Academic Free License

[Rod Dixon]

> Just as a side note - not important enough IMHO to send to the list -
> Larry, you hold the copyright whether or not you include a copyright
> notice.  In legalese, copyright 'arises', it is not claimed or granted.

I believe the notice requirement was largely technical formalism in the
sense that a work could have been pushed into the public domain, if the
notice was missing. I am unaware of any past or present legal significance
for "arise," "claim," or "grant" with regard to the previous notice
requirement or the present notice practice.

> The notice is no longer required under law, although it has definite
> utility in informing others of *who* believes that they have the rights
> to the work, as well as reminding people that the creation of derivative
> works or copies are not permitted (or in your case Larry, not
> encouraged, to reduce confusion surrounding multiple extant copies).
> Perhaps it might serve the same utility to include a clause pointing to
> the canonical copy?  I fully acknowledge the concerns over the validity
> of a copyright on a software license, but in all actuality, the only
> real hurdle the courts tend to impose for most instances for
> copyrightability is a modicum of expression.  This very dicussion
> surrounding the license would indicate to me that you are 'expressing'
> yourself.
>
> Respectfully,
> Ryan Ismert
>

Sure, regarding a run-of-the-mill software license (open source or
otherwise), the text of the license is certainly "expressive," but the
expressive quality does not tell us very much about the context I mentioned.
The originality requirement of copyrightability is what I would consider a
more determinative matter. Theoretically, the originality requirement
imposes a low threshold upon the copyrightability analysis, but in practice
courts vary widely on determining whether the originality requirement is
met. I think the application of the originality requirement to license
templates is not a simple matter, but probably would result in thin
copyright protection, if any, for those works.

Lawyers do not want to be too original in drafting legal instruments. A
careful lawyer drafts licenses and contracts by using: legal terms-of-art,
common phrases (expressed with a string of words that have ostensibly merged
with the underlying ideas) (merger doctrine), and reliably interpreted
clauses. In this light, the text created is likely to receive only thin
protection under copyright.

Rod

Rod Dixon, J.D., LL.M.
rod at cyberspaces.org
http://www.cyberspaces.org/dixon/
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132





> > -----Original Message-----
> > From: Lawrence E. Rosen [mailto:lrosen at rosenlaw.com]
> > Sent: Tuesday, June 25, 2002 11:37 PM
> > To: 'Rod Dixon'; license-discuss at opensource.org
> > Subject: RE: Academic Free License
> >
> >
> > Hi Rod,
> >
> > Thanks as always for your cogent questions and comments.
> > Well worthy of a reply....
> >
> > > Larry, I like the simplicity of the AFL, but there are two
> > > general issues I would like to raise as questions more than
> > > an expression of an opinion.
> >
> > > 1) Why copyright the license
> > > text?  Assuming that the text of a license is copyrightable,
> > > does the accompanying notice introduce confusion? Aside from
> > > the well-intentioned insistence on the adoption of the "list
> > > of conditions," for distribution of software with the AFL, is
> > > it consistent with the objectives of open source to constrain
> > > (withhold permission for) modifications of the license? I
> > > have always puzzled over whether a suit for copyright
> > > infringement of the license text accomplishes anything that a
> > > software license does not accomplish in the context of open
> > source???
> >
> > I personally have no intention of ultimately holding
> > copyright in that license.  Perhaps an organization like
> > Creative Commons, or an academic licensing organization,
> > might accept copyright assignment from me of the Academic
> > Free License (or an improved version of it).  What I am
> > concerned about is having multiple versions circulating
> > around the web while we discuss and improve upon this draft.
> > There is no effective means other than the copyright law to
> > prevent people from circulating non-redlined modifications of
> > my draft license that otherwise might become
> > self-effectuating by a simple notice in software.  So, which
> > draft of the Academic Free License is currently the
> > "official" one? "Mine!" under the authority of the Copyright Act.
> >
> > "Assuming that the text of a license is copyrightable...."
> > You may well raise that important issue.  Copyrightability is
> > a problem for any document that purports to both have utility
> > (and legal effects) and is expressive.  Can a software
> > license be copyrighted?  Can a set of rules for calculating
> > your income tax?  Can a specification for software be
> > copyrighted if the only purpose of the document is to permit
> > implementation of that specification?  Can a published
> > technical standard be copyrighted so as to prevent
> > implementers from modifying their programs?  Can a standard
> > that is adopted as a statute by reference be copyrighted?
> > (See the important Veeck case.)  Why don't we take these
> > questions to the cni-copyright list where attorneys can
> > debate this to their hearts' content?  In the meantime, I
> > elected to claim copyright in the Academic Free License to
> > guarantee some semblance of version control while people
> > suggest improvements.
> >
> > > 2) The AFL seems to be targeted for those licensors who need
> > > an open source license from Original Licensor
> > > ----->to---->licensee, but not necessarily subsequent
> > > end-users.  Is this correct or, does the 2 "list of
> > > conditions" clauses ostensibly impose a copyleft constraint?
> >
> > The Academic Free License is not intended to impose copyleft.
> >  I make no political statement here.  I would personally
> > probably prefer a license that imposed source code
> > reciprocity for all derivative works.  What I was trying to
> > do in the Academic Free License was merely to clean up some
> > problems I perceived to exist in the BSD, MIT, UoI/NCSA and
> > Apache licenses.
> >
> > Under the AFL, Software is fully licensed for the creation of
> > derivative works that may be either proprietary or open
> > source.  The original copyright notices in the Software must
> > be displayed on all copies and derivative works.  Other than
> > that, there is no requirement to publish source code of
> > derivative works (or of copies).
> >
> > The license is intended to be available directly from the
> > licensor to anyone who obtains a copy of the Software.  A
> > sublicense is not required.
> >
> > /Larry Rosen
> >
> > --
> > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> >
>
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
>

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