Post by Jeff King
Post by Arnoud Engelfriet
_Probably_ a Dutch judge would treat the above statement as a
license that means "do whatever you want", since he's supposed to
reconstruct the intention of the author from such a vague statement.
And "do whatever you want" seems the intention.
Do whatever you want.
The only argument I have heard against this is that you (or your heirs)
may later say "Oh, but I didn't really mean *anything*." Which seems
silly to me, but perhaps that's why I'm a programmer and not a
lawyer.
Lawyers are pretty silly people, yes.
--
.''`. ** Debian GNU/Linux ** | Andrew Suffield
: :' : http://www.debian.org/ |
`. `' |
`- -><- |
Sean Kellogg
2005-06-07 21:36:27 UTC
Permalink
Post by Andrew Suffield
Post by Jeff King
Post by Arnoud Engelfriet
_Probably_ a Dutch judge would treat the above statement as a
license that means "do whatever you want", since he's supposed to
reconstruct the intention of the author from such a vague statement.
And "do whatever you want" seems the intention.
Do whatever you want.
The only argument I have heard against this is that you (or your heirs)
may later say "Oh, but I didn't really mean *anything*." Which seems
silly to me, but perhaps that's why I'm a programmer and not a
lawyer.
Lawyers are pretty silly people, yes.
Perhaps lawyers are silly, but I think the law is getting a bad rap in this
conversation. The issue is not with "evil heirs" but with termination rights
and market forces. Consider for a moment a budding artist who writes a
really great song. Since she's unknown she has to distribute it through a
label, who has all of the market power in the deal. The result of the deal is
she is poorly compensated. The song goes on to be a humongous hit and the
record label makes a ton of money while our poor artist remains pennyless.

To resolve this sad and not uncommon story, Congress granted the copyright
holders an inalienable termination right which allows the author to revoke a
license or assignment 35 years after the transfer (its a 5 year window after
35, so at 40 the chance to terminate expires). Which means that if the
evil record label wants to continue to make money from the song it has to
renegotiate the terms with the author or her heirs... presumably the
popularity of the song puts the author in a much better position, market
power wise, and will net the author a better deal than the first time 'round.

Note that this right is inalienable... under no circumstances can the author
give away or renounce the right. The reason is the same policy as above.
If the author could sell the termination right, then the evil record label
would require such a sale and still give the same lower level of
compensation. By making in inalienable, the law ensures the author cannot be
dooped into doing something foolish for a short-term benefit.

Of course, this means that it is practically impossible to put something into
the public domain prior to the expiration of the copyright. You really can't
even wait 35 years after you release the software, because its 35 years from
the grant... and since you can't grant the software to "the public" you
would have to wait 35 years with each particular individual before their
license becomes truly irrevocable.

Certainly it is frustrating, but I think there are sound policy reasons behind
the law.

-Sean
--
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
c: 206.498.8207    e: ***@u.washington.edu
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown
Glenn Maynard
2005-06-07 21:49:52 UTC
Permalink
Post by Sean Kellogg
To resolve this sad and not uncommon story, Congress granted the copyright
holders an inalienable termination right which allows the author to revoke a
In other words, "for their own good", Congress removed people's right to
license their own creations however they see fit; they restricted freedom
to "preserve it". And as expected, it backfires as soon as an unexpected
situation arises--such as people honestly wanting to give their creation
to the world, for free, guaranteeing that the work will always remain
under those terms.
Post by Sean Kellogg
Certainly it is frustrating, but I think there are sound policy reasons behind
the law.
I disagree strongly. It's restricting what I can do with my own works,
denying me the basic right to give it away for free, without the threat
of revocation down the line.
--
Glenn Maynard
Sean Kellogg
2005-06-07 23:48:57 UTC
Permalink
Post by Glenn Maynard
Post by Sean Kellogg
To resolve this sad and not uncommon story, Congress granted the
copyright holders an inalienable termination right which allows the
author to revoke a
In other words, "for their own good", Congress removed people's right to
license their own creations however they see fit; they restricted freedom
to "preserve it". And as expected, it backfires as soon as an unexpected
situation arises--such as people honestly wanting to give their creation
to the world, for free, guaranteeing that the work will always remain
under those terms.
Yes... because SO many works are released directly into the Public Domain...
foolish Congress, protecting the rights of the many over the obscure wishes
of the few. If you really want to ensure your works stay forever free, then
make sure you teach your mate and offspring (the only folks who can exercise
your termination right other than yourself) the value of your decisions.

I like the Public Domain, don't get me wrong... but I dislike strong armed
corporations more, so I think the balance struck by Congress works pretty
well.
Post by Glenn Maynard
Post by Sean Kellogg
Certainly it is frustrating, but I think there are sound policy reasons
behind the law.
I disagree strongly. It's restricting what I can do with my own works,
denying me the basic right to give it away for free, without the threat
of revocation down the line.
You sound like a corporate lawyer... they would love nothing more than for
the freedom of contract to be absolute. Imagine situations where you sign
away 1st amendment speech rights to get a job, or maybe whistle-blower
protections. Oh yes, it would truly be a brave new world if your way of
thinking ruled the day.

-Sean
Glenn Maynard
2005-06-07 23:55:08 UTC
Permalink
Post by Sean Kellogg
Post by Glenn Maynard
In other words, "for their own good", Congress removed people's right to
license their own creations however they see fit; they restricted freedom
to "preserve it". And as expected, it backfires as soon as an unexpected
situation arises--such as people honestly wanting to give their creation
to the world, for free, guaranteeing that the work will always remain
under those terms.
Yes... because SO many works are released directly into the Public Domain...
Lots of works are placed under permissive licenses.
Post by Sean Kellogg
You sound like a corporate lawyer... they would love nothing more than for
the freedom of contract to be absolute. Imagine situations where you sign
away 1st amendment speech rights to get a job, or maybe whistle-blower
protections. Oh yes, it would truly be a brave new world if your way of
thinking ruled the day.
Or your way of thinking: "give up freedom to protect freedom". Right.
Brave new world.
--
Glenn Maynard
Jeff King
2005-06-08 01:21:02 UTC
Permalink
Post by Sean Kellogg
Yes... because SO many works are released directly into the Public Domain...
I have been on this list for about 6 weeks, and I have seen no less than
three active threads regarding public domain licenses. A minority,
perhaps, but certainly there are people interested in this.
Post by Sean Kellogg
wishes of the few. If you really want to ensure your works stay
forever free, then make sure you teach your mate and offspring (the
only folks who can exercise your termination right other than
yourself) the value of your decisions.
I'm not worried about my works staying free. I'm worried about people
who want to use my works being sure that my works will stay free.
Post by Sean Kellogg
I like the Public Domain, don't get me wrong... but I dislike strong
armed corporations more, so I think the balance struck by Congress
works pretty well.
Well, clearly I don't. :) The root cause of this problem is Congress,
not an inherent balance. I don't *want* to license my work to a
corporation in an irrevocable way. I want to put it in the public domain
in an irrevocable way. But because there's no explicit way to do that
(and I must fake my way through by using an extremely permissive
license), both cases fall under the same category.

With well-written legislation, they don't need to.
Post by Sean Kellogg
You sound like a corporate lawyer... they would love nothing more than for
the freedom of contract to be absolute. Imagine situations where you sign
Now you're just being mean. I happen to agree completely with Glenn's
statements. I'm not only not a corporate lawyer, but am spending
considerable effort trying to figure out how in the world to just give
away intellectual works which I have created on my own time. I'm sorry
if that seems cold-hearted and corporate to you.

-Peff
Sean Kellogg
2005-06-08 01:46:06 UTC
Permalink
Post by Jeff King
Post by Sean Kellogg
Yes... because SO many works are released directly into the Public Domain...
I have been on this list for about 6 weeks, and I have seen no less than
three active threads regarding public domain licenses. A minority,
perhaps, but certainly there are people interested in this.
Oh, its true.. debian-legal sees lots of traffic on this topic. Its actually
really amazing when you think about it. I think it would be really
interesting to do a study on who is doing free software development and what
kind of licenses they are using. Is the GPL losing ground?! Based on
debian-legal traffic, it would sure seem so... but I think that's because
most questions about the GPL have long been answered. Would be interesting
to know... the GPL 3.0 drafters should would love to know.
Post by Jeff King
Post by Sean Kellogg
wishes of the few. If you really want to ensure your works stay
forever free, then make sure you teach your mate and offspring (the
only folks who can exercise your termination right other than
yourself) the value of your decisions.
I'm not worried about my works staying free. I'm worried about people
who want to use my works being sure that my works will stay free.
Its a reasonable concern... but think about the movie industry. I make a
movie and license a "I Write the Songs" from Barry Manilow. Movie is a total
failure in the box office, perhaps because it features a song by Barry
Manilow, and falls into obscurity. 34 years late the movie is discovered and
becomes a total cult classic with millions of back order copies. I go to
have millions of copies made up for sale when I get a call from Manilow's
heirs... they don't like the movie, are exercising their termination rights,
and refuse to license back to me. That's it... I'm done, shows over.

