Re: [A bit rambling] Open source licensing being questioned by anti-copyright
types
On 21-06-2010 06:45, Bent C Dalager wrote:
On 2010-06-21, Arne Vajh?j<arne@vajhoej.dk> wrote:
On 31-05-2010 05:55, Bent C Dalager wrote:
The only apparent way to mitigate the impact of copyright over one's
own work is to write very generous license terms for it. As you point
out, this means that your work is still protected under copyright
however generous you are. This is as it must be under the current
legal regime.
There are slightly different rules for copyright around the world,
but the fact is that public domain software is almost universal
de facto recognized.
I don't see that this is the case. What I do see is that there exist a
number of people who would /like/ public domain software to be
achievable, and there are some who act as if it is. You might say that
these people, at least, have de facto recognized public domain softare
but what is the benefit of this? Copyright is governed by copyright
law and I cannot see that the law recognizes the public domain in any
useful fashion when it comes to software (primarily because there is
no significant body of software from before 1930-ish).
Public domain software is very recognized.
Software by US government employees have always been public domain
and recognized as such.
I believe it is rather that they realize they /must/ write a license
because the law effectively requires it of them and then they tend to
tag on a pet provision or two after the "use as you wish" bit of the
open source license.
They could have chose public domain.
Well, that is basically the point under debate: It's not clear that
one "can" choose public domain in this context.
Some people are choosing public domain.
These people could certainly have done the same.
The only thing one can
choose is how to license one's copyrighted work. If you, as an author,
"choose" public domain then I believe that the best case outcome is
that the judge gives you some leeway for not having any legal
education and maps your nonsensical (in the legal sense) choise over
into a very permissive license governed by copyright.
Most of the legal issues are centered about the fact that the
law in many countries does not mention such a concept.
But unless the law explicitly prohibits disclaiming copyright
(which is also does in some countries), then I would expect
it to be possible - the fact that something is not explicit
approved in the law should not mean that it is prohibited.
Why is it that software which has the most generous license term
possible under the law (that is, no conditions), cannot be "open
source"? Surely if it were /possible/ to release source code into the
public domain then this would be just as open as an open source
license is?
Because the open source license gives some rights.
What rights are these, and who benefits from them?
It varies between licenses.
But the general purpose is to give the users certain rights.
(in a few cases also certain obligations)
But of course they would: closed source would be protected as a trade
secret, which is effectively what is happening already anyway, and any
source that anyone actually distributed would be open source by
default.
Would it be a material change to protect closed source by
trade secret instead of copyright?
The material change would be that any source code you could get your
hands on would be yours to use as you wish, unless of course you
obtained it through industrial espionage.
If it is sufficient that you did not do the industrial espionage
yourself to be allowed to use the code, then I think industrial
espionage would be a very profitable business.
If it need to be clean all the way, then it would be very
challenging to use software, because without any license
information how do you know where the code came from.
While the estimates vary, around 80% of the software industry consists
of various in-house projects: Customer tracking, inventory management,
project reporting, niche expert systems, etc. This 80% of the industry
would benefit greatly from the absence of copyright since they don't
need it anyway: their software is only applicable to, distributed
within, and used by their own organisation. The absence of copyright
would make their job much easier - and less expensive - by not forcing
them to reinvent the same wheel that hundreds of others have already
designed to death time and time again before them.
The problem is that even though a lot of software is only used
inhouse, then most companies do not want to reject the possibility
to at some later point in time sell the software to external
customers.
To the extent that this possibility appears as an asset at all, if it
is given a realistic value it must be very very small indeed. From
what I have seen, in-house software projects tend to be completely
unsuitable for distribution to any other than the primary client and
would take gargantuan effort to change into a sellable product.
Often it is.
But the companies does not think so.
It is like driving - some survey showed that 90% of people believe that
they drive better than average.
Otherwise corporations would rarely have a problem with GPL!
I expect the GPL resistance has very much to do with some fundamental
misunderstandings about how the GPL actually works. Surprisingly many
people seem to think that if they develop a GPL application then they
are automatically required to distribute it to the world and provide
support for it to anyone who asks. An accountant who actually believes
this will quickly point out that it effectively amounts to unlimited
liability and advise strongly against going anywhere near such a
license.
I think you are underestimating the corporate lawyers.
Arne