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Re: [OT] Droit d'auteur vs. free software?

Scripsit Greg Pomerantz

> The main problem with moral rights seems to be inalienability. As far as
> I understand it, artists can decide at the time of the use of the work
> whether they believe it is prejudicial to their "honor and reputation."

That's a misunderstanding. It is not the artist who decides this.
Sure, the artist may have an *opinion* about it, but the law calls for
an *objective* judgement. And if the use does not objectively violate
the artistic character of the work, the artist's opinion will not help
him in court.

> They cannot promise to never raise such an objection. You seem to be
> implying that by applying the GPL to a work, the developer irrevocably
> divests herself from certain moral rights.

No. The moral rights still exist, but they must be interpreted in the
context of the particular work. If the particular work is created to
be free, the moral right becomes harder to violate.

> Can't a developer GPL a work today, but tomorrow decide that use in
> cruise missiles is not allowed?

He can decide whatever he wants for himself (we do have freedom of
thought), but it will have no effect at all on the decision whether
use in cruise missiles violates the work's artistic character.

> In other words, if that developer walked into court, would the judge ask
> what the artistic character of the work is today, or at the time of its
> initial creation?

That is the same thing - the artistic character of the work logically
cannot change because of the artist's later action.

> Second, I would imagine that a developer can argue or reinterpret
> their initial intent.

Possibly, but that is not a case of moral rights - it is just a matter
of conventional contract interpretation.

> For example, they may never have thought that a particular piece of
> code could find its way into a DRM system.

Stupidity does not create rights. (Opposite in some other parts of the
world where one can become rich simply by being too stupid to imagine
that coffee might be hot).

Henning Makholm                               "Hi! I'm an Ellen Jamesian. Do
                                        you know what an Ellen Jamesian is?"

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