Subject: RE: OSD modification regarding what license can require of user
From: "I.R.Maturana" <irm@myrealbox.com>
Date: Fri, 15 Mar 2002 02:20:12 +0100

RN>> Copyright law already gives them permission to make derivative works.

JN> That is not so.  One may not make a derivative work without
> the permission
> of the copyright holder.  For example, one may not translate a book
> into a different language without such permission, even an unpublished
> translation.  If you distribute the translation, the breach
> is compounded,
> but even if you don't, it is a breach.
</John Cowan>

This is a good point, but it need to be developed.
Let me add that once permission is given, Copyright Law can give
to "second" author of derivative work the SAME rights than
the "first" author, on their respective versions.

How can we understand these contradictions ?


I want to bring to your attention these "derivative rights"
because these 2 concepts we need to distinguish: derivative
rights, and distribution rights (right to copy). These rights are not
exactly the same, and the implications are different.

The assertion that respective rights on derivative are EQUALS to
those of the author can be found in Treaties (Berna and WIPO developments)
http://clea.wipo.int/lpbin/lpext.dll/clea/LipEN/46e4b/46e4c?f=file%5Bdocumen
t.htm%5D#JD_388eb
In particular: Article 2, alinea (3).

Most countries adhere to it (including US, of course).

[You can notice this article apply to artistic works. I do not want
to discuss if software is an artistic work. I only notice
that software licenses invoke IP Laws to implement their
open-protection scheme.]



If we say in short that "first" and "second" author have the same rights,
somebody can think this is anarchy.
This is not so.

Copyright Law (WIPO Treaties) introduces a powerful protection scheme
which can be rephrased as:

  Rights of licensees on their respective work will be the SAME,
  _without prejudice_ of the rights of the author,
  AND ONLY IF author authorizes the derivation.
(see for example: art.8 for translations, and art 12 for modifications)


IP Laws define this protection scheme as "moral" rights. In US, the
usual word used is "copyright". But this is the same concept and all
these expressions (in each legal tradition) are used in conformity
with this WIPO Convention.
You can use the word "tutelage", too, as in French tradition.

There is no country differences under IP Laws. This universal, underlying
IP mechanism allows for example all licenses (OS or non OS) to work in
a strong manner. While the author does not allow the derivation,
"second" authors have no rights. Period.

But as soon as the author allows derivation, "second" authors are granted
the same rights than author on his/her respective version.

Again, it is very important to understand that the rights given to
"second authors" on their derivative versions are granted by Laws,
not by authors.
Of course, Country Laws can varie on details, they are rephrased in
different languages and follow different traditions, but all are
compliant with the principle of "moral" rights/copyright.
This is the Berna Convention.



The true difference between OS and non-OS licenses is that OS licenses
do not require user identification nor payment from licensees, while
non-OS licenses requires payment, and if they can (as we see in
most Web sites, today) they require also the identification of licensees...
:-D)
If asked, I should insert this rule as #0 in OSD : "do not require
identification of licensee".

====



Based on the above, I want to underline some of the reasons that
cause that OS mechanism fails under some circumstances.

Actually the OS mechanism is based on the idea that using the IP
protection given to authors on distribution, we can also protect
derivatives versions of work.

This solution fails (or will fail) because the rights on derivative
works are not under control of "first" author. Everyone can derive a
work, as long as it do not try to distribute his version.
Authors cannot "grant" rights for derivation because this right is
already given by laws. There is no society nor progress without the
right to derive from Sources, books, ideas, or goods. Rights
for distribution and for derivation do not come from the same source.

Rights to distribute a work belong to copyholder: they can be limited
on time, space and quantity.
Rights on derivation work cannot be limited: they belong entirely to
"second" authors. A copyholder cannot define a license that make
prejudice to the rights owned by "second authors" on their respective
versions. In fact, a "version-holder" can legally forbid the distribution
of its own derivative work, based on the _same rights_ than allows
the original-holder to forbid the derivation.

A license which "grant derivative rights" is almost a non-sense. Authors
can *forbid* the distribution of the derivative work, but they cannot
forbid the freedom of people to create derivations.
Authors cannot claim for rights on derivative works, because these
rights belongs to the author of the version.

This is the meaning of some of the court examples that some of you are
describing.

For all these reasons, the OS mechanism MUST fails because it falls under
the paradox of Achille and the turtle: OS license try to run faster
than non-OS, but they cannot win, because they try to apply
the turtle's distribution logic, while their true logic is based on
Achille's derivation logic.

Faced to this paradox, I think there is another perspective.
Rather than to enforce some IP mechanism based on copy and distribution
licenses, in the hope we will get back the benefits of derivation,
i suggest to think directly on derivation. I worked this way for
translations (and general translatable works) but the same logic can be
used for software derivation. Software derivation is the true basis of
open-source development. It is not difficult to see software as a
translatable work (well: in fact, this is how I earn money :-)


I suggest to enforce the derivation, by asserting the equality of rights
of authors of derivatives, and by working on an *agreement*, not a
license. A General Contract that describes rather than indefinite rights,
specifics and finite "obligations" of licensees.

This is not an utopia : this kind of agreement will be protected by
Laws as long as the equality of parts has been correctly asserted
(and because contracts which are not based on equality of the parts
are illegal, by definition :-)

This way, you start from open-IP Laws, and you end on "open-contract".
Doing so, you do exactly the opposite that proprietary licenses try
to do (== that is, starting with unilateral closed-contracts and trying
to modify IP-Laws by interpreting licenses as patents, and working
against freedom of languages, creativity, free-speech and so on)

Doing so, there is no more paradox, and you win.

[Sorry for the extend. Think this is important, and my English is not
 good enough to be able to explain things in short :-)]



Natxo (Is A Name)
[I.R.Maturana -- Translator En>[ES<>FR] - http://www.in3activa.org ]

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