Even this story of a hard working corporation just trying to make good movies
failed to convince Congress to remove the termination provision.
Post by Jeff King
Post by Sean Kellogg
I like the Public Domain, don't get me wrong... but I dislike strong
armed corporations more, so I think the balance struck by Congress
works pretty well.
Well, clearly I don't. :) The root cause of this problem is Congress,
not an inherent balance. I don't *want* to license my work to a
corporation in an irrevocable way. I want to put it in the public domain
in an irrevocable way. But because there's no explicit way to do that
(and I must fake my way through by using an extremely permissive
license), both cases fall under the same category.
With well-written legislation, they don't need to.
Thankfully the Copyright Act is not set in stone, and with efforts like iPAC
and CDC, copyright reform will eventually come. I doubt its going spell the
end of copyrights as perhaps the FSF may want, but what it might do is write
in some specific sections that provide statutory muscle to licenses like the
GPL.

I hope that when that reform comes, Congress seriously considers a definitive
way to put works (copyright and patent) into the public domain. As I see it,
the availability of a clear PD dedication method shouldn't interfere with the
termination policy, since anything short of a pure PD dedication would remain
subject to termination. It seems doubtful that a record label will accept an
artist putting a work into the PD just to avoid a termination rights dispute
35 years down the road.
Post by Jeff King
Post by Sean Kellogg
You sound like a corporate lawyer... they would love nothing more than
for the freedom of contract to be absolute. Imagine situations where you
sign
Now you're just being mean. I happen to agree completely with Glenn's
statements. I'm not only not a corporate lawyer, but am spending
considerable effort trying to figure out how in the world to just give
away intellectual works which I have created on my own time. I'm sorry
if that seems cold-hearted and corporate to you.
I'm really not trying to be mean. These are the sorts of disputes I have
everyday in law school. Lawyers LOVE the idea of the freedom to contract.
People who understand the world around them, have all the facts, and the
ability to walk away should want an absolute right to contract. But I
believe the law has a responsibility to those who can't always look out for
themselves, who need protection from those who would take advantage of them
or deny them their rights under the law. Its a fine balance, its not an easy
one to achieve, and its the stuff of many a judicial opinion and law review
article.

If you can articulate a clear policy that meets both objectives, I know 9
people in black robes in DC who would love to hear it.

-Sean
Andrew Suffield
2005-06-08 18:18:43 UTC
Permalink
Post by Sean Kellogg
If you really want to ensure your works stay forever free, then
make sure you teach your mate and offspring (the only folks who can exercise
your termination right other than yourself) the value of your decisions.
The primary threat is not from the heirs (although that is a threat,
and you don't have control over all your heirs - your parents and
cousins can qualify), it's from litigious corporations who come and
take the copyright away from you using lawyer-strongarm tactics. This
happens *all the time*. It just happened to 'DVD Decrypter' the other
week.
--
.''`. ** Debian GNU/Linux ** | Andrew Suffield
: :' : http://www.debian.org/ |
`. `' |
`- -><- |
Anthony DeRobertis
2005-06-10 06:10:41 UTC
Permalink
Post by Andrew Suffield
The primary threat is not from the heirs (although that is a threat,
and you don't have control over all your heirs - your parents and
cousins can qualify),
If you're worried about your heirs revoking your copyright licences, I
suggest talking to the FSF or someone like them; you could make the FSF
the heir to your copyrights.
Sean Kellogg
2005-06-10 07:50:03 UTC
Permalink
Post by Anthony DeRobertis
Post by Andrew Suffield
The primary threat is not from the heirs (although that is a threat,
and you don't have control over all your heirs - your parents and
cousins can qualify),
If you're worried about your heirs revoking your copyright licences, I
suggest talking to the FSF or someone like them; you could make the FSF
the heir to your copyrights.
No, your parents and cousins CANNOT qualify, blood relation is not enough
under the statute. The right of termination flows from you, to your spouse,
then to your children, and final to your estate's executor. You can transfer
the copyright to others beyond that chain, but the termination right remains
with the others.

So, if I will my copyright to Frank, my 3rd cousin, who then licenses it to
MGM, either my spouse or children can still exercise their termination right
over that license (but not the transfer to Frank... since transferring the
copyright by will is not susceptible to termination).

-Sean
--
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown
Andrew Suffield
2005-06-10 18:24:34 UTC
Permalink
Post by Sean Kellogg
Post by Anthony DeRobertis
Post by Andrew Suffield
The primary threat is not from the heirs (although that is a threat,
and you don't have control over all your heirs - your parents and
cousins can qualify),
If you're worried about your heirs revoking your copyright licences, I
suggest talking to the FSF or someone like them; you could make the FSF
the heir to your copyrights.
No, your parents and cousins CANNOT qualify, blood relation is not enough
under the statute. The right of termination flows from you, to your spouse,
then to your children, and final to your estate's executor.
Sounds like a US perversion to me. I doubt many places have weird laws
that override normal inheritance law.
--
.''`. ** Debian GNU/Linux ** | Andrew Suffield
: :' : http://www.debian.org/ |
`. `' |
`- -><- |
Sean Kellogg
2005-06-10 18:35:55 UTC
Permalink
Post by Andrew Suffield
Post by Sean Kellogg
No, your parents and cousins CANNOT qualify, blood relation is not enough
under the statute. The right of termination flows from you, to your
spouse, then to your children, and final to your estate's executor.
Sounds like a US perversion to me. I doubt many places have weird laws
that override normal inheritance law.
Normal inheritance law?! That's the understatement of the day. After taking
Wills, Trusts, and Estates I am of the complete opinion that there is no such
thing as "normal inheritance law." The issues lies with competing policy
objectives: 1) keeping with the intent of the dead, 2) providing for the
dead's dependents. If the dead gives all of their money to someone other
than their dependents, then someone else has got to provide for those
dependents... and that someone often becomes the State. Since inheritance
is not a natural property right, but a legal construction of the State
itself, it is well within the State's right to dictate that certain portions
of your estate MUST transfer to your dependants. To hold otherwise would
allow the deceased to abandon their dependents and make the rest of society
pay, all to the benefit of their non-dependent beneficiary.

I'll tell ya, they teach Copyrights in a 3 credit course and its probably too
many credits... they teach Wills, Trusts, and Estates in a 5 credit course
and its not nearly enough time to cover everything.

-Sean
--
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown
Jeff King
2005-06-08 01:10:42 UTC
Permalink
Post by Sean Kellogg
Post by Jeff King
Do whatever you want.
The only argument I have heard against this is that you (or your heirs)
may later say "Oh, but I didn't really mean *anything*." Which seems
silly to me, but perhaps that's why I'm a programmer and not a
lawyer.
Perhaps lawyers are silly, but I think the law is getting a bad rap in
this conversation. The issue is not with "evil heirs" but with
termination rights and market forces. Consider for a moment a budding
I think there are actually two issues we're talking about. I was
mentioning a line of reasoning I have seen here[1], which indicates that
we must be explicit in crafting PD-ish licenses, because our heirs can
bring suit, saying that the original author "couldn't have really meant
to do something so clearly to his detriment."

You are, as you say, talking about termination rights. But wouldn't
those be just as much an issue here as they are with, say, the GPL?

-Peff

[1] http://lists.debian.org/debian-legal/2005/04/msg00485.html
Sean Kellogg
2005-06-08 01:26:46 UTC
Permalink
Post by Jeff King
I think there are actually two issues we're talking about. I was
mentioning a line of reasoning I have seen here[1], which indicates that
we must be explicit in crafting PD-ish licenses, because our heirs can
bring suit, saying that the original author "couldn't have really meant
to do something so clearly to his detriment."
Hmm... specious reasoning if you ask me. Under the copyright act your heirs
get one chance to revoke your assignments, regardless of how crazy the
assignment may be, and that's codified in (s)203, Termination Rights. The
argument that is being made in the e-mail you referenced sounds like an
unconscionable argument... which is often made, but rarely sustained in the
contracts setting (it requires the clause to make the court "BLUSH"... yes,
blushing, a legal concept). I don't believe such a doctrine exists in IP
outside of the IP misuse doctrine... but that's a doctrine that deals with
attempting to leverage IP to gain more rights than granted under the statute
(like... I grant you use of patent, but you agree that I am the exclusive
owner of the patent for the next 40 years, even though the patent will expire
in 20). I don't see how that would be applicable in public domain setting.

