Why?

[Peter Fairbrother]

Jan Dockx wrote:

> Why do organizations that release software under a permissive,
> non-copyleft license, use a license in the first place?

I'd guess the idea is so that other people can feel free to (re)use their
code/ software. If there is no licence then the other people wouldn't feel
free to use it. 

The other part of the reason is that anything else is far more legally
uncertain than a licence.

> What is the  difference between BSD and public domain?

Some say the difference is that a BSD requires the writer's name to be
associated with the work, which it does - and for some writers that is the
point. 

But for the code (re)user, it is in any case necessary to know who wrote the
code. Any code. All code. As soon as code is written someone has copyright
in it, that's the law, and using code that is anonymous could lead to
problems later - the real writer (or even someone who claims to be the real
writer) might take you to court.

The important bit of licencing is to avoid problems later, and that means
not getting taken to Court later. That's what a good lawyer or legal
department is for, if a case even looks like it might get to court you have
already lost money and time. That's platitudinous, okay, but it's what the
potential code (re)user is actually, really concerned about.

And the potential code (re)user is the important one here, not the writer.
It's like the movies, the writer can and often does get shafted - but even
so a canny writer will get paid.

You can write all the code you like, but if no-one (re)uses it it doesn't
matter what licence is involved. And most people who write "free" code want
other people to (re)use it, or at least to feel able to (re)use it. That
means that code writers should consider potential users' needs when they
consider licences. If you are writing "free" code you need to tempt
potential code (re)users with a tender, reliable licence.

OpenBSD has an interestingly different take here ... :)





A more fundamental difference between BSD and "public domain" is that BSD is
far more certain legally. "Public domain" refers to code that is out of
copyright, ie code whose copyright has expired, or in past times code whose
copyright was not properly asserted or maintained - but nowadays there is no
need to assert or maintain copyright, and there are those, of whom I am one,
who assert that it is impossible to "put work in the public domain".

It can't be done.

There are those who disagree with that position, in US law - in UK law it is
pretty much accepted that it's impossible - and they may even be right, I
don't know, though I doubt it. But they don't know either. It hasn't been
tested in Court. And that makes code (re)users very nervous.

The BSD licence hasn't been tested in Court either afaik - but it has been
around a long time, the concept of licences has been well tested, and people
are fairly confident it will stand a test. Potential code (re)users have
confidence in it.

(note added a later, now intoxicated: it's strange, but the confidence in
the licence itself actually makes the licence more certain. There is a Legal
Principle which says that the law means what "the people" expect it to mean,
and Courts follow it unless there are good reasons not to. That principle
strengthens the legal security of the BSD licence. Someone else might tell
you it's name, if I don't get sober and remember it first)


The other problem is "will this particular method actually work?". There are
lots of supposed methods, declarations, dedications, abandonments, etc
although personally I don't think any of them will work. But will the
particular method chosen by the writer to "put code in the public domain" be
accepted in a Court? if the heirs of the writer are fighting, along with the
BigCorp they have sold an option on the rights to, against a little guy?
Maybe this one will, and this one won't?

Any potential (re)user with half a brain is of course out of State by now,
and accelerating hard.

Copyright is granted by statute, and statutory rights cannot be abandoned
[maybe. Usually].  They can't just disappear.

You might instead try and give the rights to "everybody"; but then
"everybody" has to agree to accept them, an impossibility. Or perhaps you
give them to "anybody who wants them", but then the people you give them to
might prevent other people using the code; so give a licence rather than the
rights themselves, now you're getting close to a BSD, which is (almost)
giving a licence to the rights to anyone who wants one*.





> I understand the need for a license, the use of copyright law, to keep
> software free through copy-left.

Could you explain it to me please then, because I don't, despite (or perhaps
because of) many words from R Stallman.  OFFLIST! I'm not serious!!! much

> But if you are not interested in
> keeping your software free, then why would you release your software
> with a license?

Like Microsoft does?





> There is a lot of talk about the possible appropriation of open work by
> others, and the possible adverse effect on the original authors (a
> third party might claim intellectual copyrights and sew you).

Not possible in fact, mostly. In appearance though, things may differ - you
may have written something first, but can you prove it? 'cos if you can,
you'll win.  

..assuming you didn't write it on commission, or under contract, or while
employed, or... what state/ country are you in again?

> Are there any documented cases of such events? Is this even a real threat?

Of people stealing IP because the originators didn't have proof that they
were the originators? Loads of 'em.




> And why is there a disclaimer? Are we really afraid that we will be
> sued for damages by something we give away for free (as in free beer)?

Yep. It's mostly from consumer law, it concerns the supply of goods - and it
doesn't matter if they are paid for. Also it's like any other action you
take - you have to accept some legal responsibility for it. If it kills
someone..

> Are there any documented cases of this happening? Or is this
> self-inflicted FUD?

It's happened in almost everything else for sure, and probably already in
free software too. Keep them ol' disclaimers. They're there for a purpose.




*I really admire the BSD license, only problem is that it doesn't make clear
that a licencee has the right to grant licences (etc), that's implicit
rather than explicit - tho' it's still very implicit. In an age when it is
at best uncertain that "putting work in the public domain" is even possible,
then it's the best way to "free" work imo.

It should also be remembered that "freeing" work is not necessarily the
point of "open-source". :) Eg crypto software might be open-source (so
people can criticize it and certify (?!!?) binaries), but be completely
proprietary.

IANAL


-- 
Peter Fairbrother

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