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

Thomas Bushnell, BSG wrote:
> In my example case, the heirs *think* they are doing what the author
> wants, but they are wrong, because the author is not as bigoted as
> they are.

Isn't that always a problem when you can't ask the person himself

> "Not much you can do about that"?  Hardly--you could, for example,
> *not have the whole bogus concept in the first place*.

Why do you think the concept is bogus? In principle I think it's
a good idea to have something that prevents others from mutilating
my work. The implementation sucks greatly though.

> > If the author does not complain, then it's reasonable to assume
> > his moral right isn't harmed. And if after his death his heirs
> > do complain, then the court is faced with the question whether
> > this is in line with what the author would have wanted. Of course,
> > if the heirs are good liars and/or the court is gullible, then
> > you can arrive at something that's totally contrary to the
> > author's wishes.
> Or if the heirs are simply mistaken.  
> Your first sentence, however, is false.  Suppose you were right: that
> if the author does not complain, his right can't possibly be
> violated.

I did not say that. I said it would be reasonable to assume that
it's OK if the author does not complain. Otherwise I cannot do
anything even if I have a license. 

> If the author can say "I promise not to complain" then he can cede his
> right.  But the law says he cannot cede his right, so he cannot
> promise to complain.


> Which means, in turn, that he cannot validly give away his software
> under a free software license, because, whether he wants it or not,
> the law *preserves* his right, such that if he later changes his mind,
> he can insist that his "inalienable author's rights" be respected.

He can only insist that a particular modification be retracted
because it damages his honor or reputation. And the court has to
be convinced that it does damage him. If the work is not modified
it would be very difficult for him to assert his moral rights.

> > When he died, his copyright and moral rights went to his heirs.
> > It is now their responsibility to manage those rights in the
> > way the deceased author would have wanted. 
> No.  When property lands in the hands of heirs, they manage it however
> they want.  That's the way normal property does.  

In the US view, copyrights are property rights. Author's rights 
are in the European view not property but natural rights. In some
cases they are treated as property rights for reasons of
convenience. But you cannot argue using the law of property how
author's rights are treated.

> The author's rights
> say that it must not be defamatory of the author, but nothing in that
> says that it is the *author's* determination of "what is defamatory"
> which counts.  And in many cases, great harm can be wreaked by
> well-meaning, *not* dishonest, but still incorrect, guesses about what
> "the author wanted".

Well, in first instance it would be the author who feels harmed
by the modification of course. He's the only one with standing
to sue. And then he has to convince the judge that it is really
harmful to him. So I guess there is some kind of objectivity
in the system, if you consider "what the judge thinks" to be

> > I think you'll find this concept is very much embedded in 
> > European copyright law. In fact it's in the Berne Convention
> > from the very beginning. That's why it's called author's rights
> > and not just copyright (as is the case in the USA).
> The Berne Convention is very carefully ambiguous, permitting both the
> European and the US versions of copyright.  If it were not for that,
> the US wouldn't have gone along at all. 

True. But the BC was drafted by author's rights supporters. That's
why it has "life plus 50" for example. And that's also why you have
the moral rights (article 6bis). The USA simply copied those
provisions and carefully does not pay any attention to them.

> > To clarify: the right to object to mutilations of the work
> > that harm the honor or reputation of the author cannot be renounced. 
> Right.  And the author *cannot* renounce that.  No matter *what* he
> says.


> And if ten years after he dies, his heirs think something is
> defamatory, then they can sue, even if the author says "no changes to
> this work will count as defamatory", precisely because that statement
> by the author is an attempt to renounce something that *cannot* be
> renounced.

Indeed. But if he had said that, someone relying on that could
conceivably use that statement to argue that the change did not
harm the author's reputation. The author apparently regarded
changes like that to be right. 

I'll see if I can get some European copyright law scholars interested
in this topic. 


Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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