A MODEL CODE FOR OPEN SOURCE LICENSING: 0SD 2002

[RD]

As I mentioned to Bruce yesterday, I have been watching the list
discussion on the OSD with a great deal of interest. To update all of
you on the OSD research project (a link to a dated summary of the
research proposal: http://www.cyberspaces.org/osd2002.html):  I have a
couple of students assisting me and we have decided to re-work the
project as a result of our observations and discussions with some
developers who are using open source licenses on the web. 

The goal is to work through each article of the OSD and propose
explanatory notes to accompany the articles that would  include relevant
caselaw examples and practical illustrations from current uses observed
from various websites.  We may propose re-drafting the wording of a
couple of articles. In this respect, we hope to post for review a
proposed MODEL CODE for the OSD that might help clarify some of the
issues frequently under discussion on this list and elsewhere. I am
hoping to have an initial draft available for posting to this list by
the end of the current semester. The initial draft will be an alpha
version and may not include all of the articles.  This is a rather
intense research effort and we want to get it right. I am hoping to get
access to the services of a student for the summer! I will keep the list
informed of our progress.

 
Thanks,
Rod


Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
www.cyberspaces.org
rod at cyberspaces.org

My papers on the Social Science Research Network (SSRN) are available
through the 
following url: http://papers.ssrn.com/author=240132


> -----Original Message-----
> From: John Cowan [mailto:jcowan at reutershealth.com] 
> Sent: Thursday, March 14, 2002 11:02 PM
> To: I.R.Maturana
> Cc: 'John Cowan'; 'Russell Nelson'; brian at collab.net; 
> license-discuss at opensource.org; rms at gnu.org; moglen at columbia.edu
> Subject: Re: OSD modification regarding what license can 
> require of user
> 
> 
> I.R.Maturana scripsit:
> 
> > This is a good point, but it need to be developed.
> > Let me add that once permission is given, Copyright Law can give to 
> > "second" author of derivative work the SAME rights than the "first" 
> > author, on their respective versions.
> 
> Correct.  This is a point that is often not understood.
> 
> >   Rights of licensees on their respective work will be the SAME,
> >   _without prejudice_ of the rights of the author,
> >   AND ONLY IF author authorizes the derivation.
> 
> Exactly so.
> 
> > IP Laws define this protection scheme as "moral" rights. In US, the 
> > usual word used is "copyright". But this is the same 
> concept and all 
> > these expressions (in each legal tradition) are used in conformity 
> > with this WIPO Convention.
> 
> "Moral rights" are a bit different (things like the right to 
> be known as the creator, the right to prevent mutilation of 
> the work, etc.), and the U.S. applies them only to visual works.
> 
> > There is no country differences under IP Laws.
> 
> There are differences, but the ones you mentioned are not 
> among them, true.  What counts as fair use, for example, 
> varies from country to country.
> 
> > This solution fails (or will fail) because the rights on derivative 
> > works are not under control of "first" author. Everyone can 
> derive a 
> > work, as long as it do not try to distribute his version.
> 
> No, this contradicts what you say above and is not true under 
> either U.S. law or the Berne convention.  The *exclusive* 
> right to create derivative works is one of the copyright 
> owner's rights.  For example, you cannot translate a novel 
> from French to English without the consent of the copyright 
> owner (initially the author) of the French version.  Nor can 
> you make a book into a film without the agreement of the 
> copyright author.
> 
> > Authors cannot "grant" rights for derivation because this right is 
> > already given by laws. There is no society nor progress without the 
> > right to derive from Sources, books, ideas, or goods.
> 
> That is not correct.
> 
> > Rights
> > for distribution and for derivation do not come from the 
> same source.
> 
> They do: the Berne Convention and the various national copyright acts.
> 
> > Rights on derivation work cannot be limited: they belong 
> entirely to 
> > "second" authors. A copyholder cannot define a license that make 
> > prejudice to the rights owned by "second authors" on their 
> respective 
> > versions. In fact, a "version-holder" can legally forbid the 
> > distribution of its own derivative work, based on the _same rights_ 
> > than allows the original-holder to forbid the derivation.
> 
> This part is correct: once the derivative work is created 
> *under license*, the deriving author can exclude the original 
> author.  But that original license = permission is required, 
> and if it is denied, the derivative author has no right to 
> create the derivative work.
> 
> > A license which "grant derivative rights" is almost a non-sense. 
> > Authors can *forbid* the distribution of the derivative 
> work, but they 
> > cannot forbid the freedom of people to create derivations.
> 
> That is not the case.
> 
> > Authors cannot claim for rights on derivative works, because these 
> > rights belongs to the author of the version.
> 
> That is true.
> 
> 
> -- 
> John Cowan <jcowan at reutershealth.com>     http://www.reutershealth.com
> I amar prestar aen, han mathon ne nen,    http://www.ccil.org/~cowan
> han mathon ne chae, a han noston ne 'wilith.  --Galadriel, _LOTR:FOTR_
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> 

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