[License-discuss] For Public Comment: The Libre Source License

Russell McOrmond russellmcormond at gmail.com
Wed Aug 21 20:56:34 UTC 2019

On Wed, Aug 21, 2019 at 2:38 PM Bruce Perens via License-discuss <
license-discuss at lists.opensource.org> wrote:

> On Wed, Aug 21, 2019 at 11:00 AM Russell McOrmond <
> russellmcormond at gmail.com> wrote:
>> I am offended by any alleged legitimacy granted to the exclusive rights
>> of software authors being allowed to regulate private activities.
> Try to maintain a collegial tone. You could as well say that you feel very
> strongly about the issue, and explain why. When you say you are offended,
> it's personal, rather than a policy discussion, and it's really easy for
> other people to discount your feelings.

The discussion of these licenses started with what some people believe was
"moral" in relation to private software derivatives. Suggesting that there
was a "moral" component to any policy objection set much of the tone.

The question about whether copyright or patent law should regulate private
activities is a policy discussion that has been ongoing for decades, and
until recently I thought the FSF and OSI were doing compatible work to keep
proprietors away from private activities.

OK, I get it, but we still have the right to create derivative works as an
> act restricted to the copyright holder. You can hardly run from it, it
> exists in some form in the majority of countries. So, do you claim it's
> fair use? If you fight for legal protection of acts in private that would
> otherwise infringe upon the rights of the copyright holder, where are the
> limits? When you run the program to in some way do business with another
> legal entity, should that be the limit? Should you be able to run a server
> for the public, and call it private because it's never distributed?

For the FSF and OSI I believe:

a) Something which the Free Software and Open Source communities should
understand as "a bridge too far" in granting copyright holders control over
citizens lives (a movement from public activities to private ones).
b) A restriction that shouldn't be harnessed by allegedly Free Software or
Open Source Software in those countries that allow copyright to regulate
private activities.
c) A restriction that should itself exclude a license from being considered
Free Software by the FSF or Open Source by the OSI
d) something which this community (Separate from the FSF and OSI due to
their charitable status) and others interested in protecting individual
rights and freedoms from excesses in the technology sector should be
working on, trying to have as many countries as possible carve private
activities out of copyright law.

As to the overall public policy discussion:

1) I don't claim it's fair use, but something that should be clearly a
limitation (not one of the regulated activities, clarifying that all
regulated activities have a public component) or an enumerated exception.

2) Yes, there should be clarity on what is considered "private" when it
comes to distribution/communication of a "work" (fixed creativity regulated
by copyright)

2a) If the "work" needs to be communicated/distributed to a separate legal
entity, then it is not private.
2b) If the "work" is used by an entity to provide a service to another
entity, and the "work" is never distributed/communicated to the other
entity, then there is no copyright related activity involved and thus it is
entirely outside of copyright law.

I know there are people who have a dislike for certain types of business
entities that want 2b to be considered a copyright issue because they
believe it helps them.  It seems obvious to me that allowing software
proprietors to have enforceable terms to licensees that go that far beyond
the activities regulated by copyright will have greater harmful unintended
consequences than the alleged helpful intended consequences.

One of the many problems with legal protection for technological measures
(DRM) was that it allowed encryption to be used as a way to dictate who was
legally allowed to author compatible software.   Only "authorised" software
vendors are allowed to interoperate.  This is essentially what 2b is, but
without the encryption.   Anyone who objects to legal protection for DRM
should also object to 2b.

As to example language, the following are some of examples of how private
activities are being discussed in Canadian law from the 2012 amendments.
This is only the beginning, and there is much more work to do:


29.22 (1) It is not an infringement of copyright for an individual to
reproduce a work or other subject-matter or any substantial part of a work
or other subject-matter if

(a) the copy of the work or other subject-matter from which the
reproduction is made is not an infringing copy;

(b) the individual legally obtained the copy of the work or other
subject-matter from which the reproduction is made, other than by borrowing
it or renting it, and owns or is authorized to use the medium or device on
which it is reproduced;

(c) the individual, in order to make the reproduction, did not circumvent,
as defined in section 41, a technological protection measure, as defined in
that section, or cause one to be circumvented;

(d) the individual does not give the reproduction away; and

(e) the reproduction is used only for the individual’s private purposes.


30.6 It is not an infringement of copyright in a computer program for a
person who owns a copy of the computer program that is authorized by the
owner of the copyright, or has a licence to use a copy of the computer
program, to

(a) reproduce the copy by adapting, modifying or converting it, or
translating it into another computer language, if the person proves that
the reproduced copy

(i) is essential for the compatibility of the computer program with a
particular computer,

(ii) is solely for the person’s own use, and

(iii) was destroyed immediately after the person ceased to be the owner of
the copy of the computer program or to have a licence to use it; or

(b) reproduce for backup purposes the copy or a reproduced copy referred to
in paragraph (a) if the person proves that the reproduction for backup
purposes was destroyed immediately after the person ceased to be the owner
of the copy of the computer program or to have a licence to use it.

I have advocated for the change to be in section 3 of Canadian copyright,
which is there the activities which copyright restricts are listed.  The
clarity that private activities aren't regulated by copyright are better
listed there as a limitation than as part of the section 29 and 30

> As part of my public policy advocacy work I have always tried to convince
>> policy makers (bureaucrats and politicians) to carve private activities out
>> of copyright, and to ensure that contract law can never be abused to
>> circumvent the limitations and exceptions to these exclusive rights.  In
>> other words, I've spent decades trying to ensure the very clauses you wish
>> to add to your "Open Source" license would be unenforceable.
> And your successes are?

These are not personal successes as I'm not alone in this as a global
policy initiative.

The fact that the 2012 amendments to Canada's copyright law has a series of
amendments to carve out additional private activities as exceptions to
copyright law (not "fair dealings" which involves a separate fairness
analysis, but specifically mentioned as enumerated exceptions) indicates a
positive direction.

While the public policy direction might be positive, I wonder if the FSF
and OSI are becoming more and more proprietary minded.   There was a time
when "proprietary software" was considered the opposite of "Free Software",
but given the policy focus some in this list has on the desires of software
proprietors I don't know that this can still be considered the case.

>     Thanks
>     Bruce
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Russell McOrmond, Internet Consultant: <http://www.flora.ca/>

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