Re: Web application licenses

[Michael Poole <mdpoole@troilus.org>]

Josh Triplett writes:

> Michael Poole wrote:
>> 
>> For the purposes of making it a purely copyright based license, it is
>> probably desirable to only have such a clause kick in for works based
>> on the software.  Use (whether by the recipient or by third parties)
>> of software is not, as far as I know, a right reserved under copyright
>> law -- but preparing a derived work is.
>
> Agreed, especially considering that if the work was completely
> unmodified and separate, then you could just as easily obtain the source
> of the original Free Software program (assuming it is generally
> available, which will cover the vast majority of cases).
>
> So other than that, you would consider this clause Free?

I would, but as I said before, I have an agenda with respect to remote
application licenses.  I can see arguments against it based on DFSG#6
(discrimination against the field of remotely offering modified
versions of the software -- silly, I know) and the Chinese Dissident
test ("Any requirement for sending source modifications to anyone
other than the recipient of the modified binary" -- although I think
the spirit of the test would accept the clause).

I think the DFSG#6 argument applies more clearly to the original
version you proposed, where anyone running the software in a kiosk
might have to make source code available to users who walk up and do
even a trivial amount of interaction.

The version I suggested might be easily violated by proxy, though.
Suppose Joe and Jane are in cahoots.  Jane modifies an application
under the license and gives the source to Joe.  Joe offers the
modified application, but not the source, to the public.  Each have
done what the license literally requires of them, but not what was
intended.

>> At least one previous discussion has mentioned "public performance" of
>> a work being controlled by copyright, and using this as a lever to
>> achieve the above.  My reading of 17 USC 106(4) suggests that this is
>> not applicable to software.
>> (See http://www4.law.cornell.edu/uscode/17/106.html)
>
> Based on that, it indeed does not seem to apply, assuming that the
> software cannot be construed as an "audiovisual work" (which would
> depend on the software).

As Andrew Suffield wrote, software is classified as a literary work in
the USA (some software is also an audiovisual work).  Bitlaw
remarks[1] that there is no clear interpretation of the public
performance or display rights for software, though; some lawyer will
probably make a career (or at least a small fortune) off that point in
the next decade.

[1]- http://www.bitlaw.com/copyright/scope.html

Michael Poole