But to be clear, there is no such thing as "dedication to the public
domain"... its just not possible under the copyright statute. Same goes for
patents... you have to be very careful if you want to intentionally void
your patent and "dedicate it to the public." All of these near-public domain
licenses are attempting to create PD-like conditions, but they are still
copyright licenses and are subject to termination and the like.
Post by Jeff King
You are, as you say, talking about termination rights. But wouldn't
those be just as much an issue here as they are with, say, the GPL?
Oh yes, termination rights are certainly an issue with the GPL. However, you
can't exercise termination rights on a work unless you control 50% of the
work. I suggest that most projects that will be around in 35 years are of
such size that no one person will have true majority control.
Post by Jeff King
-Peff
[1] http://lists.debian.org/debian-legal/2005/04/msg00485.html
Glenn Maynard
2005-06-08 01:43:19 UTC
Permalink
Post by Sean Kellogg
Post by Jeff King
You are, as you say, talking about termination rights. But wouldn't
those be just as much an issue here as they are with, say, the GPL?
Oh yes, termination rights are certainly an issue with the GPL. However, you
can't exercise termination rights on a work unless you control 50% of the
work. I suggest that most projects that will be around in 35 years are of
such size that no one person will have true majority control.
It's not so much projects that are actually around for 35 years. Rather,
if you maintain a project for, say, three or four years, I reuse large
chunks of it in my own project, and my project outlives yours. Decades
later, you (or your heirs) have a change of heart, and revoke the license
you originally granted to me for your project, which I require to use your
code in mine. You don't control 50% of my work, but you easily control
50% of the work you licensed. If I want my work to remain free, I have
to excise your code from it--which, decades later, probably won't be
possible. It's a textbook failure of the "tentacles of evil" test.
--
Glenn Maynard
Sean Kellogg
2005-06-08 04:13:49 UTC
Permalink
Post by Glenn Maynard
Post by Sean Kellogg
Post by Jeff King
You are, as you say, talking about termination rights. But wouldn't
those be just as much an issue here as they are with, say, the GPL?
Oh yes, termination rights are certainly an issue with the GPL. However,
you can't exercise termination rights on a work unless you control 50% of
the work. I suggest that most projects that will be around in 35 years
are of such size that no one person will have true majority control.
It's not so much projects that are actually around for 35 years. Rather,
if you maintain a project for, say, three or four years, I reuse large
chunks of it in my own project, and my project outlives yours. Decades
later, you (or your heirs) have a change of heart, and revoke the license
you originally granted to me for your project, which I require to use your
code in mine. You don't control 50% of my work, but you easily control
50% of the work you licensed. If I want my work to remain free, I have
to excise your code from it--which, decades later, probably won't be
possible. It's a textbook failure of the "tentacles of evil" test.
No argument from me... but it is the system we've got here in the States and
FOSS developers should plan accordingly, just as is expected of anyone else
who enters into the world of copyrights.

-Sean
Glenn Maynard
2005-06-08 04:46:35 UTC
Permalink
Post by Sean Kellogg
No argument from me... but it is the system we've got here in the States and
FOSS developers should plan accordingly, just as is expected of anyone else
who enters into the world of copyrights.
But that's just the problem--as far as I know, there's simply no way I can
release a work under any license (permissive, copyleft or otherwise) to
guarantee that you won't be bitten a few decades down the line. The only
way you can "plan accordingly", as far as I know, is to avoid reusing other
people's code entirely.
--
Glenn Maynard
Sean Kellogg
2005-06-08 06:07:44 UTC
Permalink
Post by Glenn Maynard
Post by Sean Kellogg
No argument from me... but it is the system we've got here in the States
and FOSS developers should plan accordingly, just as is expected of
anyone else who enters into the world of copyrights.
But that's just the problem--as far as I know, there's simply no way I can
release a work under any license (permissive, copyleft or otherwise) to
guarantee that you won't be bitten a few decades down the line. The only
way you can "plan accordingly", as far as I know, is to avoid reusing other
people's code entirely.
You just might be right... the current copyright statute came into effect in
1978, so the soonest the current termination regime can come into effect in
2012. (the earlier version of termination relied on initial and second term
stuff that is both weird and funky. Additionally, unlike the current
termination right, you could alienate the renewal right) It will be
interesting to see if there is pressure from the content industry to push the
35 year point back further, or eliminate it altogether, as we approach
2012... maybe you'll get your wish.

-Sean
Michael K. Edwards
2005-06-08 07:09:28 UTC
Permalink
Post by Glenn Maynard
It's not so much projects that are actually around for 35 years. Rather,
if you maintain a project for, say, three or four years, I reuse large
chunks of it in my own project, and my project outlives yours. Decades
later, you (or your heirs) have a change of heart, and revoke the license
you originally granted to me for your project, which I require to use your
code in mine. You don't control 50% of my work, but you easily control
50% of the work you licensed. If I want my work to remain free, I have
to excise your code from it--which, decades later, probably won't be
possible. It's a textbook failure of the "tentacles of evil" test.
This whole line of argument is a canard based on a failure to research
the meaning of "authorship" under US law. See Aalmuhammed v. Lee (
http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm ), and
observe that the 17 USC 203 termination right is reserved to _authors_
and their heirs, not contributors of any quantum of expression that
might by itself be copyrightable.

Cheers,
- Michael
Michael K. Edwards
2005-06-08 07:28:57 UTC
Permalink
To be precise, here is the relevant text from 17 USC 203:

(a) Conditions for Termination. — In the case of any work other than a
work made for hire, the exclusive or nonexclusive grant of a transfer
or license of copyright or of any right under a copyright, executed by
the author on or after January 1, 1978, otherwise than by will, is
subject to termination under the following conditions:

(1) In the case of a grant executed by one author, termination of the
grant may be effected by that author or, if the author is dead, by the
person or persons who, under clause (2) of this subsection, own and
are entitled to exercise a total of more than one-half of that
author's termination interest. In the case of a grant executed by two
or more authors of a joint work, termination of the grant may be
effected by a majority of the authors who executed it; if any of such
authors is dead, the termination interest of any such author may be
exercised as a unit by the person or persons who, under clause (2) of
this subsection, own and are entitled to exercise a total of more than
one-half of that author's interest.

...

(4) The termination shall be effected by serving an advance notice in
writing, signed by the number and proportion of owners of termination
interests required under clauses (1) and (2) of this subsection, or by
their duly authorized agents, upon the grantee or the grantee's
successor in title.

(A) The notice shall state the effective date of the termination,
which shall fall within the five-year period specified by clause (3)
of this subsection, and the notice shall be served not less than two
or more than ten years before that date. A copy of the notice shall be
recorded in the Copyright Office before the effective date of
termination, as a condition to its taking effect.

...

(b) ... (1) A derivative work prepared under authority of the grant
before its termination may continue to be utilized under the terms of
the grant after its termination, but this privilege does not extend to
the preparation after the termination of other derivative works based
upon the copyrighted work covered by the terminated grant.

So:

1) a copyright transfer (or reaffirmation of previous copyright
transfer) contained in the author's will is not terminable by the
author's personal heirs, so you can certainly block their ability to
terminate if you so choose;

2) the "50% rule" applies to _authorship_, which connotes (per
Aalmuhammed v. Lee) a degree of creative control so high that, e. g.,
there is no candidate for "authorship" of the Linux kernel other than
Linus Torvalds;

3) a later work that incorporates fragments of protected expression
from the original is only encumbered if its use of that expression
rises to the level of a "derivative work" requiring explicit grant of
license, which would imply that the amount of _copyrightable_
expression copied is more than "de minimis" relative to the size and
scope of the final work.

Given the proportion of a typical piece of software that is
uncopyrightable on grounds of "scenes a faire", "ideas and methods of
operation", and so forth, it is quite unlikely that a copyright
infringement claim could succeed thirty-five years after the creation
of the original unless substantial, identifiable chunks have been
literally copied. And if the maintainers can't reimplement those
chunks without plagiarism in two years' time, they have problems much
larger than those posed by 17 USC 203.

Cheer
Michael K. Edwards
2005-06-10 09:00:36 UTC
Permalink
Anthony does an excellent job of making the arguments in favor of the
Linux kernel as a joint work and/or a collective work containing
multiple components under separate authorship; but I simply don't
agree.

The collective work theory doesn't hold water at all (except with
regard to firmware blobs, which indeed are not part of the kernel).
The kernel, drivers and all, is a single work of authorship subject to
periodic systematic overhaul when internal APIs change. Any piece of
the code could get refactored or replicated anywhere else in the
kernel at any time without the involvement or approval of its
contributor.

Nor is anyone else a joint author; Linus doesn't exercise a heavy hand
when he doesn't have to; but he alone has the power to approve
contributions to the active development branch, and exerts a degree of
creative control that no one else can claim. A lot of authority is
delegated to maintenance series editors, but that's not where the
action is, and they serve at his pleasure and their individual
decisions are subject to his veto.

You might say that Aalmuhammed was Spike Lee's Alan Cox or David
Miller, by analogy with the facts of the case:

<quote>
[4] Aalmuhammed joined Washington on the movie set. The movie was
filmed in the New York metropolitan area and Egypt. Aalmuhammed
presented evidence that his involvement in making the movie was very
extensive. He reviewed the shooting script for Spike Lee and Denzel
Washington and suggested extensive script revisions. Some of his
script revisions were included in the released version of the film;
others were filmed but not included in the released version. Most of
the revisions Aalmuhammed made were to ensure the religious and
historical accuracy and authenticity of scenes depicting Malcolm X's
religious conversion and pilgrimage to Mecca.

