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Don't put your software in the public domain

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  Don't put your software in the public domain Steven D'Aprano <steve@pearwood.info> - 2016-06-02 00:59 +1000
    Re: Don't put your software in the public domain Marko Rauhamaa <marko@pacujo.net> - 2016-06-01 18:44 +0300
    Re: Don't put your software in the public domain Lawrence D’Oliveiro <lawrencedo99@gmail.com> - 2016-06-01 13:45 -0700
      Re: Don't put your software in the public domain John Wong <gokoproject@gmail.com> - 2016-06-01 17:00 -0400
        Re: Don't put your software in the public domain Steven D'Aprano <steve+comp.lang.python@pearwood.info> - 2016-06-02 13:38 +1000
      Re: Don't put your software in the public domain Steven D'Aprano <steve+comp.lang.python@pearwood.info> - 2016-06-02 13:43 +1000
    Re: Don't put your software in the public domain Gregory Ewing <greg.ewing@canterbury.ac.nz> - 2016-06-02 18:41 +1200
      Re: Don't put your software in the public domain Steven D'Aprano <steve@pearwood.info> - 2016-06-02 21:56 +1000
        Re: Don't put your software in the public domain Chris Angelico <rosuav@gmail.com> - 2016-06-02 22:04 +1000
          Re: Don't put your software in the public domain Marko Rauhamaa <marko@pacujo.net> - 2016-06-02 15:26 +0300
            Re: Don't put your software in the public domain Lawrence D’Oliveiro <lawrencedo99@gmail.com> - 2016-06-02 18:11 -0700
      Re: Don't put your software in the public domain Robin Becker <robin@reportlab.com> - 2016-06-02 13:52 +0100
      Re: Don't put your software in the public domain Steven D'Aprano <steve@pearwood.info> - 2016-06-03 19:53 +1000
        Re: Don't put your software in the public domain Michael Torrie <torriem@gmail.com> - 2016-06-03 07:14 -0600
          Re: Don't put your software in the public domain Steven D'Aprano <steve@pearwood.info> - 2016-06-04 12:02 +1000
            Re: Don't put your software in the public domain Random832 <random832@fastmail.com> - 2016-06-04 23:46 -0400
        Re: Don't put your software in the public domain Lawrence D’Oliveiro <lawrencedo99@gmail.com> - 2016-06-03 09:15 -0700
          Re: Don't put your software in the public domain Nobody <nobody@nowhere.invalid> - 2016-06-03 21:58 +0100
            Re: Don't put your software in the public domain Lawrence D’Oliveiro <lawrencedo99@gmail.com> - 2016-06-03 18:10 -0700
              Re: Don't put your software in the public domain Paul Rudin <paul.nospam@rudin.co.uk> - 2016-06-04 09:04 +0100
            Re: Don't put your software in the public domain Steven D'Aprano <steve@pearwood.info> - 2016-06-04 12:28 +1000
              Re: Don't put your software in the public domain Nobody <nobody@nowhere.invalid> - 2016-06-06 06:54 +0100
                Re: Don't put your software in the public domain Paul Rudin <paul.nospam@rudin.co.uk> - 2016-06-06 13:36 +0100
                Re: Don't put your software in the public domain Steven D'Aprano <steve@pearwood.info> - 2016-06-07 01:59 +1000
            Re: Don't put your software in the public domain Paul Rudin <paul.nospam@rudin.co.uk> - 2016-06-04 08:24 +0100
              Re: Don't put your software in the public domain Marko Rauhamaa <marko@pacujo.net> - 2016-06-04 11:24 +0300
                Re: Don't put your software in the public domain Terry Reedy <tjreedy@udel.edu> - 2016-06-04 15:12 -0400
                  Re: Don't put your software in the public domain Marko Rauhamaa <marko@pacujo.net> - 2016-06-05 00:26 +0300
          Re: Don't put your software in the public domain Steven D'Aprano <steve@pearwood.info> - 2016-06-04 12:12 +1000
          Re: Don't put your software in the public domain Paul Rudin <paul.nospam@rudin.co.uk> - 2016-06-04 08:20 +0100

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#109457

On Sat, 4 Jun 2016 06:58 am, Nobody wrote:

> OTOH, a Free software licence is unilateral; the author grants the user
> certain rights, with the user providing nothing in return.

