[A bit rambling] Open source licensing being questioned byanti-copyright types

[ClassCastException]

[copyright] is required or it would be almost impossible to make money
writing books or programs. Custom programs would survive, but no one-
size-fits-all.

That is the popular misconception, yes, but there's mounting evidence
that it simply isn't true.

For one thing, authors made money long before there was copyright.
There's only been copyright for about 300 years, but people have been
writing (and being paid to write) for thousands.

Back when copying meant writing the same by hand, then the cost of
copying created a natural barrier.

Irrelevant. There've been somewhat-mechanized means of duplicating
written documents for 400+ years.

But a lot of the people working on these projects are working for
companies that makes a huge part and in some cases the majority of their
money on software licenses.

90% or more of programmers are paid to develop in-house code, not
software that will be sold to the general public. *None* get copyright
royalties. And the companies can find other business models, the
existence of which has certainly been proved.

It is not particular clear.

Sure it is. Commercially sold works make the bulk of their revenues in
the first year or two. The hardcover book. The blockbuster movie. Suppose
one of each is released today. Six months from now, the movie appears on
PPV and DVD; you can watch it for a fraction the theater ticket price via
PPV or rental. Six months after that, the movie appears on non-PPV pay TV
ad-free movie superchannels and the paperback book comes out. The
hardcover finds its way to the bargain bin with the price lowered to
compete with the paperback. The DVDs are already also appearing in
bargain bins. A year after that, the hardcovers are selling for two or
three bucks in the bargain bins that still have copies and the movie
shows up on free broadcast TV (albeit now interspersed with ads).

Revenue curves likewise show this. Avatar made its first billion within a
few *weeks*.

Really, the only argument you can make is that with a two-year copyright
term people would wait for it to become free rather than pay, but people
pay to see movies in the theater and buy hardback books all the time,
rather than wait for the paperback or for the movie to be on cheap DVD
rental or free over-the-air TV, so apparently that argument would be
wrong.

Furthermore, cinema tickets are actually scarce. Get rid of copyright and
their price would remain well above zero, and put in place revenue-
sharing arrangements (theater will help fund filmmaking in exchange for
being the first on their block to screen it, or whatever) the movie
industry could conceivably make rather a large fraction of its current
box-office revenues in a no-copyright world (and meanwhile its expenses
go through the floor -- no need to license music, etc.; the original Star
Wars proved you could make a blockbuster with at-the-time inexpensive no-
name talent, so the expenditures on million-dollar names and faces can
also go; and end-to-end digital production is another massive cost-
cutting option). Printed books are attractive even given e-readers; zero
out copyright and people will still buy books for the foreseeable future.
As the "pirating" of Dickens in America a century or more ago
demonstrated, an author *can* make a profit selling printed books without
a distribution monopoly. The works that would be harmed the most are
*bad* works, as in any situation where it's easy to "try before you buy".
The inability to sucker an opening weekend audience of millions into
paying to see a bad film does not strike me as a tragedy, though, were it
to become the case. It should in fact serve as an impetus to improve
quality, if it ceases to be possible to actually turn a profit on some
percentage of badly-made films.

 

[ClassCastException]

Throughout this rambling discussion there has been no citation of case,
regulatory, or statutory law from any jurisdiction.

No one jurisdiction covers all software development (or even all Java
software development); there have been mentions of the present laws of
Norway and the United States, though.

 

[Lew]

Just in: "Terrible Court Says It's Okay To Remove Content From The
Public Domain And Put It Back Under Copyright."

<http://www.techdirt.com/articles/20100621/2320049908.shtml>

Discussion: "Court Takes Away Some of the Public Domain."

<http://yro.slashdot.org/story/10/06/22/1724254/>

That article discusses Congress pulling something out of the public domain,
and doesn't address the points raised in this thread about whether the
copyright holder could have put the stuff in the public domain in the first
place, nor whether the copyright holder could have done it without the weight
of the legislature.

 

[John B. Matthews]

Just in: "Terrible Court Says It's Okay To Remove Content From The
Public Domain And Put It Back Under Copyright."

<http://www.techdirt.com/articles/20100621/2320049908.shtml>

Discussion: "Court Takes Away Some of the Public Domain."

<http://yro.slashdot.org/story/10/06/22/1724254/>

That article discusses Congress pulling something out of the public
domain, and doesn't address the points raised in this thread about
whether the copyright holder could have put the stuff in the public
domain in the first place, nor whether the copyright holder could
have done it without the weight of the legislature.[/QUOTE]

To me it suggested how readily a motivated legislature and judiciary
might act to vitiate the applicability of adverse possession, which you
cited.

<http://groups.google.com/group/comp.lang.java.programmer/msg/8060d9d24cc32fcd>

From the recently overturned opinion: "In the United States, that body
of law includes the bedrock principle that works in the public domain
remain in the public domain."

<http://www.techdirt.com/articles/20090403/1619494384.shtml>

 

[David]

There seems to be a lot of good (and woefully ill-informed) comment on
this thread.

If you want to make money from GPL software then all you have to do is
start selling it. Just like propriatary software.

If you redistribute GPL covered binaries you are expected to attribute
this and point people to the source (you don't have to host it).

If you are 'mere aggregation' then that's all you have to do. For
example - you can redistribute Apache Tomcat in a binary bundle if all
your software consists of is a set of JSP/HTML files in a WAR file.

