"Violation" - Copyright as property.
Dennis E. Hamilton
infonuovo at email.com
Sat Mar 25 22:48:20 UTC 2000
TACIT VERSUS RIGOROUS SPEAKING OF LEGAL MATTERS
Yesterday, at dinner, there was conversation about what exactly is
"impeachment" and what is a "pardon." This was in the context of a
fifth-grade report on Gerald R. Ford, the only person in U.S. History who
served both as Vice President and President without being elected to either
office. Our grandnephew, Jake, is 10 and will be making that report for his
It was very interesting to hear the dinner-table explanations that 3 adults
came up with for Jake. First, pardons were discussed as if related to
(Presidential) impeachment, when that has never applied and it is difficult
to imagine a scenario when it could. Ford's pardon of President Nixon had
nothing to do with impeachment, technically, but with regard to criminal
acts that might or might not have been committed. Secondly, there is
confusion with being impeached (i.e., indicted) and being convicted of an
impeachable offense and being removed from office.
I am not bringing this up because of interesting aspects of U.S.
Constitutional Law (though protection of intellectual property has a
constitutional foundation in the U.S). It is the difference between the
rigor and precision that applies in legal proceedings (and contracts and
other documents intended to have some legal force) and the everyday speech
of people when discussing a subject such as copyright, etc. Considering
that the second Presidential impeachment trial in U.S. History is a matter
of recent memory, and all of the work that the media invested to have the
public understand what was happening, it is fascinating how little people
are aware of the process in comparison with their own sense of what was and
what was not established. (Jake, of course, would have a recollection on
what he heard around him when he was even younger than now, and he seems to
have it via tacit knowledge that William Jefferson Clinton is a crook and an
awful person. I can't use the O.J. Simpson murder trial as an example in
our household because Jake's mom will not speak O.J. Simpson's name.
DISCUSSIONS ARE OFTEN AT A TACIT AND CARELESS LEVEL - THE QUESTION IS
WHETHER THE LICENSES ARE
It is my impression that most of the discussion on this list is more casual
than you want, and that is not going to change, even when techn-geeks like
myself speak with an authoritative tone. (I'm sure you can imagine how
difficult it was for me to serve the first time on a felony-trial jury that
went to verdict "beyond a reasonable doubt." The way I dealt with that was
to have it be the prosecutor's case that was guilty until proven innocent.
More or less.) If there is wording in an OSD-consistent license that you
find inappropriate and potentially dangerous (in that it undermines the
intention behind the particular license statement), it is valuable to let us
know your concern. Nevertheless, I don't think you are going to be
satisfied concerning people's usage of "violation" versus "infringement" and
other terms in not-particularly informed ways when discussing OSD-consistent
licenses and the prospect of particular infractions, alleged or
UNDERMINING COPYRIGHT AS PROPERTY?
In your response, below, I must confess that I did not sense that particular
concern in your previous statements, and I don't see how it hinges on
increasing the rigor with which we speak of violations of licenses and
infringement of copyrights. I'm referring to your concern, that "the
license threatens the very foundations of the notion of copyright as
property." I don't follow that. The licenses we discuss here largely
depend for their force on the very existence of copyright as property (and
separated from copies of the work that is the subject matter of the
copyright). [Please bear with me if I haven't used "subject matter"
precisely.] It strikes me that the whole deal about copyright is that
copyright is a subdividable property right that is separate from the rights
one automatically has through ordinary possession of or trading in a lawfull
y-obtained physical copy of a copyrighted work. I don't personally see any
conflict with the notion of intellectual property here. OSD-conforming
licenses seem perfectly consistent with exercise of an intellectual property
right, at least as construed in the United States. I presume that is close
enough for harmony with treaty arrangements that honor copyright
Can you be specific about where you have seen a more-than-hypothetical
From: W. Yip [mailto:weng at yours.com]
Sent: Friday, March 24, 2000 06:44
To: license-discuss at opensource.org
Subject: Re: "Violation"
On Fri, 24 Mar 2000 17:30:51 +1200, "j.Maxwell Legg" <income at ihug.co.nz>
>W.Yip was referring specifically to alterations to a an old bare license
that had no subject matter and was only a set of terms.
Hi. I am afraid you have misread me. I hope my subsequent postings serve to
clarify things. Primarily, I am attempting to reconcile conventional legal
understanding of the license to the radically permissive nature of the OSS
licenses. Conventional licenses are more restrictive, while OSS licenses
are so permissive, even 'viral', that the license threatens the very
foundations of the notion of copyright as property.
I am not concerned here with alterations to the terms of a license, whether
bare or otherwise.
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