[5] Aalmuhammed submitted evidence that he directed Denzel Washington
and other actors while on the set, created at least two entire scenes
with new characters, translated Arabic into English for subtitles,
supplied his own voice for voice-overs, selected the proper prayers
and religious practices for the characters, and edited parts of the
movie during post production. Washington testified in his deposition
that Aalmuhammed's contribution to the movie was "great" because he
"helped to rewrite, to make more authentic." Once production ended,
Aalmuhammed met with numerous Islamic organizations to persuade them
that the movie was an accurate depiction of Malcolm X's life.
</quote>

But Aalmuhammed still lost the portion of his case that depended on a
claim of co-authorship:

<quote>
[24] Aalmuhammed did not at any time have superintendence of the work.
Warner Brothers and Spike Lee controlled it. Aalmuhammed was not the
person "who has actually formed the picture by putting the persons in
position, and arranging the place. . . ." Spike Lee was, so far as we
can tell from the record. Aalmuhammed, like Larson's dramaturg, could
make extremely helpful recommendations, but Spike Lee was not bound to
accept any of them, and the work would not benefit in the slightest
unless Spike Lee chose to accept them. Aalmuhammed lacked control over
the work, and absence of control is strong evidence of the absence of
co-authorship.

...

[27] The Constitution establishes the social policy that our
construction of the statutory term "authors" carries out. The Founding
Fathers gave Congress the power to give authors copyrights in order
"[t]o promote the progress of Science and useful arts." Progress would
be retarded rather than promoted, if an author could not consult with
others and adopt their useful suggestions without sacrificing sole
ownership of the work. Too open a definition of author would compel
authors to insulate themselves and maintain ignorance of the
contributions others might make. Spike Lee could not consult a
scholarly Muslim to make a movie about a religious conversion to
Islam, and the arts would be the poorer for that.
</quote>

Notwithstanding the various degrees of autonomy that driver writers
and subsystem maintainers possess, I think that the Linux kernel is
neither a joint work nor a collective work, and irrespective of
acknowledgments and copyright notices no one other than Linus can
claim "authorship" under US law of any portion of the mainstream
kernel. Not, that is, unless and until he burns out and hands the
reins to a new benevolent dictator.

Cheers,
- Michael
(IANAL, TINLA)
Raul Miller
2005-06-12 00:56:09 UTC
Permalink
Post by Michael K. Edwards
Anthony does an excellent job of making the arguments in favor of the
Linux kernel as a joint work and/or a collective work containing
multiple components under separate authorship; but I simply don't
agree.
That is, of course your right.
Post by Michael K. Edwards
(IANAL, ...
In this case, I'm wondering if I should think of that L as standing
for "Lawyer' or "Linus"...
--
Raul
Michael K. Edwards
2005-06-12 02:24:52 UTC
Permalink
Post by Raul Miller
In this case, I'm wondering if I should think of that L as standing
for "Lawyer' or "Linus"...
I'm not Linus, either. I'm a pretty decent programmer, although I've
certainly produced no evidence that I'm in his league. And besides,
he's more diplomatic than I'll ever be; which, considering how
undiplomatic he can be at times, is saying quite a bit. :-)

Cheers,
- Michael

P. S. Note, however, that the Linux kernel is a derivative work of
works by some other authors, such as netfilter/iptables. I don't mean
to say that no one but Linus can file a claim of copyright
infringement or breach of contract against someone who is doing
genuinely inappropriate things with the kernel and friends (cf. the
Sitecom and Fortinet cases). But in order to demonstrate standing,
they're going to have to identify a work of authorship, not totally
subsumed in the Linux kernel development process, on which their
contribution rises to the level of co-author, as Harald Welte did with
respect to netfilter/iptables.
Michael K. Edwards
2005-06-12 07:12:43 UTC
Permalink
Post by Michael K. Edwards
P. S. Note, however, that the Linux kernel is a derivative work of
works by some other authors, such as netfilter/iptables. I don't mean
to say that no one but Linus can file a claim of copyright
infringement or breach of contract against someone who is doing
genuinely inappropriate things with the kernel and friends (cf. the
Sitecom and Fortinet cases). But in order to demonstrate standing,
they're going to have to identify a work of authorship, not totally
subsumed in the Linux kernel development process, on which their
contribution rises to the level of co-author, as Harald Welte did with
respect to netfilter/iptables.
Let me explain a little further why I think "derivative work" is the
right theory for the relationship between netfilter and the kernel. I
will start with an excerpt from the House Report's commentary on 17
USC 201:

<quote>
Two basic and well-established principles of copyright law are
restated in section 201(a): that the source of copyright ownership is
the author of the work, and that, in the case of a ''joint work,'' the
coauthors of the work are likewise coowners of the copyright. Under
the definition of section 101, a work is ''joint'' if the authors
collaborated with each other, or if each of the authors prepared his
or her contribution with the knowledge and intention that it would be
merged with the contributions of other authors as ''inseparable or
interdependent parts of a unitary whole.'' The touchstone here is the
intention, at the time the writing is done, that the parts be absorbed
or combined into an integrated unit, although the parts themselves may
be either ''inseparable'' (as the case of a novel or painting) or
''interdependent'' (as in the case of a motion picture, opera, or the
words and music of a song). The definition of ''joint work'' is to be
contrasted with the definition of ''collective work,'' also in section
101, in which the elements of merger and unity are lacking; there the
key elements are assemblage or gathering of ''separate and independent
works ... into a collective whole.''

The definition of ''joint works'' has prompted some concern lest it be
construed as converting the authors of previously written works, such
as plays, novels, and music, into coauthors of a motion picture in
which their work is incorporated. It is true that a motion picture
would normally be a joint rather than a collective work with respect
to those authors who actually work on the film, although their usual
status as employees for hire would keep the question of coownership
from coming up. On the other hand, although a novelist, playwright,
or songwriter may write a work with the hope or expectation that it
will be used in a motion picture, this is clearly a case of separate
or independent authorship rather than one where the basic intention
behind the writing of the work was for motion picture use. In this
case, the motion picture is a derivative work within the definition of
that term, and section 103 makes plain that in a derivative work is
independent of, and does not enlarge the scope of rights in, any
pre-existing material incorporated in it. There is thus no need to
spell this conclusion out in the definition of ''joint work.''
</quote>

The "elements of merger and unity" are not lacking in the kernel, so
there's no way it can be called a collective work (except as regards
the firmware blobs, which are not part of the kernel and not under the
GPL, no matter what the headers in the drivers may say). Oh, maybe a
driver maintained exclusively by a vendor isn't "merged" enough to
avoid "collective work" status; but the history of periodic rework is
so clear that I don't think a judge would have a hard time accepting
that the kernel is every bit as much a single work of authorship as
Spike Lee's "Malcolm X".

So if netfilter were not accompanied by a component outside the scope
of the kernel, and were intended from the beginning to be "absorbed or
combined into an integrated unit" together with all other kernel
contributors' work, then the only theory on which Harald Welte would
have any claim to authorship would be as co-author of the kernel as a
joint work; and as I wrote before I don't think that claim could
survive the analysis of Aalmuhammed v. Lee. But since
netfilter+iptables also exists as an independent work of authorship --
at any given time, an update to the netfilter subsystem of the kernel
plus a tightly interlocked userspace tool for control and status
reporting -- Harald does have a claim of co-authorship on that work.

Recall that there was no particular distinction between what are now
known as "collective works" and "derivative works" under the 1909 Act,
which was perfectly happy with this clause (added in 1947):

<quote>
7. Copyright on compilations of works in public domain or of
copyrighted works; subsisting copyrights not affected

Compilations or abridgements, adaptations, arrangements,
dramatizations, translations, or other versions of works in the public
domain or of copyrighted works when produced with the consent of the
proprietor of the copyright in such works, or works republished with
new matter, shall be regarded as new works subject to copyright under
the provisions of this title; but the publication of any such new
works shall not affect the force or validity of any subsisting
copyright upon the matter employed or any part thereof, or be
construed to imply an exclusive right to such use of the original
works, or to secure or extend copyright in such original works.
</quote>

Why, then, does the category "derivative works" warrants its own
definition in the 1976 Act? Judging from the House Report, largely
for the sake of the 203(b)(1) / 304(c)(6)(A) exception to license
termination. As discussed previously, this exception was largely
intended to remedy situations in which a large work requiring a large
financial investment to produce (such as a film) was held for ransom
by the copyright holder on a small work embedded within it (such as a
song). In fact, under the 1909 law there were apparently instances
"in which third parties have bought up contingent future interests as
a form of speculation", which is why an author cannot under the 1976
law offer a new license to anyone other than the original licensee (or
the licensee's successor) until the effective date of termination.

The relationship of a song (or perhaps rather an orchestral score) to
a film is precisely the relationship of netfilter to the kernel -- an
independent work of authorship, perhaps written specifically for the
purpose of accompanying the larger work, but with some independent
merit as a creative work (perhaps together with other material that is
part of the independent work but not used in the larger work). That's
the sort of situation for which the "derivative work" category was
conceived.

Cheers,
- Michael
Raul Miller
2005-06-13 15:14:26 UTC
Permalink
Post by Michael K. Edwards
Sitecom and Fortinet cases). But in order to demonstrate standing,
they're going to have to identify a work of authorship, not totally
subsumed in the Linux kernel development process, on which their
contribution rises to the level of co-author, as Harald Welte did with
respect to netfilter/iptables.
Many contributors to the linux kernel maintain and publish their own
copies of a source tree as independent works. Only a small fraction
of that work is incorporated into the "official" kernels.