That's not the case with the GPL.

The GPL requires the user (not the end-user, who merely avails themselves of
their common law right to run the software, but the developer user, who
copies, distributes and modifies the code) to do certain things in return
for the right to copy, distribute and modify the code:

- you must forgo your right to keep your derived work a trade secret;

- you must keep copyright licences intact;

- you must attach certain notices (the GPL itself);

- you must make the source code to your derived work available to your
users, in certain ways (e.g. distributed together with the application) but
not others (locked in a filing cabinet at the bottom of a disused mineshaft
in Patagonia).

The courts in Germany have already found that the GPL satisfies the
conditions to be considered a contract; it is likely that so would US
courts.




-- 
Steven

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#109541

On Sat, 04 Jun 2016 12:28:33 +1000, Steven D'Aprano wrote:

>> OTOH, a Free software licence is unilateral; the author grants the user
>> certain rights, with the user providing nothing in return.
> 
> That's not the case with the GPL.
> 
> The GPL requires the user (not the end-user, who merely avails themselves
> of their common law right to run the software, but the developer user, who
> copies, distributes and modifies the code) to do certain things in return
> for the right to copy, distribute and modify the code:

The GPL places limitations on the granted licence. That isn't the same
thing as requiring the distributor to do something "in return".

This is why the (relatively few) cases where GPL infringements have
resulted in litigation, the legal basis of the litigation is copyright
infringement, not breach of contract.

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#109558

Nobody <nobody@nowhere.invalid> writes:

> On Sat, 04 Jun 2016 12:28:33 +1000, Steven D'Aprano wrote:
>
>>> OTOH, a Free software licence is unilateral; the author grants the user
>>> certain rights, with the user providing nothing in return.
>> 
>> That's not the case with the GPL.
>> 
>> The GPL requires the user (not the end-user, who merely avails themselves
>> of their common law right to run the software, but the developer user, who
>> copies, distributes and modifies the code) to do certain things in return
>> for the right to copy, distribute and modify the code:
>
> The GPL places limitations on the granted licence. That isn't the same
> thing as requiring the distributor to do something "in return".
>

The distributor grants the licence.

> This is why the (relatively few) cases where GPL infringements have
> resulted in litigation, the legal basis of the litigation is copyright
> infringement, not breach of contract.

Right, but the defence is that the licence grants permission to use; so
that's where the law if contract comes into it. You have to figure out
whether the use in question falls within the licence terms.

So if someone brings an action for copyright infringement you can argue
at least some of:

1. Copyright doesn't subsist in the copied material.
2. You didn't copy it.
3. One of the legal defences (fair use etc.) applies.
4. You had the permission of the copyright owner (i.e. a licence to copy
in these circumstances).


In the last case we're essentially into contract law.

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#109576

On Mon, 6 Jun 2016 03:54 pm, Nobody wrote:

> On Sat, 04 Jun 2016 12:28:33 +1000, Steven D'Aprano wrote:
> 
>>> OTOH, a Free software licence is unilateral; the author grants the user
>>> certain rights, with the user providing nothing in return.
>> 
>> That's not the case with the GPL.
>> 
>> The GPL requires the user (not the end-user, who merely avails themselves
>> of their common law right to run the software, but the developer user,
>> who copies, distributes and modifies the code) to do certain things in
>> return for the right to copy, distribute and modify the code:
> 
> The GPL places limitations on the granted licence. That isn't the same
> thing as requiring the distributor to do something "in return".

Read the GPL. I already linked to it. The GPL explicitly and implicitly
requires that the distributor do certain things, and avoid doing others. It
implicitly requires that the distribute give up their right to keep the
code a trade secret. (It cannot be a trade secret if it is released under a
FOSS licence.) It explicitly requires the distributor to make the source
code available under the GPL. All these things are sufficient to make the
GPL a contract.

All this is covered in my previous post that links to a paper on the
enforceability of the GPL, written by an actual lawyer. If you haven't read
that, please don't argue until you do. Its all covered in the paper.


> This is why the (relatively few) cases where GPL infringements have
> resulted in litigation, the legal basis of the litigation is copyright
> infringement, not breach of contract.