If you modify an existing product, then you should host the source
code and make it available in some way. Again, that all you have to
do. You can even cover reasonable costs in doing this. As has already
been pointed out in this thread, the source code is usually worth very
little - it is the support and expertise a company supplies that
provided the draw.

Finally, try to ignore the hysteria. The GPL is not viral, it isn't
dangerous and it doesn't violate copyright. It is a very simple
license based on a clear understanding of copyright law. There are
numerous products using it (and similar licenses) that make plenty of
money.

 

[David]

There seems to be a lot of good (and woefully ill-informed) comment on
this thread.

If you want to make money from GPL software then all you have to do is
start selling it. Just like propriatary software.

If you redistribute GPL covered binaries you are expected to attribute
this and point people to the source (you don't have to host it).

If you are 'mere aggregation' then that's all you have to do. For
example - you can redistribute Apache Tomcat in a binary bundle if all
your software consists of is a set of JSP/HTML files in a WAR file.

If you modify an existing product, then you should host the source
code and make it available in some way. Again, that all you have to
do. You can even cover reasonable costs in doing this. As has already
been pointed out in this thread, the source code is usually worth very
little - it is the support and expertise a company supplies that
provided the draw.

Finally, try to ignore the hysteria. The GPL is not viral, it isn't
dangerous and it doesn't violate copyright. It is a very simple
license based on a clear understanding of copyright law. There are
numerous products using it (and similar licenses) that make plenty of
money.

 

[Arved Sandstrom]

IANAL, but sometimes playing devil's advocate:

A company could write some useful code, and donate it to
public domain. Later, when others have started using it,
the company could be taken over, and the new owners may
point out, that that previous act of pd-izing was illegal
from the beginning and furtheron demand license-fees ...

Not illegal - there's no law (I think) against doing something which has
no legal effect.

AHS

 

[Bent C Dalager]

Not illegal - there's no law (I think) against doing something which has
no legal effect.

If the intent was communicated clearly enough then there may be a case
of promissory estoppel or similar. That is, the court may hold that
the original promise must be honoured in spite of it not being part of
a contractual obligation. In this way, making a promise will at times
have a very real legal effect even if the sort of promise given isn't
really backed by any very specific law.

But again you are relying on the good will of the court, which is a
capricious beast at best. The company officers who made the original
promise would probably have been much better served by phrasing it in
a manner that is actually based on an applicable law.

Cheers,
Bent D

 

[David Lamb]

The material change would be that any source code you could get your
hands on would be yours to use as you wish, unless of course you
obtained it through industrial espionage.

What I'm fairly sure of is that a company trying to protect something
via trade secret has to keep that something actually "secret" in a
specific sense: it has to make sure that everyone who gets to see, for
example, the source code for some software, or the method for producing
a peculiar blue shade of stained glass, signs some form of
non-disclosure agreement beforehand.

If you have in hand a copy of the source code that you obtained by some
legal means, without having signed non-disclosure, I'm reasonably sure
what you said is true. However, being given a copy by someone who
obtained it illegally probably doesn't itself count as legitimate source
of the secret. If an employee who signed nondisclosure posts the source
code on some website, and that was allowed to count as a legal way of
others obtaining the trade secret -- that sounds like a hole so big as
to make trade secret a worthless concept.

 

[Arved Sandstrom]

What I'm fairly sure of is that a company trying to protect something
via trade secret has to keep that something actually "secret" in a
specific sense: it has to make sure that everyone who gets to see, for
example, the source code for some software, or the method for producing
a peculiar blue shade of stained glass, signs some form of
non-disclosure agreement beforehand.

If you have in hand a copy of the source code that you obtained by some
legal means, without having signed non-disclosure, I'm reasonably sure
what you said is true. However, being given a copy by someone who
obtained it illegally probably doesn't itself count as legitimate source
of the secret. If an employee who signed nondisclosure posts the source
code on some website, and that was allowed to count as a legal way of
others obtaining the trade secret -- that sounds like a hole so big as
to make trade secret a worthless concept.

I think that if employees sign good NDAs and non-competes that if those
employees then disclose the source code for something on a website that
this doesn't by itself void the trade secret...provided that other
measures to protect the secret are in place. That is, if you were not
shredding confidential paperwork and just left it lying around on desks,
there was no kind of policy concerning removal of paperwork or flash
drives from the premises, you had no decent escorted visitor access, and
your offices were routinely cleaned by custodians who were not vetted,
that disgruntled employee could go ahead and post all the source for
your latest in-house app - which has some trade secrets on it - and it
would possibly be legal for competitors to use that knowledge.

AHS

 

[Bent C Dalager]

I think that if employees sign good NDAs and non-competes that if those
employees then disclose the source code for something on a website that
this doesn't by itself void the trade secret...provided that other
measures to protect the secret are in place. That is, if you were not
shredding confidential paperwork and just left it lying around on desks,
there was no kind of policy concerning removal of paperwork or flash
drives from the premises, you had no decent escorted visitor access, and
your offices were routinely cleaned by custodians who were not vetted,
that disgruntled employee could go ahead and post all the source for
your latest in-house app - which has some trade secrets on it - and it
would possibly be legal for competitors to use that knowledge.

It's difficult to say very much specific about trade secrets because
they are handled very differently in different jurisdictions. In
general, however, if a company can document that they have good
mechanisms in place for keeping a trade secret secret then this will
tend to count in their favour when determining whether the secret has
legally become public.

Conversely, if a company calls something a trade secret but then does
little or nothing to actually protect it their secret will tend to
lose legal trade secret status very fast.

Cheers,
Bent D