[Note: I'm not attempting to respond to every individual concept from
that quoted sentence, I'm focussing on the first two clauses.]
--
Raul
Anthony DeRobertis
2005-06-10 08:20:34 UTC
Permalink
Post by Michael K. Edwards
2) the "50% rule" applies to _authorship_, which connotes (per
Aalmuhammed v. Lee) a degree of creative control so high that, e.
g.,there is no candidate for "authorship" of the Linux kernel other
than Linus Torvalds;
I've read the cited case, and it does not seem to apply well to the
Linux kernel. The first problem is that not all versions of Linux have
Linus as having sole control over the work; Linux 2.0, 2.2., and 2.4 are
all controlled by people other than him. The same applies to all the
various branches (-ac, -mm, etc.).

The second problem is that Linus allows a large amount of effective
control over the kernel to his section maintainers; while he can of
course say no to their changes, he generally delegates that decision to
them.

The third is that large parts of the kernel are written by diverse
people and are not actually part of an inseperable whole at all;
examples include drivers. Some of these, for example, are used on xBSD
as well.

The fourth is that the cited case involves things certainly not relevant
to Linux, such as a "work for hire" agreement being signed.

In short, Aalmuhammed was hired to offer advice, not to create parts of
the movie. He had no control over the movie. This is not at all how
large contributions to the kernel work.

As a typical example, let's say I have a Foo Corp video card, which is
not supported by Linux. I reverse-engineer the hardware interface, and
write a driver. After a good deal of testing, I submit it to
linux-kernel (the kernel mailing list). I have had full control over
this work; I am its author. Several people on linux-kernel provide
suggestions; by the standards in Aalmuhammed v. Lee, they are not
co-authors. After I make those minor changes, the person in charge of
video drivers accepts my driver, and forwards it to Linus, who includes
it in the kernel tarball. What has happened here is that Linus (and
possible some others) have created a collection, which is probably in
itself copyrightable. He/they are indeed the author of that collection;
however, I am still the author of my part of that collection.
Glenn Maynard
2005-06-08 07:33:32 UTC
Permalink
Post by Michael K. Edwards
Post by Glenn Maynard
It's not so much projects that are actually around for 35 years. Rather,
if you maintain a project for, say, three or four years, I reuse large
chunks of it in my own project, and my project outlives yours. Decades
later, you (or your heirs) have a change of heart, and revoke the license
you originally granted to me for your project, which I require to use your
code in mine. You don't control 50% of my work, but you easily control
50% of the work you licensed. If I want my work to remain free, I have
to excise your code from it--which, decades later, probably won't be
possible. It's a textbook failure of the "tentacles of evil" test.
This whole line of argument is a canard based on a failure to research
the meaning of "authorship" under US law. See Aalmuhammed v. Lee (
http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm ), and
observe that the 17 USC 203 termination right is reserved to _authors_
and their heirs, not contributors of any quantum of expression that
might by itself be copyrightable.
I integrate your MP3 decoding library into my media playing software. The
author of the MP3 decoding source code is very clear: you. I can only reuse
that library due to the license granted to it. That license is revoked. I
can no longer use the MP3 decoder[1]; if it's affected my work enough that
I can not excise it from my code (so my work is not a derived work of the
library), it's up a creek. This isn't a case of you contributing patches
to work that I'm the author of; it's you authoring an independent work, and
my integrating your work into mine--one of the most fundamental parts of
free software.


[1] or, for the nitpickers, "can no longer distribute my work which is
derived from the MP3 decoder".
--
Glenn Maynard
Michael K. Edwards
2005-06-08 10:02:15 UTC
Permalink
Post by Glenn Maynard
I integrate your MP3 decoding library into my media playing software. The
author of the MP3 decoding source code is very clear: you. I can only reuse
that library due to the license granted to it. That license is revoked. I
can no longer use the MP3 decoder[1]; if it's affected my work enough that
I can not excise it from my code (so my work is not a derived work of the
library), it's up a creek. This isn't a case of you contributing patches
to work that I'm the author of; it's you authoring an independent work, and
my integrating your work into mine--one of the most fundamental parts of
free software.
[1] or, for the nitpickers, "can no longer distribute my work which is
derived from the MP3 decoder".
Presumably you wrote this before reading my subsequent messages. Your
use of this hypothetical MP3 library through its published interface
does not create a derivative work under copyright law. But suppose
you have received both license to copy and license to create and
publish derivative works, and then receive the statutory minimum
two-year notice of license termination. You would be well advised to
find time somewhere in that two-year interval to make changes to that
library sufficient to constitute creation of a derivative work, and
then to freeze its API.

For 17 USC 203 (b)(1) grants you the right to continue distribution of
that derivative work after the termination becomes effective; and a
sane court is likely to hold that localized bug fixes thereafter do
not constitute "preparation ... of other derivative works" in excess
of this privilege.

Cheers,
- Michael
Glenn Maynard
2005-06-08 10:22:06 UTC
Permalink
Post by Michael K. Edwards
Post by Glenn Maynard
I integrate your MP3 decoding library into my media playing software. The
author of the MP3 decoding source code is very clear: you. I can only reuse
that library due to the license granted to it. That license is revoked. I
can no longer use the MP3 decoder[1]; if it's affected my work enough that
I can not excise it from my code (so my work is not a derived work of the
library), it's up a creek. This isn't a case of you contributing patches
to work that I'm the author of; it's you authoring an independent work, and
my integrating your work into mine--one of the most fundamental parts of
free software.
[1] or, for the nitpickers, "can no longer distribute my work which is
derived from the MP3 decoder".
Presumably you wrote this before reading my subsequent messages. Your
use of this hypothetical MP3 library through its published interface
does not create a derivative work under copyright law.
"Published interface"? Again, "integrate into my software", not "link
against a published interface". Copy code directly into my program, and
allow the works to merge and integrate.

Another major, obvious example is forks.
Post by Michael K. Edwards
For 17 USC 203 (b)(1) grants you the right to continue distribution of
that derivative work after the termination becomes effective; and a
sane court is likely to hold that localized bug fixes thereafter do
not constitute "preparation ... of other derivative works" in excess
of this privilege.
If the right to prepare derivative works is revoked, the work is clearly
non-free, and we again have a failure of the tentacles of evil test.
--
Glenn Maynard
Michael K. Edwards
2005-06-08 12:57:06 UTC
Permalink
Post by Glenn Maynard
"Published interface"? Again, "integrate into my software", not "link
against a published interface". Copy code directly into my program, and
allow the works to merge and integrate.
Another major, obvious example is forks.
If you truly wish to do so, you may strip your heirs, in your last
will and testament, of statutory termination rights, by the simple
expedient of ratifying an existing assignment of copyright to a
corporate entity run by the benevolent dictator of your choice. You
don't even have to trust that benevolent dictator beyond the point at
which your work is first published under their copyright notice and a
sufficiently permissive license, as long as that license is contained
in an offer of bilateral contract such as the GPL. (Unilateral grants
of license, with no return consideration, are terminable at will in
many jurisdictions irrespective of their ostensible term.)

On the other hand, nothing but death (or a certificate of mental
incompetence, but that's a sidetrack I'm disinclined to follow) can
legally stop someone from changing the terms of his or her will. So
unless a person outlives his or her termination interest, or has died
and his or her will (containing the above measures) has been through
probate, you can't be sure that a grant of copyright license is
irrevocable. Unless, of course, that person goes to the trouble of
setting up a corporate shell and handling the accounting properly to
substantiate a claim that his or her work was "made for hire" to begin
with.
Post by Glenn Maynard
Post by Michael K. Edwards
For 17 USC 203 (b)(1) grants you the right to continue distribution of
that derivative work after the termination becomes effective; and a
sane court is likely to hold that localized bug fixes thereafter do
not constitute "preparation ... of other derivative works" in excess
of this privilege.
If the right to prepare derivative works is revoked, the work is clearly
non-free, and we again have a failure of the tentacles of evil test.
Current US law does not permit a 32-year-old man to make a promise of
eternal copyright license (with respect to a work not made for hire)
binding on his 69-year-old future self. This is generally held to be
a liberty granted to independent authors and artists (and their heirs)
in recognition of both their courage and their improvidence. It is
quite futile to protest this feature of the law, as it dates from 1978
and is easily circumvented (if you really want to) with a little
planning and competent legal advice.

