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

Wed Aug 21 22:05:15 UTC 2019

On Wed, Aug 21, 2019 at 3:39 PM Christopher Sean Morrison via
License-discuss <license-discuss at lists.opensource.org> wrote:

> > You are trying to state copyright law in reverse, presuming the right to
> control culture and science is natural and any limitations on that (such as
> the protection of privacy rights) is a restriction.  The participation in
> and protection of culture and science in article 27 seems pretty focused on
> public activities, not private ones.
>
> That’s not what I read.  The point was specifically about having put labor
> into something one is choosing to share, subject to terms, something which
> they do not have to share, and which is not any commentary on reverse
> copyright law or law of any sortt  I don’t know where I’d stand on it with
> respect to intellectual property, but it certainly applies to physical
> property:

This list is "license-discuss at lists.opensource.org", which suggests to me
it is about open source software licenses.  This means that it is entirely
about copyright, patent, trademark, contract and any other laws that relate
to software licenses.

Whether people realize it or not, this is a policy forum feeding into the
legal process. It it not only politicians that make laws, but courts as
well.  The licenses we discuss can become precedent in countries where
courts are charged with interpreting them in the context of domestic law
and other precedent.

If there was a forum discussing submissions to various governments on how
they should regulate cloud companies and/or employers use of technology,
the conversation would be entirely different as the consequences of that
public policy would be entirely different.

Analogies between physical and "intellectual property" (statutory
monopolies) often fail because people get confused about what is owned by
who.  In the case of copyright what is owned by the proprietor is the
copyright, not every "copy" made (note that copying is only one of the
bundle of rights, and copyright isn't all about copies).  By owning the
copyright they can sell and/or license all or part of the bundle of rights
listed under copyright in each jurisdiction. Owning a copyright is more
like owning an insurance policy than owning a physical thing.  If I take
out a life insurance policy on you that doesn't make me a slaver owner as
what I own is the insurance policy, not you.

On the question of "put labour into something", read:
https://en.wikipedia.org/wiki/Sweat_of_the_brow
. Canada and the US both require skill and judgment, and do not care how
much "labour" you put into something intellectual in nature.

Copyright law in most jurisdictions are not as proprietary as to believe
that putting labour into something intellectual automatically gives you the
right to restrict everything done with that creativity.  It only offers a
limited specific bundle of rights with additional exceptions.

To quote Lessig:  https://en.wikiquote.org/wiki/Lawrence_Lessig#OSCON_2002

Creativity and innovation always builds on the past.
The past always tries to control the creativity that builds upon it.
Free societies enable the future by limiting this power of the past.
Ours is less and less a free society.

While Lessig was talking more generally about the regulation of creativity
and innovation with laws like copyright and patent, it is a good way to
look at the conversation within this open source forum about whether we
should be "enabling the future by limiting this power of the past",
especially when it comes to private activities.   While there is a public
policy purpose behind regulating public activities to protect the interests
of society, I do not see how there can be a public policy purpose to
allowing creators and innovations to restrict private activities.

> I do not believe copyright holders have any legitimate reason to be
> granted the ability to regulate private activities, and believe the law
> within each country should clarify private activities as outside copyright.
>
> This is a bit of a “No True Scotsman” fallacy.  Some will certainly feel
> that having put their own labor into making something is perfectly
> -legitimate- grounds for imposing terms.  That is literally the premise.
>

Except, that premise has been rejected by most legal jurisdictions
including the USA and Canada.

Copyright law requires skill and judgment, not labour, and is a limited
bundle of rights with exceptions, not an ability to enforce terms around
all activities.

I believe it is the attempt to use software licensing terms to regulate
cloud providers, or protect employees from unscrupulous employers, or other
similar public policy goals that gets too close to the "No True Scotsman"
fallacy.  I consider the alleged intended consequence relating to these
public policy issues to be outside of the jurisdiction of license
agreements, and thus it is the unintended consequence directly related to
the laws governing license agreements this forum should be focused on.

This conversation has many sub-threads in it, with the following being the
ones I can think of now.

* What areas of law are related to the enforceability of software licenses.

* Should documents being called "license agreements" contain personal
political statements from proprietors which are never intended to be part
of the legal interpretation of the document?

* What are the existing contours of these laws in each jurisdiction

* As a matter of public policy, which policy directions should be
considered positive for the interests of society rather than only positive
for specific special or proprietary interests.  In this forum the context
is software freedom, which is the basis of the OSD.

* Whether the OSI should include in their analysis of the suitability of a
license how that license might impact legal precedent if/when interpreted
by courts?

* Whether discussions about whether and how specific business practises
should be regulated are on-topic within software licenses, or within this
forum that is intended to be focused on discussing software licenses.  Many
of us have expressed agreement with the need to regulate specific business
practises, but disagree that these discussions are on-topic for software
licenses or software license forums.

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

Please help us tell the Canadian Parliament to protect our property rights
as owners of Information Technology. Sign the petition! http://l.c11.ca/ict/

"The government, lobbied by legacy copyright holders and hardware
manufacturers, can pry my camcorder, computer, home theatre, or portable
media player from my cold dead hands!" http://c11.ca/own
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