Re: Misunderstanding of PD and copyrights

From: Edward Cherlin <edward_dot_cherlin_at_etssg_dot_com>
Date: Thu May 13 2004 - 19:01:23 CDT

On Tuesday 11 May 2004 08:43, David Mertz wrote:
> On May 11, 2004, at 3:49 AM, Edward Cherlin wrote:
> > There are too many examples of material in the public domain
> > being altered slightly and copyrighted as a new work, thus
> > becoming proprietary.
>
> There may be a way to parse the above comment as correct. But
> it tends to suggest a somewhat common misunderstanding.

Parse it as correct then, and we can get on with the discussion.
I meant it that way, and I am well aware of the objections you
raise below to notions that I do not hold.

> Material that is in the public domain cannot be removed from
> the public domain by copyright claim (with the unfortunate
> exception of the Sony Bono Copyright Extension Act that
> retroactively extended copyright to works that had lapsed into
> PD with age; the SCOTUS did wrong in Eldred).

I know that.

> However, it *is* true that PD work can serve as the basis of
> derived works that *are* copyrighted, and licensed in
> proprietary ways (or not at all). In this respect, the
> "danger" is exactly the same as the danger that GPL
> enthusiasts find with BSD-ish licenses (post advertising
> clause).

Very well, I am a GPL "enthusiast" in your terminology.

> A work that is Free might serve as the basis for a
> derived work that is unfree. But that fact is not a bug with
> BSD-ish licenses and PD, its a design principle.

Please do not confuse the terminology. Free Software means GPL
licensed software, which may not be made the basis of
proprietary software. BSD licenses are not Free Licenses.

I have no objection to UC Berkeley creating the BSD license and
publishing software under it. I don't think that that approach
is appropriate for our software. And I still don't think that
our conversations on this list should be PD. I reserve copyright
on my own contributions, if you won't.

> > It happened to a friend of mine, John Sankey, who put his
> > Scarlatti harpshichord MIDIs in the public domain. The new
> > owner, whose modifications are NOT improvements, has been
> > threatening sites that publish Sankey's originals.
>
> I have no trouble believing this happened. And I have no
> trouble believing that the creator of the (inferior) derived
> works are real pricks, who can probably effectively shut down
> the PD distributors.
>
> But as a matter of law, the owner of the derived work is
> WRONG. S/he has no legal right to impede distribution of the
> PD originals.

Of course. But many Web publishers defer to copyright holders,
even if they hold copyright on a different work. It's called
FUD.

> Of course, most people who distribute PD work
> out of a spirit of community don't have a lot of money to
> spend on lawyers to respond to C-and-D nastygrams; people
> willing to buy lawyers can often bully well-meaning people
> into ceasing good activities.
>
> I can easily cite dozens of examples of people distributing
> GPL'd works who have gotten nastygrams alleging derivation
> from proprietary works,

All of Linux, in fact, from SCO. We can be glad that they were
foolish enough to sue IBM.

> DMCA violations, patent issues, and
> other alleged grounds. In a lot of cases, the poor volunteers
> cave in rather than go to court, no matter how right they are
> on the law.

Especially if they are unaware that the EFF and ACLU may be ready
to help.

> No license, and no amount of assignments or changelog quality,
> can prevent barratry. At best, it can make cases easier to
> win.

Not a trivial benefit in a field where so much power is at stake,
and a fair amount of money, too.

But there are other advantages. If we clearly own the copyright,
it is much harder for somebody else to scare a third party with
a bogus claim to our work.

-- 
Edward Cherlin, Simputer Evangelist
Encore Technologies (S) Pte. Ltd.
Ending aid and charity for the poor
http://www.ryze.com/go/Cherlin
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Received on Mon May 31 23:17:41 2004

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