In any case, a limited exception is provided so that authors of
licensed derivative works are not robbed of similar liberties with
respect to works they have already created. So if RMS or his personal
heir decides in 2020 to exercise his right to terminate, as of 2022,
the assignment of his copyright in the 1985 edition of GNU Emacs to
the FSF, those of us still alive will get to find out how much
reimplementation can be done in two years and/or how far 17 USC
203(b)(1) privileges with respect to a still-evolving fork can be
stretched. :-)

Cheers,
- Michael
(IANAL, TINLA)
Sean Kellogg
2005-06-08 17:23:58 UTC
Permalink
Post by Michael K. Edwards
Post by Glenn Maynard
"Published interface"? Again, "integrate into my software", not "link
against a published interface". Copy code directly into my program, and
allow the works to merge and integrate.
Another major, obvious example is forks.
If you truly wish to do so, you may strip your heirs, in your last
will and testament, of statutory termination rights, by the simple
expedient of ratifying an existing assignment of copyright to a
corporate entity run by the benevolent dictator of your choice. You
don't even have to trust that benevolent dictator beyond the point at
which your work is first published under their copyright notice and a
sufficiently permissive license, as long as that license is contained
in an offer of bilateral contract such as the GPL. (Unilateral grants
of license, with no return consideration, are terminable at will in
many jurisdictions irrespective of their ostensible term.)
Sorry but this won't work either. The statue is quite clear that the
termination right is non-assignable, even through a will. If you have a
surviving spouse, children, or other "issue" then they will get the
termination right under standard intestancy rules. Even when all of those
folks are dead, the termination right cannot be transfered by a will, it goes
into the hands of your estate's executor.
Post by Michael K. Edwards
On the other hand, nothing but death (or a certificate of mental
incompetence, but that's a sidetrack I'm disinclined to follow) can
legally stop someone from changing the terms of his or her will. So
unless a person outlives his or her termination interest, or has died
and his or her will (containing the above measures) has been through
probate, you can't be sure that a grant of copyright license is
irrevocable. Unless, of course, that person goes to the trouble of
setting up a corporate shell and handling the accounting properly to
substantiate a claim that his or her work was "made for hire" to begin
with.
Post by Glenn Maynard
Post by Michael K. Edwards
For 17 USC 203 (b)(1) grants you the right to continue distribution of
that derivative work after the termination becomes effective; and a
sane court is likely to hold that localized bug fixes thereafter do
not constitute "preparation ... of other derivative works" in excess
of this privilege.
If the right to prepare derivative works is revoked, the work is clearly
non-free, and we again have a failure of the tentacles of evil test.
Current US law does not permit a 32-year-old man to make a promise of
eternal copyright license (with respect to a work not made for hire)
binding on his 69-year-old future self. This is generally held to be
a liberty granted to independent authors and artists (and their heirs)
in recognition of both their courage and their improvidence. It is
quite futile to protest this feature of the law, as it dates from 1978
and is easily circumvented (if you really want to) with a little
planning and competent legal advice.
Yeah, don't know what you mean here... I can't see how any amount of legal
planning is going to avoid future-selves/heirs from exercising their
termination rights.
Post by Michael K. Edwards
In any case, a limited exception is provided so that authors of
licensed derivative works are not robbed of similar liberties with
respect to works they have already created. So if RMS or his personal
heir decides in 2020 to exercise his right to terminate, as of 2022,
the assignment of his copyright in the 1985 edition of GNU Emacs to
the FSF, those of us still alive will get to find out how much
reimplementation can be done in two years and/or how far 17 USC
203(b)(1) privileges with respect to a still-evolving fork can be
stretched. :-)
Cheers,
- Michael
(IANAL, TINLA)
-Sean

p.s. I very much believe that all residences of a jurisdiction should be able
to fully discuss the implication of the law and how it should be applied...
but if it counts for anything, I am just finishing my 2nd year in law school
having aced all of my IP course work.
Michael K. Edwards
2005-06-08 18:56:50 UTC
Permalink
Post by Sean Kellogg
Post by Michael K. Edwards
If you truly wish to do so, you may strip your heirs, in your last
will and testament, of statutory termination rights, by the simple
expedient of ratifying an existing assignment of copyright to a
corporate entity run by the benevolent dictator of your choice. You
don't even have to trust that benevolent dictator beyond the point at
which your work is first published under their copyright notice and a
sufficiently permissive license, as long as that license is contained
in an offer of bilateral contract such as the GPL. (Unilateral grants
of license, with no return consideration, are terminable at will in
many jurisdictions irrespective of their ostensible term.)
Sorry but this won't work either. The statue is quite clear that the
termination right is non-assignable, even through a will. If you have a
surviving spouse, children, or other "issue" then they will get the
termination right under standard intestancy rules. Even when all of those
folks are dead, the termination right cannot be transfered by a will, it goes
into the hands of your estate's executor.
(a) Conditions for Termination. — In the case of any work other than a
work made for hire, the exclusive or nonexclusive grant of a transfer
or license of copyright or of any right under a copyright, executed by
the author on or after January 1, 1978, otherwise than by will, is
subject to termination under the following conditions:

See that "otherwise than by will" part? The termination right is not
assignable through a will, but a transfer by will is not terminable.
Post by Sean Kellogg
Post by Michael K. Edwards
.... Unless, of course, that person goes to the trouble of
setting up a corporate shell and handling the accounting properly to
substantiate a claim that his or her work was "made for hire" to begin
with.
[snip]
Post by Sean Kellogg
Post by Michael K. Edwards
Current US law does not permit a 32-year-old man to make a promise of
eternal copyright license (with respect to a work not made for hire)
binding on his 69-year-old future self. This is generally held to be
a liberty granted to independent authors and artists (and their heirs)
in recognition of both their courage and their improvidence. It is
quite futile to protest this feature of the law, as it dates from 1978
and is easily circumvented (if you really want to) with a little
planning and competent legal advice.
Yeah, don't know what you mean here... I can't see how any amount of legal
planning is going to avoid future-selves/heirs from exercising their
termination rights.
Work-made-for-hire exception. AIUI, that's how the pros in Hollywood
work around it -- anyone whose contribution to a film rises to the
level of "authorship" (especially screenplay writers) and hasn't
already been completed is expected to "work for hire" within a
corporate shell. I don't know how they approach adaptations of novels
in which the copyright was originally held personally -- ask
Christopher Tolkien, maybe.

[snip]
Post by Sean Kellogg
p.s. I very much believe that all residences of a jurisdiction should be able
to fully discuss the implication of the law and how it should be applied...
but if it counts for anything, I am just finishing my 2nd year in law school
having aced all of my IP course work.
It's always nice to have genuinely knowledgeable people (which I am
not) in the discussion. :-) You may be right about the "utilize"
language in 17 USC 203 (b) (1); I ought to track down the full House
Report.

Cheers,
- Michael
(IANAL, TI
Sean Kellogg
2005-06-08 19:08:37 UTC
Permalink
Post by Michael K. Edwards
(a) Conditions for Termination. — In the case of any work other than a
work made for hire, the exclusive or nonexclusive grant of a transfer
or license of copyright or of any right under a copyright, executed by
the author on or after January 1, 1978, otherwise than by will, is
This section is not referring to transferring termination rights by will, it
is referring to copyright assignment by will.

So, if I assign you my copyright in FOO via a will, then the assignment is not
subject to termination. However, it doesn't say anything about transferring
the termination right by will. So, if our intrepid Public Domainers really
want to avoid having their heirs terminating licenses, they should assign all
of their copyrights to the ether, and then arrange for their immediate death.
Of course, I don't really think that will work under the law of wills... nor
could you forever GPL your work via a will, because the GPL does not assign
the copyright. Absent a clear assignment, your copyright will transfer via
intestancy and end up in the hands of your heirs... because someone's got to
think of the children!
Post by Michael K. Edwards
See that "otherwise than by will" part? The termination right is not
assignable through a will, but a transfer by will is not terminable.
Post by Sean Kellogg
Post by Michael K. Edwards
.... Unless, of course, that person goes to the trouble of
setting up a corporate shell and handling the accounting properly to
substantiate a claim that his or her work was "made for hire" to begin
with.
[snip]
Post by Sean Kellogg
Post by Michael K. Edwards
Current US law does not permit a 32-year-old man to make a promise of
eternal copyright license (with respect to a work not made for hire)
binding on his 69-year-old future self. This is generally held to be
a liberty granted to independent authors and artists (and their heirs)
in recognition of both their courage and their improvidence. It is
quite futile to protest this feature of the law, as it dates from 1978
and is easily circumvented (if you really want to) with a little
planning and competent legal advice.
Yeah, don't know what you mean here... I can't see how any amount of
legal planning is going to avoid future-selves/heirs from exercising
their termination rights.
Work-made-for-hire exception. AIUI, that's how the pros in Hollywood
work around it -- anyone whose contribution to a film rises to the
level of "authorship" (especially screenplay writers) and hasn't
already been completed is expected to "work for hire" within a
corporate shell. I don't know how they approach adaptations of novels
in which the copyright was originally held personally -- ask
Christopher Tolkien, maybe.
Yeah, maybe... but the work-for-hire doctrine is tricky business. You can't
just declare something a work-for-hire, it is dependent on behavior. I find
it difficult to accept that most screenplays are done as a work-for-hire,
because (if I understand the industry) the author pitches a screenplay to the
production house. Unless the screenplay writer is drawing a regular salary,
working in house, and under the direction of the production house, it is
unlikely to be considered a work-for-hire.
Post by Michael K. Edwards
It's always nice to have genuinely knowledgeable people (which I am
not) in the discussion. :-) You may be right about the "utilize"
language in 17 USC 203 (b) (1); I ought to track down the full House
Report.
Woah, someone saying someone else might be right on Debian-Legal!!! I am
shocking, amazed, and completely humbled.

