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Re: Questions about legal theory behind (L)GPL

On Thu, 20 Jan 2005 18:59:23 +0100, Martin Hardie
<m.hardie@student.unsw.edu.au> wrote:
> It's nice to see some FSF doubters (I have just been reading this thread in
> the archives) and questioning of their speech based copyright vision. I think
> I agree with Micahel that precedent is fairly against the FSF and Lessig
> views of the proper interpretation of copyright.

Whoa there, Tex.  I disagree with some of the FSF's claims about the
legal interpretation of the GPL, and I think that crying "preliminary
injunction" is going to get them in trouble one of these days.  But I
don't question their vision of using copyright license to create, and
encourage the expansion of, a software commons.  I'm not anti-FSF,
just pro-the-relatively-sane-face-of-the-FSF (the one that says
"releasing part or all of your code under the GPL can be good for your
business model and your soul", not "everyone must be naked!  caught
you linking to readline!  take down your pants!").

> Its also nice to see some people talking about how TMs and other things might
> restrict the "freeness" of open source. There has been too much junk said by
> people that it purely a licence issue and everything else including US Export
> Regulations dont interfere with the freedom of the licence!

Trademarks, in my opinion, don't in and of themselves restrict the
important freedoms of open source.  Over-zealous attempts to enforce
trademark preemptively could, given that it is costly to be taken to
court even when you've got a solid defense.  So far I know of no case
of genuine abuse of a trademark by the stewards of an open source
project, except perhaps by RedHat, and I don't lose sleep over that
one either.

The conduct of certain branches of the US government with regard to
cryptography has been regrettable (and at times a sort of black
comedy), but what does this have to do with the freeness of licensing

> Anyway, has anyone here ever thought obout the way open source is produced and
> organsied in terms of trusts or fiduciary obligations?
> I was in a series of Aboriginal art acses in Australia. the last one the court
> found that "the traditional owners of the corpus of ritual knowledge" from
> which an artwork was derived painter and sold by an artist from their group
> had an equitable right to restrain 3rd parties.
> I have done a bit of thinking trying to think of another way of looking at
> open source other than straight copyright/contract law and it seems to have
> similarities with this Aboriginal situation - their is a community of
> knowledge producers who produce in common the stuff of their life, they are
> all able subject to certain internal protocols to distribute, sell, produce
> and reproduce, but equity restrains them or any third party (even with only
> implied notice) from using the knowledge in a manner inconsistent with their
> tradition and internal protocols. A system of trust operates within the
> community of producers and users which is sufficently well known to bind
> third parties not to use the material in a manner inconsistent with the
> communities principles.

Very interesting.  It sounds to me like that would fit into an
expanded definition of "moral rights of the author" -- a sort of
"moral rights of the giants on whose shoulders we stand".  Very
post-post-modern.  However, industrial societies that take up the war
cry of collective dignity over individual freedoms don't have a very
good track record.  I think I'll stick with the rights of the author
over the the rights of the techno-tribe.

- Michael

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