That's factually incorrect. The only case (that I know of) where the GPL was
actually fought out in front of a judge was in Germany, and it was treated
as a breach of contract. The GPL is legally a contract, and if the
distributor fails to live up to their end of the contract (namely, the
requirement to publish their program under the GPL), then they have no
right to distribute, copy or modify the GPLed code. If they do, then they
are infringing copyright.

Again, this is all covered in the paper.


-- 
Steven

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#109467

Nobody <nobody@nowhere.invalid> writes:

> On Fri, 03 Jun 2016 09:15:55 -0700, Lawrence D’Oliveiro wrote:
>
>>> [quoted text muted]
>> 
>> A licence is quite different from a contract. A contract requires some
>> indication of explicit agreement by both parties, a licence does not.
>
> More precisely, it requires "mutual consideration", i.e. each party must
> provide something of value to the other.

Don't confuse consideration with agreement - they're seperate legal
concepts.

Agreement is certainly necessary in pretty much all
jurisdictions. Consideration is required in most common law jurisdiction
(England, the US, most of the commonwealth) but not in many continental
legal systems.



> OTOH, a Free software licence is unilateral; the author grants the user
> certain rights, with the user providing nothing in return.

Nope - the user promises to abide by the terms of the licence. This is a
very common kind of consideration.

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#109470

Paul Rudin <paul.nospam@rudin.co.uk>:

> Don't confuse consideration with agreement - they're seperate legal
> concepts.
>
> Agreement is certainly necessary in pretty much all jurisdictions.
> Consideration is required in most common law jurisdiction (England,
> the US, most of the commonwealth) but not in many continental legal
> systems.

Thankfully, I live in a jurisdiction where things are simpler. I've
actually successfully represented a relative in a court of law without
any legal training.

In Finland, it is common for families to have a printed copy of the law
on the bookshelf. Families traditionally sort out things like
inheritances without the involvement of lawyers. Nowadays, the law is
available online, of course.


Marko

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#109484

On 6/4/2016 4:24 AM, Marko Rauhamaa wrote:
> Paul Rudin <paul.nospam@rudin.co.uk>:
>
>> Don't confuse consideration with agreement - they're seperate legal
>> concepts.
>>
>> Agreement is certainly necessary in pretty much all jurisdictions.
>> Consideration is required in most common law jurisdiction (England,
>> the US, most of the commonwealth) but not in many continental legal
>> systems.
>
> Thankfully, I live in a jurisdiction where things are simpler. I've
> actually successfully represented a relative in a court of law without
> any legal training.
>
> In Finland, it is common for families to have a printed copy of the law
> on the bookshelf.

How wonderful that 'the law' can fit in a book.  English-speaking common 
law commentaries once had Blackstone's 4 volume Commentaries 
(https://en.wikipedia.org/wiki/William_Blackstone#Commentaries_on_the_Laws_of_England), 
but bookshelve of statute laws seem to have overwhelmed that, at least 
in the US.

 > Families traditionally sort out things like
> inheritances without the involvement of lawyers. Nowadays, the law is
> available online, of course.

For free, I presume.  I just discovered that the Delaware Code is now 
online http://delcode.delaware.gov/index.shtml.


-- 
Terry Jan Reedy

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#109487

Terry Reedy <tjreedy@udel.edu>:

> On 6/4/2016 4:24 AM, Marko Rauhamaa wrote:
>> In Finland, it is common for families to have a printed copy of the
>> law on the bookshelf.
>
> How wonderful that 'the law' can fit in a book.

Must be abridged, although I'm not sure.

>> Families traditionally sort out things like inheritances without the
>> involvement of lawyers. Nowadays, the law is available online, of
>> course.
>
> For free, I presume.  I just discovered that the Delaware Code is now
> online http://delcode.delaware.gov/index.shtml.

Yes, for free.

California, too, has posted its laws online. However, the traditions are
different in that American laws aren't the whole story: you'll also have
to know the precedents. Precedents play a role in Finland, as well, but
here laws tend to be more specific and precedents don't bind courts so
strongly.

