[License-review] veto against Unlicence

Tue May 19 11:54:09 UTC 2020

I heard privately from Till Jaeger, a German lawyer, who wrote this
(published with his permission):

"Under German law the Unlicense would work as a license. The intention
of the
text is obvious and I see no reason for any problems.

Even more, it is the prevailing opinion that even without such license
language a public domain dedication needs to be interpreted as a license
without license conditions (but moral rights still apply). Of course, this
is not true for works which are in the public domain based on other reason
than a decision of the copyright owner (works from public authorities which
are not protected because of local law)."

He tells me that this position is stated in his book /Open Source
Software/,
https://www.beck-shop.de/jaeger-metzger-open-source-software/product/26549144.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com

On 5/16/2020 5:59 AM, Matija Šuklje wrote:
> Die 15. 05. 20 et hora 20:33 Pamela Chestek scripsit:
>> There are lots of lawyers on the list; if any thought that the position
>> had merit I would have expected that person to pipe up.
> I’ll bite … writing in my private capacity, as a Slovenian lawyer.
>
> 	TL;DR: looks fine to me
>
> The Slovenian Zakon o avtorski in sorodnih pravicah [ZASP] (Copyright and 
> Related Rights Act)¹ is pretty similar to the German one, and it shares with 
> France the inability of a full copyright assignment (mostly due to moral 
> rights not being transferable) as well as the inability to dedicate something 
> to the public domain.
>
> Now, if we were to look at only the law act’s text itself, first thing of note 
> is that the public domain is not mentioned even once. It is implicit in the 
> ZASP §58, which dictates that the copyright protection ceases after the 
> appropriate amount of time lapses (typically 70 years after death – see §59 
> and below).
>
> ZASP §73 and below handle copyright contract law – which talks about exclusive 
> and non-exclusive assignments (odd choice of words, I agree) of individual 
> rights.
>
> ZASP §80 handles the needed formalities for such an “assignment” (exclusive or 
> non-exclusive) of economic and other author’s rights – and the only one is 
> that it needs to be in written form. Any noncompliance  with  the  formality,  
> all controversial or unclear stipulations are to be interpreted in favour of 
> the author. The Unlicense is very much in written form.
>
> Interestingly enough, the Copyright and Related Rights Act only covers 
> statutory licenses, so for a license agreement we need to look into the 
> general Obligacijski zakonik [OZ] (Obligations Code)², which in turn oddly 
> enough talks only about “the right to exploit a patented invention, technical 
> know-how or experience, or a trademark, pattern or model”, not copyright. But 
> it is assumed it covers copyright licenses as well.
>
> There you will again find (in OZ §705) the only formality is that a license 
> agreement needs to be in written form. Which with Unlicense is the case.
>
> So I would argue under Slovenian law the formality is met.
>
> You also need to remember that esp. if you think about artists, a lot of not 
> just licenses, but even full assignments happen in very sloppy ways. It is all 
> a very messy business, and in the computer industry we tend to be (sometimes a 
> bit too) organised and clean.
>
> The next question is the content then.
>
> As mentioned before, in Slovenia you cannot assign something to the public 
> domain, so that stipulation’s dead.
>
> But the second paragraph:
>
> ”Anyone is free to copy, modify, publish, use, compile, sell, or distribute 
> this software, either in source code form or as a compiled binary, for any 
> purpose, commercial or non-commercial, and by any means.” 
>
> So, does paragraph cover enough rights to be FOSS?
> 0. Use? – check
> 1. Study? – check
> 2. Share? – check
> 3. Improve? – check
>
> seems well enough for me as a unilateral license agreement/assignment of those 
> individual economic author’s rights to “anyone”. 
>
> The third paragraph is a bit weird, and would probably be subject to 
> interpretation on what the author(s) meant with it – but I would wager a 
> reasonable interpretation would be that the (obviously) lay person drafting 
> this license/dedication intended their code to be 1) released into the public 
> domain, and where that is not possible, semi-implicitly 2) everyone is given 
> the individual rights as described in paragraph 2.
>
> In any case the moral rights remain untouched, but according to ZASP §§17-20, 
> those that apply to computer programs are:
> • right to the first disclosure
> • right to recognition (or not) as the author
> • right to integrity of the work, if such tampering could be prejudicial to 
> the author’s person
>
> I would be very surprised if Unlicense did not get interpreted as a valid 
> copyright license/“non-exclusive assignment” here.
>
> Granted, it is not the best worded license out there, but it meets the legal 
> formality and does mention the individual rights.
>
> Would I suggest using Unlicense? Hell no. CC0-1.0 does a way better job at 
> achieving the same thing.
>
> But I find it extremely hard to interpret it in any other way than it is a 
> valid FOSS license in my jurisdiction.
>
>
> cheers,
> Matija
> —
> 1	http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO403#
>
> 	English translation:
> 	http://www.uil-sipo.si/fileadmin/upload_folder/zakonodaja/
> ZASP_EN_2007.pdf
>
> 2	http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO1263
>
> 	English translation:
> 	http://www.uil-sipo.si/fileadmin/upload_folder/zakonodaja/povezano/
> Obligations-Code_Slovenia_2001.pdf

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