Subject: RE: OSD modification regarding what license can require of user
From: "I.R.Maturana" <irm@myrealbox.com>
Date: Thu, 14 Mar 2002 05:33:12 +0100

Hello

Sorry for my English, but let me try to offer another
perspective.

> Consider this from the perspective of the creator of Evolution,
> OpenOffice, or GNU Emacs. This person has put an immense
> amount of work
> out in the public with the expectation that improvements that
> are widely
> used would be distributed, and thus would be returned to
> them. And they
> aren't. Is this fair to them? I contend that this sort of
> activity should
> be placed outside of the covenant represented by the GPL. Richard and
> Eben don't necessarily agree with me - yet.

Let us make a difference between the "spirit" of the work and
the "use" of the work. Then let me try to extract some solution.

The definition of the "purpose" of the work belongs to the author.
On first side, moral authority (or tutelage) of the author is the
source of the actual rights granted by any license.

On the other side, the possible "use" of the work is always defined
by a license.
When the author is and individual, the right to define the license
belongs to the individual.
When the author is member of a corporation, (if the work has been
developed, or paid by a corporation), the right to define a license
belongs to the corporation.
In both cases, Copyright/Intellectual Property (IP) Laws only
define who is the copy-holder, and which are the "rights" that
the copyholder can grant.

The extended use of expressions like "Open license " or
"restricted" license is somehow confusing. Open/Restricted refers
to the purpose of author, not to the license itself.
The only true open license is a public domain license.
Strictly speaking, all OS licenses are always restrictives.



The point here, is to understand that the mechanism in OS licenses
is based on a legal formalism.
Theses licenses are legally strong because they are based on
the same "spirit of private interest" than non-OS licenses.

This formalism works well because copyright and IP Laws are
based on the supposition that authors are always "restrictive".
Laws assume that if an author creates some work, he will never
want to publish nor grants user rights without garantees.
Therefore Laws are designed to offer protection to the
restrictions that authors want to apply.
The good idea of GPL was to use this "legal protection" of
Laws to enforce the free use, derivation and distribution of work,
instead of a restrictive use.

The issue to this approach is that Laws are still based on a
restriction logic.
This way, any "open licence" can expect to reproduce indefinitely
some contradiction like the Achille Paradox.

The basic contradiction is that you cannot define the "public interest"
of OS authors as a result of the "private interest" definition of
the IP Laws.

The private interest can only be defined inside the boundaries
of the public interest. (For example, antitrust laws apply against MS
because private interest cannot destroy the market -- fair market
is of public interest.)




Now, let me try to define the opposite mechanism.
We start on the idea that authors have a "public interest"
and we go ahead, until we find the connexion with private IP laws.

The mechanism is as follow:

1) Any agreement between two individuals defines some legal "space"

   Define this agreement as follow:

   The authors grants rights to anybody to access, derive, modify copy
   and translate his work, ONLY ON THE SPACE DEFINED BY THIS AGREEMENT
   The condition is that licensee MUST allow the access, derivation,
   modification and translation of his derivative work ON THE SAME SPACE
   DEFINED BY THIS AGREEMENT, with no fee nor identification of
   licensee.

   Name this resulting space : "the Internet"


2) Suspend any right of use of the work "outside" this space.
   That is, copy, modify, translation etc.. is forbidden
   if people cannot access the copy or derivative "inside" Internet,

   Strictly speaking, there is no right to suspend, because authors
   have granted no rights at all.
   Because no rights have been granted outside internet, all the rights
   remains to author.

   Therefore, outside this space, outside Internet, authors holds
   all the rights. He can earn money, publish, distribute his work
   under the Laws of each country. He can even prohibit the use
   to copy, distribute or use the work outside Internet.


3) Assert that the copyrights of the licensees will be equals to the
   rights of the author, on their respectives versions.

   Note this last assertion is given by IP Laws (not by license)
   This assertion exists in WIPO treaties and all country Laws.

   This way, this licence becomes a legal document valid on all
   countries, under all Laws, and if you translate it, this license
   become valid in all languages.

You have now connected the public will of "open minded" authors and
licensees with country Laws, and you can claim for their protection
against "closed minded" authors, in each country, in each language,
under all courts.


Conclusion. Given the handshake of open-minded developers, let us
define a legal space:
- were the sources will be open and free (and translatables, too)
- which preserve all the copyrights of authors outside this space
- which assert the equality of rights of authors and licensees
  inside this space.
This way, the open-licence become the general model, and the
restrictive-license, the particular.


Voilą. This mechanism is in fact developped by the PLT.
Of course, once you have asserted equality of people, in a legal
defined space named Internet, next step will be to write down some
Constitution and offer to Microsoft the alternative: accept some
of the OS licence, or stay away the future.

But this future is far away the present topic, IMHO
;-D)

Regards
(sorry for my english)


I.R.Maturana -- http://www.in3activa.org
LPT-ENv1r2 - http://in3activa.org/doc/en/LPT-EN.html

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