AFAIK, American precedents are *not* freely available. Precedent
databases are available only for a fee to law firms. Thus, only lawyers
can hope to know what the de-facto law is. The online statutes don't
give you nearly enough information. (I once tried to figure out who was
supposed to yield in a tricky merging situation in California. The
California Vehicle Code didn't seem to provide any principle that would
have given the right answer. While perusing the laws, I did notice that
the DMV driving recommendations for a large part don't seem to be based
on the Vehicle Code. For example, I couldn't find any mention of
interleaving in the Code.)


Marko

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#109455

On Sat, 4 Jun 2016 02:15 am, Lawrence D’Oliveiro wrote:

> On Friday, June 3, 2016 at 9:53:47 PM UTC+12, Steven D'Aprano wrote:
> 
>> A licence is something like a contract...
> 
> A licence is quite different from a contract. A contract requires some
> indication of explicit agreement by both parties, a licence does not.

That's a very good point. In the USA:

    A license is a unilateral abrogation of rights. The licensor has,
    by law, the ability to enforce certain rights against the licensee,
    and the license functions as a promise not to enforce those rights.
    [...] if the conditions are violated, which essentially makes it a
    contract. As further discussed below, a contract requires mutual
    agreement and bilateral consideration. It is likely that a court,
    in the U.S. or abroad, would recognize the GPL as a contract.

And further:

    There must be an offer, acceptance of that offer, and something of
    value exchanged.

"Taking the case: Is the GPL enforceable?", Jason B Wacha, Santa Clara High
Technology Law Journal, Vol. 21 Issue 2.

http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1380&context=chtlj


In the case of the GPL, the offer is the right to copy, distribute and
modify the software, acceptance is the act of copying, distributing or
modifying the software. The exchange does not have to be monetary. In
exchange for the right to copy, distribute and modify the software, the
licensee agrees to keep copyright notices intact, insert certain required
notices, and redistribute the code only under the conditions of the
license. This is sufficient consideration, at least under US contract law.

In Europe and particularly Germany, things are different, as the German
courts don't recognise licences as a thing[1]. The GPL would have to be
treated as a contract, or not be legally meaningful. But that doesn't hurt
the GPL: if it is found to be invalid, then the infringing licensee finds
themselves with only their limited rights under copyright law, which most
certainly does not include the right to make unlimited copies and
distribute them.

As Wacha writes in the same paper:

    But what if, for some reason, a court held the GPL to be an 
    unenforceable license? [...] the licensee (who received the 
    code) reverts back to her common law rights. That means that 
    she has the rights to use the program (i.e., to copy into
    memory as necessary to run it) and to make a backup copy. 
    What disappears are the restrictions and other limitations 
    in the GPL. But these will be the only rights a licensee 
    has-she would have no right to distribute, and no right to 
    modify. So for a user, challenging the validity of the GPL 
    is a dangerous game.



> That’s why Free Software licences only have to say something like “by
> using this software, you agree to the following terms...”, because if the
> user doesn’t accept the licence, then they have no licence.

Right.


> EULAs for proprietary software, on the other hand, try to have it both
> ways, by having a clause like the above, as well as requiring you to click
> an “I Agree” button or some such.

I have no comment on whether or not that makes EULA a contract, or whether
it is relevant to the discussion. Wacha has some things to say
about "clickwrap licences", see the URL above.



-- 
Steven

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#109468

Lawrence D’Oliveiro <lawrencedo99@gmail.com> writes:

> On Friday, June 3, 2016 at 9:53:47 PM UTC+12, Steven D'Aprano wrote:
>
>> A licence is something like a contract...
>
> A licence is quite different from a contract. A contract requires some
> indication of explicit agreement by both parties, a licence does not. That’s
> why Free Software licences only have to say something like “by using this
> software, you agree to the following terms...”, because if the user doesn’t
> accept the licence, then they have no licence.

But that's exactly what a contract is - an agreement. The licence is an
example, on the one side the copyright holder is agreeing not to sue the
user for copyright infringment and on the other the user is agreeing to
only use the code according to the terms.

>
> EULAs for proprietary software, on the other hand, try to have it both
> ways, by having a clause like the above, as well as requiring you to
> click an “I Agree” button or some such.

You can agree a contract by conduct...

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