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

Thomas Bushnell, BSG wrote:
> Arnoud Galactus Engelfriet <galactus@stack.nl> writes:
> > 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 I transfer my copyright, I can not stop you from harming 
my reputation. That's why the law has the extra provision that
helps me protect my moral rights.

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

This approach means that authors will be forced to accept
any kind of modifications, even those that directly go against
their artistic wishes. The US system thinks this is OK since
you got paid. The European system thinks this is not OK.

> > 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.

Indeed. And the court awarded that claim, so I suppose the judge
found some merit in the claim. 

> 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.

I suppose maybe Theo de Raadt could use his moral rights
against people adding buffer overflows to his code, but
otherwise it might be difficult to come up with this type
of claim. You have to argue something that shows how your
reputation is harmed.

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

The author always retains the right to object to mutilations
of the work. It's his natural right.

> > 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.

Indeed. But the question is, would he be likely to win such
a suit?

>  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".

No, he cannot rescind the license. He can object to a particular
modification on the grounds that that modification harms his
reputation, if he can argue this harmfulness. The license remains
as valid.

> 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.

That's not how it works. First, the "curtains change" thing was
harmful because it radically changed the design/look of the
house. Second, a mere assertion by the author is not sufficient.
There has to be some kind of argument as to *why* there is damage
to his reputation.

> 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.

The motivation for making them unrevokable is to prevent
authors from being forced to accept unconditional surrender
of their works. Then they could be made to look like total
fools by the person acquiring their copyright, and they could
not do anything about it. And yes, they could theoretically
negotiate a transfer on the condition the other guy would not
do that; but given the way copyright licensing works in practice
the chance of that working is practically nil.


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

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