subject:"\[OT\] Droit d'auteur vs. free software"

Re: [OT] Droit d'auteur vs. free software?

2003-05-29 Thread James Miller

 --- Kai Henningsen [EMAIL PROTECTED] からのメッ
セージ：
 [EMAIL PROTECTED] (Nathanael Nerode)  wrote on
 19.05.03 in [EMAIL PROTECTED]:
 
  How different are things really on the Continent? 
 Is *everthing* codified?

[...]

The important point being drawn out here is that the
common law (U.S. U.K. et al) tradition relies on a notion
of law drawn from a variety of sources but with special
emphasis on past opinions of Courts, eg. precedent or
stare decisis.

In the continental or civil law approach drawing on
Roman iustinian code and other traditions, laws are those
found on the books, and the role for justices of a court
has traditionally been much more constrained.

Jurisdictions like Japan, Israel, and Canada I find
especially interesting because they tend to mix these
approaches more liberally.

Note Japan, for example, who's statutes are called the
ROPPO or six books after the German legal codes adopted
during the Meiji Restoration in the 1860's.  Despite this
strong civil law tradition today there is a revolution in
attorney licensign and a strong emphasis on modelling new
legal practice on the common law approach.

Also it's of note that many here in the U.S. also observe
that there are ebbs and flow on emphasis on statutory
(civil codes) and Court based precedent.  Two good
examples are debates on what to do about IP and anti-trust
(competition) law.  Some argue make property rights
robust, well defined, and rely on the courts to work
things out.  Others argue for more interventionary
(regulatory) approaches with laws to spell out the
permitted and prohibited acts.

Google will give you mostly Law School syllabus refs, but
you can glean something here on Comparative law discussion
of civil/common law. 
http://www.ejil.org/journal/Vol10/No1/br10.html.  

Also Luke Nottage, COMMENT ON CIVIL LAW AND COMMON LAW:
TWO DIFFERENT PATHS LEADING TO THE SAME GOAL, provides an
interesting discussion of maybe how things aren't usually
all that different in practice anyway.. 
http://www.upf.pf/recherche/fichiers%20RJP7/17Nottage.doc


 Please note that Germany is neither common law nor
 Napoleonic Code. We  
 have our own legal traditions. (Going back to Rome,
 in fact.)

[legal vs. sittenwidrig discussion]

I agree it is not Napoleonic.  You would agree it is a
civil law jurisdiction, though right?

 Really, Europe is much more diverse legally than
 people seem to think.

I agree; a very important point.

It is a common problem to accept propositions based on I
read in xx that yy is illegal kind of research and
analysis.

There may certainly be circumstances where such
conclusions will be warranted but *unfortunately* the
law is in practice usually much more complicated to nail
down.  None to often it takes a case in your jurisdiction
to give you a definitive response.

I do read that there are a variety of efforts in the EU
moving codes to harmonization.  IP is an obvious example. 
Perhaps you could comment on this trend?

 MfG Kai

--
James Miller
[EMAIL PROTECTED]


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Re: [OT] Droit d'auteur vs. free software?

2003-05-27 Thread Kai Henningsen

[EMAIL PROTECTED] (Nathanael Nerode)  wrote on 19.05.03 in [EMAIL PROTECTED]:

 How different are things really on the Continent?  Is *everthing* codified?
 Perhaps it is; I believe the French (Napoleonic Code) system requires
 *every* ruling to be based on a specific article of the code.

Please note that Germany is neither common law nor Napoleonic Code. We  
have our own legal traditions. (Going back to Rome, in fact.)

In Germany, you can fail to obey specific law, or you can do something  
sittenwidrig (approx. immoral, literally against custom) - the  
latter is, I believe, only relevant in civil law. However, the supreme  
court sometimes finds stuff written in our constitution that you would  
have sworn wasn't actually in there ... both good and bad.

Really, Europe is much more diverse legally than people seem to think.

MfG Kai

Re: [OT] Droit d'auteur vs. free software?

2003-05-27 Thread Kai Henningsen

[EMAIL PROTECTED] (Nathanael Nerode)  wrote on 03.05.03 in [EMAIL PROTECTED]:

 Basically, it's a free speech issue.  The concept that authors and their
 heirs have inherent rights of control over their writings, in eternity
 (which is the basic concept of the system) is effectively in opposition
 to freedom of speech, as it requires all ideas to be recast so as to
 avoid the use of the forms used by anyone else, throughout history.

Which parts of Europe are we talking about here?

As far as I can tell, German Urheberrecht is pretty close to the Berne  
Convention (we were, after all, among the first nations to ratify it) and  
does not seem to recognize any such eternal rights.

All our constitution (Grundgesetz) says about it is that it is the sole  
responsibility of the federal level (i.e. out of bounds for the states)  
(73(9)).

As for the Urheberrecht itself, the key points are:

(1) Die Urheber von Werken der Literatur, Wissenschaft und Kunst genießen  
für ihre Werke Schutz nach Maßgabe dieses Gesetzes.