-Sean
Michael K. Edwards
2005-06-09 00:13:03 UTC
Permalink
Post by Sean Kellogg
This section is not referring to transferring termination rights by will, it
is referring to copyright assignment by will.
So, if I assign you my copyright in FOO via a will, then the assignment is not
subject to termination. However, it doesn't say anything about transferring
the termination right by will. So, if our intrepid Public Domainers really
want to avoid having their heirs terminating licenses, they should assign all
of their copyrights to the ether, and then arrange for their immediate death.
Of course, I don't really think that will work under the law of wills... nor
could you forever GPL your work via a will, because the GPL does not assign
the copyright. Absent a clear assignment, your copyright will transfer via
intestancy and end up in the hands of your heirs... because someone's got to
think of the children!
We're in violent agreement here. :-) I never said (or at least never
meant to say) that the termination right was assignable by will, only
that it was possible to extinguish it, as regards one's heirs, by a
(reaffirmation of) copyright assignment in one's will. See my earlier
message for how a benevolent dictator with a shell corporation, plus
the fact that the GPL is an offer of bilateral contract, helps parlay
this extinction of the termination right into a GPL release that
neither one's heirs nor the benevolent dictator can revoke.
Post by Sean Kellogg
Yeah, maybe... but the work-for-hire doctrine is tricky business. You can't
just declare something a work-for-hire, it is dependent on behavior. I find
it difficult to accept that most screenplays are done as a work-for-hire,
because (if I understand the industry) the author pitches a screenplay to the
production house. Unless the screenplay writer is drawing a regular salary,
working in house, and under the direction of the production house, it is
unlikely to be considered a work-for-hire.
My understanding is that screenwriters working "on spec" (speculation,
not specification) are guided by their agents in the creation of a
shell corporation which receives their royalties from past deals and
doles them out to the screenwriter as salary, nominally in return for
copyright in new works on a "work made for hire" basis. I've had
occasion to follow a very similar practice when wearing my "software
consulting services" hat, more for tax reasons than for copyright's
sake. But I don't know all the ins and outs of "work made for hire"
in a copyright context (it's actually quite different from employment
law), so TIEmphaticallyNLA.

For a case in the area of modern dance where the appeals court ruled,
using facts determined in district court, partly for and partly
against assertion of the "works made for hire" doctrine, see Martha
Graham School v. Martha Graham Center,
http://caselaw.lp.findlaw.com/data2/circs/2nd/029451p.pdf . But see
also Marvel Characters v. Simon at
http://caselaw.lp.findlaw.com/data2/circs/2nd/027221.html ; if the
relationship is not properly structured up front, even an otherwise
binding acknowledgment of "works made for hire" status may be
repudiated for purposes of termination of assignment.
Post by Sean Kellogg
Post by Michael K. Edwards
It's always nice to have genuinely knowledgeable people (which I am
not) in the discussion. :-) You may be right about the "utilize"
language in 17 USC 203 (b) (1); I ought to track down the full House
Report.
Woah, someone saying someone else might be right on Debian-Legal!!! I am
shocking, amazed, and completely humbled.
Yeah, well, I'm rather proud of the fact that I can still surprise and
shock people. :-)

However, I think the House Report actually supports an interpretation
of 203(b)(1) in which continued reproduction and distribution of a
derivative work is permitted after termination of license to the
original. Here is the relevant text:

<quote>
An important limitation on the rights of a copyright owner under a
terminated grant is specified in section 203(b)(1). This clause
provides that, notwithstanding a termination, a derivative work
prepared earlier may ''continue to be utilized'' under the conditions
of the terminated grant; the clause adds, however, that this privilege
is not broad enough to permit the preparation of other derivative
works. In other words, a film made from a play could continue to be
licensed for performance after the motion picture contract had been
terminated but any remake rights covered by the contract would be cut
off. For this purpose, a motion picture would be considered as a
''derivative work'' with respect to every ''preexisting work''
incorporated in it, whether the preexisting work was created
independently or was prepared expressly for the motion picture.
</quote>

It's worth noting that this was written in 1976, before consumer
videotape, and that Congress was thinking specifically about film
"performance" rights rather than reproduction for retail sale. It's
poorly drafted law, and Congress ought to fix it before it becomes a
serious issue in software space. If there were not yet any appellate
case law in this area, I think one would have a fair chance of arguing
that the legislative record of the existing statute already demands
that the right to "utilize" a software derivative work include the
right to make and distribute additional copies of it.

Since it isn't 2013 yet, there are only two ways in which it is likely
that 17 USC 203 has come up in court: as a possible override of state
contract law regarding copyright licenses of indefinite duration (as
in Rano v. Sipa Press, Walthal v. Rusk, and Korman v. HBC Florida),
and as a source of insight into similar provisions regarding pre-1978
conveyances in 17 USC 304 (as in Broadcast Music v. Roger Miller
Music, http://caselaw.lp.findlaw.com/data2/circs/6th/025766p.pdf ).

17 USC 304(c) (6) (A), however, contains the same exception as 17 USC
203 (b) (1); and its meaning has been addressed by the Supreme Court
in the 1985 case Mills Music v. Snyder (
http://laws.findlaw.com/us/469/153.html ). Although the Court split
5-4 on the issue of whether Mills Music (the middleman between Ted
Snyder and the record companies that actually prepared derivative
works) deserved to be covered by the Exception, all nine Justices
agreed that the phrase "utilized under the terms of the grant"
included the record companies' actions in continuing to duplicate and
sell recordings that had already been "prepared", i. e., recorded in a
studio.

So I think it turns out I was right in the first place: continued
verbatim copying and distribution counts as "utilization", and the
only scope for argument is about how much bug-fixing you can do after
termination without being sued for "preparing" a new derivative work.

Cheers,
- Michael
Michael K. Edwards
2005-06-10 01:36:12 UTC
Permalink
Post by Michael K. Edwards
So I think it turns out I was right in the first place: continued
verbatim copying and distribution counts as "utilization", and the
only scope for argument is about how much bug-fixing you can do after
termination without being sued for "preparing" a new derivative work.
Sean commented previously that Congress's use of the otherwise
undefined word "utilize" in 17 USC 203 is confusing, and I agree.
However, the Mills Music case clears things up considerably; and as
Congress hasn't seen the need to override Mills by modifying 203 and
304 in any of the various revisions to the Act over the subsequent 20
years, I think we can take it as good law. Although I haven't
Shepardized it yet, I've used FindLaw to search for subsequent Supreme
Court decisions that reference Mills, and it doesn't appear to have
been repudiated by later courts.

In fact, see Stewart v. Abend 1990, which references Mills when
comparing the 304(c)(6)(A) exception to the author's termination
rights against the lack of such an exception in the provisions for the
renewal term of a pre-1978 copyright. The opinion states: "For
example, if petitioners held a valid copyright in the story throughout
the original and renewal terms, and the renewal term in 'Rear Window'
were about to expire, petitioners could continue to distribute the
motion picture even if respondent terminated the grant of rights, but
could not create a new motion picture version of the story."

Thus Mills was still good precedent in 1990, and was used in the
course of distinguishing between relicensing at the commencement of
the renewal term and post-renewal-term termination with respect to
pre-1978 works. Note also that the Supreme Court affirmed the decision
of the Ninth Circuit in Stewart v. Abend and largely rejected the
reasoning in the 1977 Rohauer v. Killiam Shows decision of the Second
Circuit (the previous authority, given that certioriari was denied at
that time). It is interesting to note that Nimmer's commentary on
Rohauer seems to have strongly influenced the justices who joined in
the Stewart decision.

It is interesting to search forward for circuit rulings that cite
Mills Music; see, for instance, Fred Ahlert Music v. Warner/Chappell
1998 ( http://caselaw.lp.findlaw.com/data2/circs/2nd/977705.html ),
which certainly seems to indicate that Mills was still good law and
that "utilize ... under the terms of the grant" continues to be
understood to refer to a continuation of all terms of, and limitations
on, the original license with respect to a derivative work already
"prepared".

Cheers,
- Michael
Michael K. Edwards
2005-06-10 02:16:21 UTC
Permalink
See also the Second Circuit's decision in Woods v. Bourne (
http://caselaw.lp.findlaw.com/data2/circs/2nd/947421.html ), in which
the appeals court held that a publisher with license to authorize
derivative works was insulated by 17 U.S.C. 304(c)(6)(A) from
reversion to the author of royalties due to movies and television
programs created before termination. However, the publisher retained
no rights in various radio performances of sound recordings, in which
the publisher's contribution to the _arrangement_being_recorded_ (up
to and including a rewrite of the bass line in the piano part) did not
rise to the level of originality needed to create a derivative work.
(Sound recordings are derivative works but form a special exception to
the Exception, since "the right to perform a song contained in a sound
recording belongs to the owner of the copyright in the song".)

Mapping this over to software space, it appears to me that compiling
to object code, whether or not it creates a "derivative work", is like
the creation of a sound recording in that critical rights in the
result remain vested in the creator of the original rather than in the
entity that did the compiling. Meanwhile, bug fixes (before or after
termination) probably do not rise to the level of originality required
to create a fresh derivative work. So if faced by 17 USC 203
termination of an open source license, one would have to make
significant enough changes to make a real derivative work before
termination, and then restrict oneself thereafter to bug fixes and
similar changes that do not rise to the level of "independent
creation".

