Re: [License-discuss] Companies that encourage license violations
On 9/16/2015 11:32 PM, John Cowan wrote: >> Doesn't that mean that the word "irrevocable" is meaningless? We don't >> like words without meaning in contracts, especially one so central to >> the entire premise of free software. > It's my view (and I'm not alone in this) that the vast majority of free > software licenses are not contracts at all, and are like licenses to > enter upon land: that is, they are permissions by the owner to do things > that would otherwise be forbidden to all by the owner's proprietary rights > in the property. As such, they are not supported by consideration and > can be revoked at the will of the licensor. Most proprietary licenses > are not like this: the license is provided in exchange for obvious > consideration in the form of money paid by the licensee. Without entering into that quagmire (other than to quote Heather Meeker, "The Free Software Foundation has long taken the position that open source licenses are licenses rather than contracts -- however, this can be misleading because the two are not mutually exclusive. Most licensing contracts are both conditional licenses and contracts"), my use of the word "contract" was simply inapt. The principle applies in the interpretation of all types legal documents. Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 9/5/2015 2:24 PM, John Cowan wrote: > Pamela Chestek scripsit: > >> I think this statement is a fallacy, but I'm happy to hear other >> opinions. A license attaches to the intangible copyright, not to the >> tangible copy of the work you received. So as long as I can show that >> the same copyrighted work was available under a license, and that I am >> in compliance with the license, then I am a licensed user no matter >> where I got my copy of the work. > That can't be right. Consider a work available under GPL+proprietary > terms, where you get to do non-GPL things if you have paid. Then it would > not be enough to show that the work was available under a proprietary > license to allow you to download it and do those things. > Sure I could, if it was a license that was offered to me and I complied with the terms (including paying); my performance manifested my acceptance of the offer. Same with a FOSS license, it is an offer and I accept through performance. Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 9/8/2015 5:14 PM, Kevin Fleming wrote: > The genesis of my statement (which I purposely left ambiguous because > IANAL and IANYL and many here are) is that a set of source files that > do not have any copyright/license statements included and a set that > do have such statements included could easily be considered *different > works*, because they contain different content. The content difference > may be immaterial to the usage of the code (it certainly doesn't > affect compilation or execution of the code), but it's still > different. It might even be reasonable to claim that the version with > the statements is a derivative work of the one without the statements, > even if produced by the copyright holder(s). Interesting theory. I would say not though, because the addition of the copyright/license statements are not original enough to make the new work with the addition or omission a derivative work, and also for the reasons you mention, that they don't actually affect the work. It would be like saying that a second edition, with new title page listing the new year of publication and different publisher, would be a derivative work of, or a different work from, the first edition. Without doing any legal research (which is guaranteed to get me into trouble), my guess is that courts have decided that insignificant changes don't make it a new work.[1] > Given that, if someone has a copy of the version without such > statements, I'd personally recommend (and certainly do in my day job) > that finding another copy elsewhere that has such statements is > immaterial. This usually doesn't matter when the discussion occurs > before any potentially infringing activity has occurred, since we can > just tell the user to go download the copy with the license > statements, but after the fact I'd be quite surprised that > demonstrating the existence of the other copy would be sufficient. This is one of my favorite subjects, whether to have a license you need to know that it existed at the time you copied or not. I don't think so, the copyright owner put the work out there with a promise not to sue, so I don't know why I would need to be aware of the promise to claim the benefit of it. Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com [1] Ok, I lied. It rang a bell and I looked it up. Not quite on all fours but in the recent Creative Commons case where the photographer argued that cropping his photo created a derivative work, the court said "Any discernible cropping appears to be 'so minor and insubstantial that as a matter of law it falls within that degree of latitude afforded licensees to alter a copyrighted work to suit their style or the medium in which the work is presented.'" /Drauglis v. Kappa Map Group, LLC,/ 2015 U.S. Dist. LEXIS 108992, *21 (D.D.C. Aug. 18, 2015). ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 9/6/2015 1:03 PM, John Cowan wrote: > Lawrence Rosen scripsit: > >> What non-GPL things are you talking about? > Insofar as I can reconstruct my thinking of last night (post in > haste, repent at leisure), I was thinking of the ordinary proprietary > opt-out clause letting you incorporate Yoyodyne's library into your > binary-only program. I suppose that Yoyodyne could require you to keep > the proprietary-licensed copy to yourself, even though it's bit-for-bit > identical with the GPLed version and has a common origin. Well, since you can't (or don't want to) comply with the copyleft provision, you can't rely on the FOSS license, so you have to comply with whatever other license you can get, which may include not disclosing the code. Although that seems kind of silly to require, since the code is public. > >> But a more general GPL work available publicly (e.g., Linux) is and >> remains under the GPL forever. > In my non-lawyer