Licensing and public performance
G'day all. I'm co-writing some software that is only really useful in a certain media industry which doesn't have a history of being very "open" with their source. If it is used within the industry, it will very likely be internally modified by media producers and used to produce works, and the modified versions will almost certainly not be distributed. I'd like to prevent this, but also, obviously, I'd prefer not to trample on fair use. I suspect that the answer lies in restricting "public performance". So let me ask the lawyers and non-lawyers: Could I license a program so that if you distribute a work which was created using a modified version of the software (which could be considered as "public performance" of the software), you must redistribute the modifications that you made? And would it violate the OSD? Cheers, Andrew Bromage
Re: Licensing and public performance
G'day all. On Mon, Apr 03, 2000 at 05:53:20PM -0700, Seth David Schoen wrote: There have been some rumors that version 3 of the GNU GPL may require disclosure of source code in some cases of public performance. I have also heard these rumours. I believe that this is intended to deal with server-based applications. I am not sure whether or not the situation you describe counts as public performance. Nor am I. I suspect that it would depend on how much the software is used in the work, and what role it plays. For example, if you produce a recording of some synthesised music on recorded onto a writable CD, I would guess that the final work may count as a public performance of the synthesis software but most likely not of the CD recording software. The OSD has no particular comment on this, although many people have felt that it is inappropriate to use a license to violate the privacy of the users of some software package. There may be media-creation software "out there" whose licences require that works created using the software include a credit. Could anyone who uses such software please take a look at their licences to see if they do? Mind you, that might be based on shrinkwrap agreements rather than appealing to "public performance". As for the OSD's comment, I was worried that it might be discriminatory against fields of endeavour: those producing media for distribution with this software have to redistribute the software, but others do not. That looks too much like "commercial users must redistribute the source but non-commercial users don't have to". Cheers, Andrew Bromage
Re: Licensing and public performance
Andrew J Bromage writes: The OSD has no particular comment on this, although many people have felt that it is inappropriate to use a license to violate the privacy of the users of some software package. There may be media-creation software "out there" whose licences require that works created using the software include a credit. Could anyone who uses such software please take a look at their licences to see if they do? Mind you, that might be based on shrinkwrap agreements rather than appealing to "public performance". As for the OSD's comment, I was worried that it might be discriminatory against fields of endeavour: those producing media for distribution with this software have to redistribute the software, but others do not. That looks too much like "commercial users must redistribute the source but non-commercial users don't have to". Interestingly, the GNU GPL sort of does that: c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.) More specifically, noncommercial distribution is exempted, some of the time, from source code distribution responsibilities under the GPL (if an upstream distributor has made the source code distribution offer under 3(b) of the GPL, instead of distributing source code under 3(a) as would be nice). Why does nobody feel that this is an OSD violation? Is it because it's traditional, or just because it feels reasonable (and because it's an exception for some people, rather than an additional burden)? Does it feel reasonable _because_ it's traditional? How many people ever actually consciously exercise a right under the GPL's 3(c)? It's still not clear to me -- and has never been really clear -- whether the OSD prohibitions on discrimination only apply to discrimination which could make software non-free for some class of users, or whether they apply to _all_ discrimination, because discrimination is perceived as wrong. The truth in practice and public opinion and intuition has seemed to be somewhere in between. I was involved in OSI certification of at least one license which said that commercial users agreed to indemnify contributors against liability arising out of the commercial users' use of the software. However, noncommercial users were not required to indemnify anyone (if I remember correctly). This seemed fair, intuitively, but it is certainly discriminatory, and certainly someone could object to it. I often have the feeling that the OSD ought to be revised periodically by on-going discussions similar to the discussions which resulted in its creation. There are still a few situations which present real ambiguities for interpreting the OSD. -- Seth David Schoen [EMAIL PROTECTED] | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5
Re: Licensing and public performance
On Mon, 03 Apr 2000, Andrew J Bromage wrote: I'd like to prevent this, but also, obviously, I'd prefer not to trample on fair use. I suspect that the answer lies in restricting "public performance". So let me ask the lawyers and non-lawyers: I would be very leery of basing terms upon "public performance" without clearly defining what a public performance is. If it means you can restrict the normal manner in which one uses the program, you've just violated the first definition of Free Software. On the other hand, if the public performance in question is not the normal use, you can get away with it. But I think that it's a moot point. If your intended users won't distribute their modifications anyway, creating a new license won't help matters any. You might want to go a split-licensing route. Have an OSD license that demands they play nice (the kindergarten teacher license), or charge them good money for a license that lets them keep their modifications secret (the tanstaafl license). -- David Johnson... _ http://www.usermode.org
