Re: comparison of public licenses?

On Sat, Jan 22, 2000, Nate Puri <natepuri[_at_]office.ompages.com> wrote:
>
> On Fri, Jan 21, 2000, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
> >
> > On Thu, Jan 20, 2000, Nate Puri <natepuri[_at_]office.ompages.com> wrote:
> > >
> > > What is uncertain is the manners in which copyright will render one or
> > > more provisions of the GPL type licenses moot.
> >
> > Could you expand on this?
> >
> > IANAL, this is not legal advice.
>
> IANAL, but I am studying for the bar, and copyright is not on it so I
> won't get too deep into this.
>
> Consider the street name of the GPL, 'copyleft.' That sums it up.
> It's an attempt to circumvent traditional copyright. Copyright is
> derived from Art. 1 of the Constitution and traditional common law.
> It is like a universal BSD license that allows you a monopoly on the
> subject matter of your authorship. This is a sin to Stallmanites, and
> they drafted the GPL to attempt to prevent this kind of personal power.
> It is unclear in a dispute between an author of a patch to source code
> and the author of the original source code what the courts would do
> with the patch and or the patched code. Is it derivative and hence a
> new work owned by the patch author or is it restricted by the GPL and
> remains some kind of quasi public domain / IP of original owner? I
> can't answer this, but my initial feeling is that the courts will not
> expand or change copyright for the GPL. The most courts would do is
> hold that it is a contract of which only certain provisions withstand
> the illegality defense to contract. Specific performance of all the
> provisions will not happen to the extent courts find any provisions
> in conflict with existing copyright law.
>
> I think the idea of "open source" needs a lot of treatment by lawyers.
> There should be a subset of copyright law created. And the concepts
> should be fleshed out. It should not be a mere litany of licenses, but
> all the licenses should be evaluated for unique concepts relating to
> software so that lawyers can tailor licenses for the specific needs of
> the author. There is no 'one-size-fits-all' license. Developers may
> have thought that there was, but then all these license iterations
> started to emerge. Now there are two factions: 1) GPL devotees,
> 2) everyone else.
>
> This is a messy new area, and there really should be a law review on
> the whole topic.
>
> If someone cares to pay my bills for the next three months, I'll write
> it. ;).

I have a narrow disagreement with these assertions.

While whether the GPL or some of its iterations could be enforced is an open question, the assertion that derivative works are the copyright of the author of the derivative work is dead wrong.

Absent a provision in the license to the contrary, the author of the derivative work must obtain permission from the copyright holder(s) of the original work. I will agree that the issue becomes fuzzy because of the attempt of the open source code movement to port the work to public domain. But, the main point is that copyright would tend to bolster, rather than weaken, the GPLs' provisions that attempt to dictate control over the distribution of derivative works. In the larger scheme of things, the use of contract law to subvert copyright principles usually bothers me too. However, the open source code movement is not one of those instances.

Rod Dixon, J.D., LL.M.
http://www.cyberspaces.org/
rod[_at_]cyberspaces.org Received on Tue Jan 25 2000 - 01:20:32 GMT