So 17 USC 203 isn't totally toothless with respect to open source, but
it's hardly the bugbear Glenn and Sean feared. Right, guys?

Cheers,
- Michael
Sean Kellogg
2005-06-10 07:59:23 UTC
Permalink
Post by Michael K. Edwards
Post by Michael K. Edwards
So I think it turns out I was right in the first place: continued
verbatim copying and distribution counts as "utilization", and the
only scope for argument is about how much bug-fixing you can do after
termination without being sued for "preparing" a new derivative work.
Sean commented previously that Congress's use of the otherwise
undefined word "utilize" in 17 USC 203 is confusing, and I agree.
However, the Mills Music case clears things up considerably; and as
Congress hasn't seen the need to override Mills by modifying 203 and
304 in any of the various revisions to the Act over the subsequent 20
years, I think we can take it as good law. Although I haven't
Shepardized it yet, I've used FindLaw to search for subsequent Supreme
Court decisions that reference Mills, and it doesn't appear to have
been repudiated by later courts.
In fact, see Stewart v. Abend 1990, which references Mills when
comparing the 304(c)(6)(A) exception to the author's termination
rights against the lack of such an exception in the provisions for the
renewal term of a pre-1978 copyright. The opinion states: "For
example, if petitioners held a valid copyright in the story throughout
the original and renewal terms, and the renewal term in 'Rear Window'
were about to expire, petitioners could continue to distribute the
motion picture even if respondent terminated the grant of rights, but
could not create a new motion picture version of the story."
Thus Mills was still good precedent in 1990, and was used in the
course of distinguishing between relicensing at the commencement of
the renewal term and post-renewal-term termination with respect to
pre-1978 works. Note also that the Supreme Court affirmed the decision
of the Ninth Circuit in Stewart v. Abend and largely rejected the
reasoning in the 1977 Rohauer v. Killiam Shows decision of the Second
Circuit (the previous authority, given that certioriari was denied at
that time). It is interesting to note that Nimmer's commentary on
Rohauer seems to have strongly influenced the justices who joined in
the Stewart decision.
You could be right... but I think that Mills is distinguishable on the law
(if not also the facts...). The renewal right under (s)304 and the
termination right under (s)203 are really quite different. For example, the
renewal right is transferable, where the termination right is not.
Additionally, if utilization is read the way you suggest, it really strikes
at the heart of the policy objective of the termination right.

The objective, as explained by my Copyrights Prof., is to provide authors a
second chance to negotiate licenses that may have been poorly made when the
work was first released. If termination only prohibits the creation of new
derivative works, leaving copying and distribution of preexisting
derivatives, then what's really left to renegotiate?

As an added complication, the utilization term is only applicable in the case
of derivative works based on the licensed work, but not pure copies. So if I
have a license to copy and distribute a Beatles's song without any
alterations from the original, when the license is terminated I'm left with
nothing... I can't even keep the original copy around! Does making a
derivative really earn you so many rights that you not only get to keep the
copy, but also made new copies and distribute?!

... something doesn't smell right.

-Sean
--
Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown
Michael K. Edwards
2005-06-10 08:27:52 UTC
Permalink
Post by Sean Kellogg
You could be right... but I think that Mills is distinguishable on the law
(if not also the facts...). The renewal right under (s)304 and the
termination right under (s)203 are really quite different. For example, the
renewal right is transferable, where the termination right is not.
Additionally, if utilization is read the way you suggest, it really strikes
at the heart of the policy objective of the termination right.
304(c)(6)(A) is exactly the same text as 203(b)(1), and applies only
to termination during the "extension term" (the 19 years after 28+28)
of a pre-1978 copyright. No relation to the renewal term, as
discussed in Stewart v. Abend.
Post by Sean Kellogg
The objective, as explained by my Copyrights Prof., is to provide authors a
second chance to negotiate licenses that may have been poorly made when the
work was first released. If termination only prohibits the creation of new
derivative works, leaving copying and distribution of preexisting
derivatives, then what's really left to renegotiate?
Largely, terms on reproduction of the original work. And as the most
important applications of the "derivative work" business are sound
recordings and film/television rights, and sound recordings are
exceptions to the Exception (per Woods v. Bourne), Congress probably
figured that it was stupid for a film to be withdrawn from circulation
because its producer's license to some song was terminated (as had
happened upon copyright renewal under the 1909 law).

Authors don't generally grant their publishers blanket licenses to
create derivative works of their books, and by the time they're
authorizing a screenplay they ought to know this is their one shot at
negotiating big royalty payments. So about the only people getting
burned by the derivative works exception to termination are open
source authors who grant blanket authorizations to modify and reuse;
and that's fine, because it would be just as silly to let them pull
the plug on users of a derivative of their work as it would be to let
songwriters hold already "prepared" films for ransom.
Post by Sean Kellogg
As an added complication, the utilization term is only applicable in the case
of derivative works based on the licensed work, but not pure copies. So if I
have a license to copy and distribute a Beatles's song without any
alterations from the original, when the license is terminated I'm left with
nothing... I can't even keep the original copy around! Does making a
derivative really earn you so many rights that you not only get to keep the
copy, but also made new copies and distribute?!
You're misreading "utilize"; it's the publisher's right to "utilize"
the copyright license by copying and initial distribution that's being
terminated, not any right of use and subsequent transfer inherent in
an individual copy after first sale. All that "preparing" a
derivative work (under explicit license to do so) gets a publisher is
the right to continue the terms of the existing agreement with respect
to that derivative work. Read Woods v. Bourne for an idea of which
royalty agreements get renegotiated and which don't.

Cheers,
- Michael
Michael K. Edwards
2005-06-10 08:29:43 UTC
Permalink
Post by Michael K. Edwards
304(c)(6)(A) is exactly the same text as 203(b)(1), and applies only
to termination during the "extension term" (the 19 years after 28+28)
of a pre-1978 copyright. ...
39 instead of 19 now, of course, courtesy of the Sonny Bono Act.

Regrets,
- Michael
Glenn Maynard
2005-06-06 20:46:24 UTC
Permalink
Post by Arnoud Engelfriet
But would <name> ever bring a lawsuit asserting copyright infringement?
His successors might (perhaps especially if they happen to be eg. native
to such a jurisdiction themselves).
--
Glenn Maynard
Andrew Suffield
2005-06-07 13:46:47 UTC
Permalink
Post by Glenn Maynard
Post by Arnoud Engelfriet
But would <name> ever bring a lawsuit asserting copyright infringement?
His successors might (perhaps especially if they happen to be eg. native
to such a jurisdiction themselves).
Worse, "successors in interest" - which would be (eg) Sony, who just
sued your arse for infringing upon their profit margins, and claimed
all your worldly posessions in compensation.

[Bitter? Me? Hell yes]
--
.''`. ** Debian GNU/Linux ** | Andrew Suffield
: :' : http://www.debian.org/ |
`. `' |
`- -><- |
Humberto Massa Guimarães
2005-06-09 16:08:47 UTC
Permalink
Post by Michael K. Edwards
So I think it turns out I was right in the first place: continued
verbatim copying and distribution counts as "utilization", and the
only scope for argument is about how much bug-fixing you can do
after termination without being sued for "preparing" a new
derivative work.
anyway, to take this thread back to the topic, I ask: is there
anything that would be accomplished by a "public domain" license
that is *not* accomplished by putting the work under the MIT
license? I don't think so.

And, if I am right, to avoid license proliferation and other
undesired (and undesirable) interactions with various jurisdictions'
laws, it seems to me that the best thing to do if you want to donate
your work to the public would be putting it under the MIT license.

--
HTH,
Massa
Michael K. Edwards
2005-06-09 17:18:15 UTC
Permalink
Post by Humberto Massa Guimarães
anyway, to take this thread back to the topic, I ask: is there
anything that would be accomplished by a "public domain" license
that is *not* accomplished by putting the work under the MIT
license? I don't think so.
And, if I am right, to avoid license proliferation and other
undesired (and undesirable) interactions with various jurisdictions'
laws, it seems to me that the best thing to do if you want to donate
your work to the public would be putting it under the MIT license.
Actually, I think it's one of the worst. As a unilateral, executory
grant, it's revocable at will under common law, leaving the recipient
with no license to the work. (Even adding an explicit term,
"perpetual" or otherwise, wouldn't change this.) Any privileges under
the grant that have already been exercised, including the right to
create various derivative works and to copy and distribute them, do
not suddenly get reversed; but the only theory under which any further
use may be made of them is equitable estoppel.

Like the post-termination right to "utilize" derivative works that
have already been "prepared", equitable estoppel (reliance to one's
detriment) might be stretched to cover further distribution and
possibly even bug fixes. But it's unlikely to permit further
development of works substantially derived from the original, whether
or not they are already heavily modified by the time the grant is
revoked.

IANAL, etc.; but if you want a license that lasts, you need an offer
of bilateral contract which isn't easily abrogated once accepted. The
GPL, for instance. Or the OpenSSL license, in which the art of the
"obnoxious advertising clause" is raised to a level at which honoring
it probably counts as return consideration.

Cheers,
- Michael
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