Re: [A bit rambling] Open source licensing being questioned by anti-copyright
types
On 31-05-2010 05:55, Bent C Dalager wrote:
On 2010-05-31, Arne Vajh?j<arne@vajhoej.dk> wrote:
On 30-05-2010 08:45, Bent C Dalager wrote:
On 2010-05-30, Arne Vajh??j<arne@vajhoej.dk> wrote:
Since open source requires copyright then no copyright means
no open source.
If open source "requires" copyright then it is only because in the
current legal regime copyright is mandatory.
Copyright is not mandatory.
It is perfectly legal to put code in public domain.
How do you propose to do this? The Berne Convention clearly says that
all works that can be covered by copyright are covered by default. The
only mention of the public domain in the convention is in saying that
expired works enter into the public domain. There is no provision for
explicitly entering a work into the public domain before its expiry
date.
Furthermore, my own national laws stipulate that a subset of the
privileges offered by copyright are inalienable, that is you could not
sign them away even if every fibre of your being trembled with desire
to do so: The law won't let you.
I do not see that there is any way for an author to put his work into
the public domain. He might write "this work is in the public domain"
on the front page of course but it is not clear that this holds any
legal weight at all and indeed my own country says you still keep
certain inalienable copyright privileges over it.
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.
Open source chose not to do so.
Because they want to have some license conditions.
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.
Some code writer do choose that.
Some choose an open source license.
No copyright => no license conditions => no open source.
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.
It does help, of course, that copyright is such a huge and
indiscriminate sledgehammer you can use it to kill just about
/anything/, including copyright. Open source will tend to use the best
tool for the job even if that tool is copyright.
Open source does not kill copyright. They just use copyright for
a different purpose than MS, IBM, Oracle etc. (or should I say for
those companies close source offerings - they do have open source
offerings as well).
Open source developers certainly have a varied set of motivations for
their chose of license; some would prefer to have their license
destroy copyright while others believe copyright is essential for them
to earn a living.
Neither patents nor copyright are needed for software development to
thrive so it seems to me your conclusion is based on false premises.
Neither traditional closed source nor open source would be possible
without copyright.
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?
I am not aware of any company making a living from public domain
software.
Based on that I am very skeptical about software industry in a world
with no copyright.
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.
Otherwise corporations would rarely have a problem with GPL!
Arne