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

Arnoud Galactus Engelfriet <galactus@stack.nl> writes:

> > "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.

We already have that concept.  "Ownership".  We even have an extra
thing: "Copyright".  Both of these, under US law, are fully sufficient
to prevent others from "mutilating" your work without your consent.  

If you don't want it mutilated, don't sell it.  Or sell it subject to
a contract that prevents unauthorized modification.

The European system *forces* you to have such a "contract".

> > 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.

We have seen the claim that a change in the color of curtains
constitutes a damage to honor or reputation.

It's not too far to say that a change which implements a protocol the
original author hated would be a damage to honor or reputation.  Or a
change which alters the look and feel of an interface, given the heavy
artistic content that really is a part of such things.

> > 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.

I understand that.  My point is that author's rights are going to be
interpreted by people after the author is dead, who, even if they are
doing their very best, might get it wrong.  That's no harm to free
software, except that the author is *prohibited* from relinquishing
this right, and so the author *cannot* guarantee that his heirs and
the court won't conclude that some change really does harm his honor.
Even if you say "I hereby regard all changes as such things as cannot
harm my honor and reputation", that's no good.  The whole point of the
law is to prohibit author's from making such statements.

Why this restriction on the rights of authors is called "authors'
rights" is beyond me.

> 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
> objective.

Right, but the point is that the author can't--can't--can't promise
not to sue.  A free software license is, at core, just such a
promise.  But in Europe, the author can, at any time, rescind it, and
say "you are violating my authors' rights".

Since changing the color of curtains violates the rights of an
architect, it's hard to imagine any significant change to any piece of
software that would not wreak similar harm to "honor and reputation"
if the author decided to complain: "That totally violates my original
vision; it never occurred to me that anyone would so horribly damage
my program", and bingo--license revoked.

> > 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. 

Except: if that were really true, then the law would be dead, because
an author could effectively renounce his rights.

If the law means anything, it means that the author *cannot* renounce
certain rights, one of them is the right to complain later.  Free
software *depends* on the author promising "I won't complain later".
These seem to be hopelessly contradictory.

I have little objection to legal protection for contracts, and even
things which swing the bar somewhat to make it "harder" for authors to
renounce such rights.  But the notion that they *cannot* be renounced
is ludicrous, and totally kills a jillion freedoms.

Again, it doesn't just kill free software.  It kills Marcel Duchamp
too.  And what about the marvelous Berstein recording of Beethoven's
9th in Berlin after the wall fell?  That would be out under this
regime, since Berstein changed Schiller's "Freude" to "Freiheit".
Whoops!  Violating Schiller's poem, isn't that a violation of
Schiller's rights?  And here Bernstein thought the concert was a
testament to freedom, when actually it was a horrible degradation of
Schiller.  Isn't something wrong with this?


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