opinion, the irrevocability clause of GPL3 hasn't got a > leg to stand on. If I put up a sign on my land saying PUBLIC ACCESS > PERMITTED and then take it down before prescription kicks in, the > fact that the sign also said THIS SIGN WILL NOT BE TAKEN DOWN doesn't > seem to help someone I sue for trespass, except through the exceedingly > dodgy mechanism of equitable estoppel (or quasi-contract in Roman lands). > Doubtless if they were actually in transit when I revoked the permission Doesn't that mean that the word "irrevocable" is meaningless? We don't like words without meaning in contracts, especially one so central to the entire premise of free software. > >> It becomes confusing when a company adds *incompatible* proprietary >> terms to the GPL for a publicly available work. Is this a contract that >> any company can negotiate with its customers? Is that ever effective >> at restricting GPL freedoms? > I admit that such a thing is economically improbable, but I don't see what > grounds a court would have for treating it as voidable, never mind void. > (I'm assuming that any contract under the GPL only kicks in when you > exploit a GPL right; otherwise the pre-announced GPL would be superseded > by the proprietary contract anyway.) If you're not getting any benefit not already available under the GPL then I would argue the proprietary contract is void for lack of consideration. > >> But I'd also try to avoid *contractual* litigation by never agreeing >> to *restrictive* proprietary contracts for GPL software. Don't contract >> away your free software. I've never seen anyone actually try to do that, >> which is why I'm confused by John Cowan's comment. > I haven't heard of it either, but that may only be only because people > don't usually announce that they've been snookered. Java BCL, anyone? Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
On 3/10/2015 12:55 PM, co...@ccil.org wrote: Fortunately, books are also sold -- at least so far, though nothing stops book publishers from putting the same sort of notice into each copy of a book and gutting the used-book market. A Supreme Court case does: The precise question, therefore, in this case is, does the sole right to vend (named in § 4952) secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum? We do not think the statute can be given such a construction, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation, nor license agreement controlling the subsequent sales of the book. In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350 (U.S. 1908). So at least they'd have to shrink-wrap it --- Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
On 3/11/2015 1:58 PM, co...@ccil.org wrote: I think the Supremes would consider that case irrelevant today if they had the opportunity to overrule it, because it depends on the exclusive right to vend that is conferred in the 1831 Act and in the 1909 Act, but not present in the 1976 Act. Quite the contrary, cited as a fundamental case on first sale in Kirtsaeng: A law that permits a copyright holder to control the resale or other disposition of a chattel once sold is similarly “against Trade and Traffi[c], and bargaining and contracting.” ... The “first sale” doctrine also frees courts from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods. And it avoids the selective enforcement inherent in any such effort. Thus, it is not surprising that for at least a century the “first sale” doctrine has played an important role in American copyright law. See Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 6 Ohio L. Rep. 323 (1908); Copyright Act of 1909, §41, 35 Stat. 1084 The common-law doctrine makes no geographical distinctions; nor can we find any in Bobbs-Merrill (where this Court first applied the “first sale” doctrine) or in §109(a)s predecessor provision, which Congress enacted a year later. See supra, [1364] at ___, 185 L. Ed. 2d, at 405. Kirtsaeng v. John Wiley Sons, Inc., 133 S. Ct. 1351, 1363-1364 (U.S. 2013) If the license were printed on the cover, the supposed buyer would be in a pickle trying to prove that paying the price didn't constitute acceptance of the license. Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
But that's the acceptance by breaking the wrapper, not just by virtue of being printed. And the printed for promotional use on cds was held not an enforceable license. Pam Sent from my T-Mobile 4G LTE device -- Original message-- From: John Cowan Date: Wed, Mar 11, 2015 8:53 PM To: license-discuss@opensource.org; Subject:Re: [License-discuss] Reverse Engineering and Open Source Licenses Pamela Chestek scripsit: Do you have an example where paying for a tangible article has been construed by a court as contractual acceptance of a restrictive term printed on it? Isn't boxed software a tangible article? If the box doesn't count, the CD/DVD surely does. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org How comes city and country to be filled with drones and rogues, our highways with hackers, and all places with sloth and wickedness? --W. Blith, Eng. Improver Improved, 1652 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Reverse Engineering and Open Source Licenses
On 3/11/2015 5:48 PM, Lawrence Rosen wrote: DANGER: Poison inside! I would go with assumption of risk on that one. :-) Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com Board Certified by the NC State Bar's Board of Legal Specialization in Trademark Law ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] System 76's BeanBooks Public License v1.0
