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

Scripsit bts@alum.mit.edu (Brian T. Sniffen)
> Henning Makholm <henning@makholm.net> writes:

> >> Does this "clear" implication extend to documentation  released
> >> under a Free licence?  Does this "clear" implication extend to
> >> literary, visual arts, or audio works released under a Free license?

> > I'd say yes, *if* the author *voluntarily* made the software free.

> Your emphasis is disturbing:  does the exchange of licenses involved
> in distributing GPL'd software derivative of other GPL'd software
> count as voluntary throughout Europe?

Note that using the word "voluntary" is my own invention here; it's
not a test that I know courts explicitly to use.

But essentially you're right: If the modifier only uses a free license
because that will give him some benefits (such as the opportunity to
reuse code written by someone else) rather than because he himself
believes that software should be free, then it will be harder or
impossible to carry my argument through.

> That is, is Freedom to Modify and Distribute an essential part of
> the artistic character of MySQL, XEmacs, and other works which the
> authors would rather have proprietary, but which they can't
> distribute except under the GPL?

I don't know. Would the authors really harder have them proprietary?
If that is the case, it may be possible to convince a court that the
law does not distinguish between a Big Bad Media Conglomerate the Big
Bad FSF in this respect.

However, since the moral rights do not prevent FSF from countersuing
for massive infringement (viz. GPL #7), the likely outcome of an
attempt to use moral rights to quench a derived work would be that
all of XEmacs, including the original, becomes nondistributable
everywhere. So the author would have to be particularly sinister or
desperate to choose that way out. And I think it would be impossible
for the hypothetical Evil Heirs to convince a court that such an
outcome is really what the author would have liked.

Henning Makholm          "Den nyttige hjemmedatamat er og forbliver en myte.
                    Generelt kan der ikke peges på databehandlingsopgaver af
                  en sådan størrelsesorden og af en karaktér, som berettiger
              forestillingerne om den nye hjemme- og husholdningsteknologi."

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