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Re: [Steve Lidie <Stephen.O.Lidie@Lehigh.EDU>] Re: xodometer licensing



On Mon, Feb 26, 2001 at 11:20:08PM -0700, John Galt wrote:
> On Mon, 26 Feb 2001, Sam TH wrote:
> 
> >On Mon, Feb 26, 2001 at 05:41:28PM -0700, John Galt wrote:
> >> On Mon, 26 Feb 2001, Sam TH wrote:
> >> >
> >> >>
> >> >> >2. Default copyright was established both in the Copyright Act of 1976
> >> >> >and the Berne Convention Implementation Act of 1988.  The relevant
> >> >>                                                 ^^^^
> >> >> When did you say perl came in to the scene?
> >> >>
> >> >
> >> >1987.  But as was pointed out in a different mail to you, default
> >> >copyright actually began before that.  And if you read the section I
> >> >pointed you to, it also talks about default copyright for works
> >> >created *before the BCIA in 1988.  Furthermore, when the license was
> >> >published is irrelevant, remember?
> >>
> >> No, I failed to argue the point, I didn't agree to it.  NOW I will.  The
> >> Constitution specifically forbids _ex post facto_ laws.  So absent
> >> language in a law concerning pre-existing conditions, it can be assumed
> >> that the law to use is the one in effect when the action happened.  Look
> >> at _Eldred v Reno_ which is winding it's way through the appeals process
> >> for an example.
> >
> >Well, aside from the slim chances _Eldred_ seems to be being given by
> >our legal system, that analysis is correct.  However, it is
> >irrelevant.
> >
> >If someone made a usenet post in 1987, that may or may not have been
> >copyrighted.  But we all agree it is copyrighted if you make one
> >today.  The only relevant question for determining the application of
> >the license to a current situation is when 1) the program was
> >published and 2) when the modification was published.  Since Usenet
> >posts are *now* copyrighted, whether they were at the time of the
> >creation of the AL is irrelevant.
> 
> Perhaps you wanted them to anticipate events a year in advance?  At the
> time the license was written, posting to USENET was putting in the PD.
> The intent is clear, even if the mechanisms have changed.

With a couple of qualifiers (you're big on qualifying clauses).

1.  There wasn't a copyright notice on the post.
2.  The author did not later try to register the copyright.  

Given those qualifiers, yet, posting it to USENET before 1988 was
placing it in the PD.  It would be nice to know actually when the AL
was written.  However, the AL doesn't suggest that USENET postings are
only PD, they might be "Freely Available" instead.  Whatever that
means.  

> 
> >>
> >> >> >sections of the US Code are 17 USC 401 et. seq.  I encourage you to
> >> >> >read them.
> >> >>
> >> >> http://www4.law.cornell.edu/uscode/17/
> >> >>
> >> >> If you aren't going to provide the URL, I will...
> >> >>
> >> >> BTW, look at 17 USC 411a
> >> >>
> >> >>  (a) Except for an action brought for a violation of the rights of
> >> >>        the author under section 106A(a), and subject to the provisions of
> >> >>        subsection (b), no action for infringement of the copyright in any
> >> >>        United States work shall be instituted until registration of the
> >> >>        copyright claim has been made in accordance with this title.
> >> >>
> >> >> Looks like the "copyright by definition" still has a few bugs to work
> >> >> out...
> >> >>
> >> >
> >> >Well, in order to bring a case of copyright infringement, the work
> >> >must be registered. However, this can be done well *after* the work is
> >> >published.  In fact, it is often the first step in bringing
> >> >infringement proceedings.
> >>
> >> Okay, 17 USC 405a, works previous to 1988 need to be registered within 5
> >> years.  So when the Artistic license was written, posting without
> >> registering was equivalent to posting in the PD.
> >>
> >
> >No, it's not.  I don't see where you get that interpretation.  I could
> >have posted to Usenet in 1986, and in 1989 registered that with the
> >LOC, and it would have been copyrighted.
> 
> (a) Effect of Omission on Copyright. - With respect to copies and
>        phonorecords publicly distributed by authority of the copyright
>        owner before the effective date of the Berne Convention
>        Implementation Act of 1988, the omission of the copyright notice
>        described in sections 401 through 403 from copies or phonorecords
>        publicly distributed by authority of the copyright owner does not
>        invalidate the copyright in a work if -
>           + (1) the notice has been omitted from no more than a
>             relatively
>             small number of copies or phonorecords distributed to the
>             public;
>             or
>           + (2) registration for the work has been made before or is made
>             within five years after the publication without notice, and a
>             reasonable effort is made to add notice to all copies or
>             phonorecords that are distributed to the public in the United
>             States after the omission has been discovered; or
>           + (3) the notice has been omitted in violation of an express
>             requirement in writing that, as a condition of the copyright
>             owner's authorization of the public distribution of copies or
>             phonorecords, they bear the prescribed notice.
> 
> Failure to register within 5 years made it PD.  BTW, the patents and
> copyrights office required a "nominal fee" for it, so this wasn't an
> option for many software authors.  Also if you did fail to put notice of
> copyright, in order for you copyright to be not invalid, you had to make
> a good faith effort to rectify the failure on all copies as well as
> register.
> 

So it would have been hard, and it might have cost money.  That
doesn't mean it's impossible.  

However, this tangent is entirely unrelated to the whether the AL is
DFSG free, and I suggest we drop it here.  

[snip]
           
	sam th		     
	sam@uchicago.edu
	http://www.abisource.com/~sam/
	GnuPG Key:  
	http://www.abisource.com/~sam/key

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