On 9/18/2013 4:08 PM, Ken Arromdee wrote: On Wed, 18 Sep 2013, John Cowan wrote: Sec. 4.3 strikes me as actually conceptually somewhat interesting, inasmuch as many commercial lawyers have argued that this type of clause is often implicit in software that contains a protect trademark embedded in the software and not removed by a downstream licensee. In this case, however, Section 4.2 prevents you from removing the protected trademark. Taking the two clauses together, you are effectively prevented from making commercial use of the software without paying for the trademark license, which obviously contravenes clauses 6 and 7 of the OSD. So this license is on its face not Open Source. It says: 4.3 - Commercial distribution of the Software requires a trademark license agreement and you may be required to pay. Using the Software within a corporation or entity is not considered commercial distribution. This license does not grant You rights to use any party's name, logo, or trademarks, except solely as necessary to comply with Section 4.2. Wouldn't the except solely as necessary to comply with section 4.2 clause make it okay? Section 4.2 prevents you from removing the protected trademark, and section 4.3 allows you to use the trademark under those circumstances. I believe the restriction in 4.3 violates the OSD, specifically OSD 5 or 6 (but you all have much more experience with how each of these are interpreted, so perhaps you will disagree). 4.2 applies to the use of the trademarks in the software only, but 4.3 tries to restrict use of the trademarks more broadly in a commercial context. As an example, trademark law allows the resale of genuine product without any kind of license. So in the open source context, I should be able to take unaltered software and state on my website and in advertising materials that I am distributing the genuine software. It appears to me that this provision tries to prohibit this lawful use by contractually requiring a license for it. So it treats a commercial enterprise differently from a non-commercial enterprise (whatever that distinction is because I'm not sure); if I am non-commercial I can advertise that I distribute the software but if I am commercial I can't without paying for a trademark license. In my opinion, if there is no statement in a license about trademarks then the assumption should be there is no trademark license. Some licenses, like the Apache license, say the same thing expressly, to avoid any question (I think a good practice). What happens then in both these cases is that use of the trademark by anyone is a matter of whether it is a lawful use or not. But this license goes further than that by arguably prohibiting lawful uses too. Pam Pamela S. Chestek, Esq. Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Open source license chooser choosealicense.com launched.
On 8/19/2013 1:48 PM, Engel Nyst wrote: Hello license-discuss, Please allow me to ask the impossible question: how would you write the summary of GPLv3 vs GPLv2 in 8-16 words? No need to be so parsimonious -- the current blurb is 44 words. Pam Pamela S. Chestek, Esq. Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Open source license chooser choosealicense.com launched.
On 8/18/2013 10:21 PM, Richard Fontana wrote: I really believe it is best for anyone to try to read the actual license in question. A summary can be a reasonable starting point, but it especially bothers me if it is distorted (as I think it may almost always be) by political or cultural bias. This can be fixed. Github has asked for patches and no one has reported having a patch rejected. Also, if a license is really too difficult to understand, that is itself useful (for the would-be licensor and for the license steward) to find out. I'm still having a hard time reconciling this with the also-held belief that license proliferation is bad. So you would like people to read and comprehend, we'll say conservatively the 11 Popular Licenses, and find one that has the major substantive aspects they want but that also does not have any aspect that could use some tweaking for their own business model -- say, for example, a delayed release date of source code, which will mean they will write another license, or find another obscure license that does what they want but is obscure for a reason. I think instead you want licenses to be readily adopted based on decision about the major substantive aspects and the rest of it just falls where it falls. And the major substantive aspects are what is captured in the summary. Pam Pamela S. Chestek, Esq. Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Open source license chooser choosealicense.com launched.
On 8/17/2013 9:38 PM, Richard Fontana wrote: Speaking just for myself, it is difficult for me to imagine any license chooser or license explanation site that I wouldn't think was more problematic than useful. Linking to a*wide* variety of license choosers or summary sites with a very strong caveat emptor statement might be okay. Because you are so intimately familiar with the licenses and know every feature and blemish, so you seek the perfect when maybe we should only aspire to the better-than-nothing. Maybe not; I read your slides and take your point that nothing isn't really all that scary. But I'm having a little difficulty reconciling the concepts that a narrower choice of tested licenses is better (i.e., license proliferation is bad) but we're not going to help you understand how these licenses work so you can make a better-informed, albeit perhaps not perfect, choice. Pam Pamela S. Chestek, Esq. Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Open source license chooser choosealicense.com launched.
On 8/15/2013 10:17 AM, Bradley M. Kuhn wrote: I was told GitHub's chooser accepts patches, and I was planning at some point to try to patch out this bias myself and see if my patch was accepted -- but of course any patch I produce is going to have subtle copyleft biases -- which I think was Fontana's point. Why cannot an advocate for each license write a short blurb with the benefits and burdens of their own license? I don't think there's anything wrong with all the choices being positively-biased. Pam Pamela S. Chestek, Esq. Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
[License-discuss] Minor change to website
Apologies in advance if this is the wrong list -- I was looking at the Open Source Licenses page (http://opensource.org/licenses) and had one moment of ambiguity -- the headings are Popular Licenses and Other Approved Licenses. I found the word other to be misleading; the licenses that are listed under Popular are also on the page for Other licenses - as they should be, but the word other suggests they wouldn't be. Should other be changed to All perhaps? Pam -- Pamela S. Chestek, Esq. Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