(The originators of works of literature, science, and art, enjoy  
protection for their works in accordance with this law.)

(28(1)) Das Urheberrecht ist vererblich.

(Copyright is inheritable.)

(64) Das Urheberrecht erlischt siebzig Jahre nach dem Tode des Urhebers.

(Copyright ceases 70 years after the death of the originator.)

[Incidentally, I believe these points are substantially unchanged from the  
state of law in the Weimar Republic, i.e. before WW II, long before the US  
recognized the Berne Convention; including the number of 70 years (Berne  
says 50). That is, the number is neither an invention of Disney nor (as is  
sometimes claimed) a way for Bavaria to keep rights for Mein Kampf - the  
number was already in effect when that book was written, and has not  
changed in the meantime. I suspect it is older than (working) digital  
computers.]

All in the same law. I don't see anything eternal here. And in any case,  
if it were about natural rights it would belong in the rights part of the  
constitution, and it's not there. (All that says about it is that art is  
free (from censors, that is).)

The right to freely express your opinion is a fundamental right. Copyright  
is just a law. (Which means that it's rather hard for copyright to intrude  
on free speech, of course.)

Yet this law does recognize some rights that cannot be conferred to  
someone else (except by inheritance).

MfG Kai

Re: [Way OT] Droit d'auteur vs. free software

2003-05-27 Thread Nathanael Nerode


Kai Henningsen said:

Which parts of Europe are we talking about here?

Those with French-style moral rights, I guess.

[Discussion of German copyright/moral rights basis snipped]
So German law seems very good on this point. :-)

[Incidentally, I believe these points are substantially unchanged from the  
state of law in the Weimar Republic, i.e. before WW II, long before the US  
recognized the Berne Convention; including the number of 70 years (Berne  
says 50). That is, the number is neither an invention of Disney nor (as is  
sometimes claimed) a way for Bavaria to keep rights for Mein Kampf - the  
number was already in effect when that book was written, and has not  
changed in the meantime. I suspect it is older than (working) digital  
computers.]
It's not life+70 which is an invention of Disney; it's the 95-year 
copyright given retroactively to pre-1976 works in the US which is an 
invention of Disney. *frown*


--Nathanael

Re: [OT] Droit d'auteur vs. free software? (Was: query from Georg Greve of GNU about Debian's opinion of the FDL

2003-05-23 Thread Stephane Bortzmeyer

On Wed, Apr 30, 2003 at 11:00:48AM -0400,
Jeremy Hankins [EMAIL PROTECTED] wrote
a message of 15 lines which said:

Since there's been a lot of talk about the difficulty in making a
distinction between software and non-software, do you know how the law
you're referring to makes this distinction? Where would fonts,
javascript embedded in html, latex source, postscript, etc, fit into
this scheme?

Tough question. I just studied it and here is the result (warning:
most software engineers will not find the reply satisfactory, see the
soap box).

legalRemember, IANAL./legal

First, the only pan-European text I can find is Council Directive
91/250/EEC of 14 May 1991 on the legal protection of computer
programs
URL:http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoclg=ennumdoc=31991L0250model=guichett.
This directive, which every European Union country is supposed to
implement, says only one thing which seems related to your question:

Whereas, for the purpose of this Directive, the term 'computer
program` shall include programs in any form, including those which are
incorporated into hardware; whereas this term also includes
preparatory design work leading to the development of a computer
program provided that the nature of the preparatory work is such that
a computer program can result from it at a later stage;

It clearly does not address your problem. Let's turn now to
French-specific law. There is no general definition of a program (see
the soapbox later). The closest things we find are:

* JONC, 17 janvier 1982, p. 624. A terminology document (French
language is specified in the Journal Officiel, the paper which
publishes laws and decrees...) which says that Logiciel [software]:
L'ensemble des programmes, procédés et règles et éventuellement de la
documentation, relatifs au fonctionnement d'un ensemble de traitement
de l'information.

* BODGI 4 C-7.84. A tax regulation about software which gives a
definition (almost the same).

In both cases, the associated documentation is mentioned (which seems
that the case of the Emacs manual is settled: it is regarded as a
program and hence not subject to the full extent of moral rights).

The case of documentation embedded in a program (Lisp or Python
docstrings) is also quite clear: it is part of the program.

The case of a text outside of a program (such as a lecture on dynamic
routing like
URL:http://www.nic.fr/formation/supports/formation-routagedyn/ which
is under the GFDL) is still open but it is clearly not software.

The funny cases like a novel implemented as an ebook are still open.

Soap box: law is not computer science. Most terms used in law are
never defined somewhere. This is because, unlike programs, law is
processed by humans, not by computers. And it is also because it needs
to be flexible enough to cover future cases without requiring an
update of the law (it would be ridiculous to write in law texts a list
of technologies such as a list of file formats, for instance: it
changes too fast).

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