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

Russell McOrmond russellmcormond at gmail.com
Thu Aug 22 01:38:39 UTC 2019

On Wed, Aug 21, 2019 at 8:39 PM Lawrence Rosen <lrosen at rosenlaw.com> wrote:

> Russell, please clarify something for me about your opinion about
> copyright policy: Is any license whatsoever required in order for a private
> party to copy or modify a work of software, that it has obtained somehow,
> for her own private purposes? Or, in your view, is at least a minimal
> license required from the author to do those things?

I'm not a lawyer, and I was offering a policy opinion and not a legal

As is the case with many legal things, it depends.

* What is the purpose of the copying or modification of the work.  If the
modifying is for making software compatible with other software, that is
already an enumerated exception in Canada and does not require permission
from the copyright holder.  If the copying is for backup purposes, that
also doesn't need permission (and so-on with the various enumerated
exceptions that already exist that would apply).
* Where was it obtained from?  "Somehow" is of course vague whether the
source was infringing, which is a different scenario than a non-infringing

Copyright law isn't a static thing, and is constantly changing in each
legal jurisdiction to deal with changes in technology.  There is nothing
absolute that can be said in every scenario, in every jurisdiction, at
every moment in time (past and future).

Beyond what the law says now in any jurisdiction, there are questions of
what we believe the law should be -- and whether any given organization is
going to support or oppose a specific policy direction.  I believe as a
matter of policy the FSF and OSI should be rejecting licenses which
regulate private modification, which is why I'm advocating for that policy
position within this forum (as well as in messages to RMS and others).

I assume, at least in the US under current law, that software (source code
> and binary) is copyrightable as a literary work. And therefore, such a
> copyright is valid also under Berne, even in Canada, despite your wish that
> software not be copyrightable for private use.

You will be very aware that copyright receives national treatment, not
equal treatment.  You don't get US copyright law in Canada any more than my
licenses would be interpreted under Canadian law within the USA.  If
Canadian Copyright law is amended to carve out various private uses, then
licenses that demand permission for those private uses wouldn't be
enforceable under Copyright in Canada.  You could complain about a
contractual violation, but that would get very interesting.  Without
statutory damages, that wouldn't get you far.

This is, however, still separate from whether the FSF and OSI should be
accepting and promoting, rather than rejecting, submitted licenses which
trigger on private modifications.

How can anyone avoid a license for private uses?

a) Work to amend the law in their jurisdiction such that private uses are a
limitation or exception to copyright
b) Avoid using proprietary software licensed to regulate private uses
c) Advocate for the OSI and FSF to reject licenses which regulate private
uses to avoid confusion with those which do not.
d) if (c) fails, work with others to create a fork of the FSF or OSI for
those of us who want to work with organizations that don't cross that
"bridge too far" into allegedly protecting software freedom through
regulating private uses.

> /Larry

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/

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