[License-review] For Approval: The Cryptographic Autonomy License

[Henrik Ingo]

On Sat, Apr 27, 2019 at 8:17 PM Lukas Atkinson
<opensource at lukasatkinson.de> wrote:
>>
>> The definition for "Public Performance" is "using the Software to take
>> any action that implicates the rights of public performance or public
>> display of a work under copyright law."  Query how this plays out under
>> EU law specifically. I hope EU readers more knowledgeable than me chime
>> in, but I don't read any equivalent right under EU law, so I don't know
>> what an EU court would do with it. Ignore it because there is no such
>> thing in the EU? Consider it equivalent to distribution?
>
>
> NAL, but the WIPO treaty (Art 8) and the EU Copyright Directive 2001/29/EC (Art 3) and others contain an author's right of “communication to the public” which seems broadly similar to a remote, user-initiated public performance. While I don't know about public performance of software, communication to the public has led to some novel conclusions in the EU, for example that hyperlinking a work constitutes communicating the work to the public. Applying a public performance right to software feels far less surprising, in comparison.
>
> I don't think the CAL should be amended to include jurisdiction-specific terms. It is sufficiently clear without them. But since WIPO is widely implemented international law, referencing it could be most useful. Note that WIPO also equates computer programs with literary works, which is important for the CAL to work.

Just to clarify: I think there is consensus, or at least I don't
dispute, that asserting public performance rights for software is
legally possible. Also in the EU. The objections are:

* The practical use of such assertion is untested and therefore
outcome is unknown. And I don't worry about it being ineffective,
rather the opposite extreme!
(https://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/2019-March/020310.html)
* The open source and free software communities consistently lobby
against inventing new ways to restrict software with assertion of
copyright rights. We don't want to be pioneering the application of a
restrictive legal power that nobody else has used to date.

henrik


-- 
henrik.ingo at avoinelama.fi
+358-40-5697354        skype: henrik.ingo            irc: hingo
www.openlife.cc

My LinkedIn profile: http://fi.linkedin.com/pub/henrik-ingo/3/232/8a7