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Softpanorama Copyleft Problems Bulletin, 1999

[Dec. 17, 1999] Digital Dilemma Intellectual Property Synopsis and Views on the Study by the National Academies' Committee on Intellectual Property Rights and the Emerging Information Infrastructure

[Dec. 17, 1999] Free at Last The Future of Peer-Reviewed Journals

[Oct. 24, 1999]Linux Today Userland.com Patents are the 18th century equivalent of open source

[Oct. 23, 1999] Linux Today LinuxWorld Reverse-engineering the GNU Public Virus

[Oct. 13, 1999] The true meaning behind open source licenses

[Oct. 13, 1999] Intellectual Property and the National Information Infrastructure

The 2BGuide -- opposition for UCITA

[Sept. 18, 1999] Reverse-engineering the GNU Public Virus -- a controversial paper. Stig Hackvänwriting-linuxworld@brainofstig.AI, is writing a book on Open Source Licensing scheduled to be published in a few months by O'Reilly & Associates.

[Aug 11, 1999] Who Takes The Heat for a Bogus Book Review -IW June 28, 1999

While reading customer reviews of her book on writing successful Internet business plans at Amazon.com recently, author Lynn Manning Ross was shocked to find a scathing review purportedly written by "jeff@amazon.com, Seattle, WA," a clear reference to Amazon.com president Jeff Bezos.

"Stupid Book--Don't Waste Your Time!" the review declared. "Ask yourself one question. Did Jeff Bezos need a book like this to create amazon.com? NO! Neither should you. Save your money. " Manning Ross' experience illustrates a tough dilemma: One of the most popular facets of the Internet--the freedom to air opinions far and wide with the click of a mouse--also creates the most potential for abuse.

An embarrassed Manning Ross, afraid people would be dissuaded from buying her book by a fraudulent review, quickly e-mailed Amazon.com expressing her concern. Leah Ball in the merchandising department responded by promising to investigate, but it wasn't until five days later, after several more e-mails from Manning Ross, that the review disappeared.

Manning Ross was outraged at the delay in removing the review, and even more so by her discovery that reviews are not prescreened. "If you're not minding the store, you're damaging the whole publishing industry" she said. "Hackers have been permitted to go on Amazon and post anything they want." Amazon.com is far from alone in letting people post comments online without vetting them. Internet-wide, portals such as Deja.com encourage visitors to rate everything from authors to luxury cars. E-commerce sites such as Amazon.com and CDnow solicit customer reviews. And the most popular feature of many financial Web sites is message boards where users can post their opinions of various stocks.

The problem is that anyone with access to a plugged-in computer can sign in to a chat room or onto a bulletin board under an anonymous screen name. Forums generally provide guidelines for postings, but don't filter comments.

"People used to say things around the water cooler," said Daniel E. Johnson, an attorney with McKenna & Cuneo in Washington, D.C., who has a number of high-tech clients. "But now, with e-mail, everyone has a much easier opportunity to spread their opinions far and wide." Amazon.com spokesman Paul Capelli said the huge volume of reader reviews makes it impossible to screen them. "It's a self-policing community," he said. "Our policy is, if an inappropriate review is brought to our attention, we'll investigate, we'll look at it, and we'll remove it if it's not appropriate." He said that although Amazon.com encourages visitors to follow guidelines, abuse is inevitable on a site that features 2.5 million reviews.

Judith Platt, spokeswoman for the Association of American Publishers, said she hadn't heard of any trend of abusive online reviews and didn't think it was a widespread problem. Maureen Donnelly, publicity director of Penguin Books, agreed, but speculated that such a situation could potentially hurt a smaller publisher.

Online chatters share the same First Amendment right to free speech as the water-cooler crowd, but also the same legal restrictions. In the Amazon case, for instance, Bezos could press fraud charges against the reviewer who pretended to be him, said McKenna & Cuneo's Johnson.

Expressing opinions online also exposes users to the laws of other jurisdictions outside their own, Johnson said. "A statement that's not defamatory in your hometown could be [defamatory] in the jurisdiction where someone picks up the e-mail or the chat room," he explained.

Malice is another key consideration in measuring whether a statement has legal implications.

"If a statement is made maliciously about the person, then the author might have a claim against the critic," explained Johnson, using the bookselling industry as an example. "If, on the other hand, the statement is regarding the author's work, it's unlikely it's actionable." In the financial arena, inappropriate online statements can have serious repercussions. Two Raytheon employees resigned earlier this year after they posted what the defense contractor called "proprietary and confidential information" to Yahoo message boards. Last September, Itex Corp., which operates an online trade center, sued 100 "John Does" for allegedly posting untrue and defamatory statements about the company on a Yahoo board.

The National Association of Securities Dealers regulates brokers' online statements, and the Securities and Exchange Commission has created an Internet enforcement unit to prosecute fraud on the Net.

"Every employee has a duty of loyalty to his or her employer," Johnson said. "If the employee is spreading false information intentionally, or spreading proprietary information, he can be found liable for breaching that duty." But Johnson said people often don't have a financial or malicious motive when they make potentially litigious statements online, he said--they just like to talk. "That's the danger of the Internet," he said. "The blabbermouth in the office now has an audience that stretches far beyond the company itself." The Telecommunication Act of 1996 protects Internet site providers, saying they aren't responsible for information provided by others as long as they have no reason to believe posted information is false or libelous. "But a provider may be held liable for defamation if it knew it was defamatory and failed to take action or has reason to know it's defamatory," said Johnson. Moderated chat rooms, therefore, place themselves at slightly higher risk than unmoderated ones.

[July 31, 1999] Slashdot: Bruce Perens Answers Open Source License Questions see also The Open Source Definition

From: Jason Hammerschmidt jasonh@cyberplex.com

Open Source Licensing, and the latest craze to go public (such as RedHat's IPO) sometimes have conflicting values. When public, you have to cater to your stock holders, this can easily conflict with the open source communities goals. Although you can build a business model around secondary and tertiary services such as support and manuals, etc. there will still be a conflict of interest at the center of it all. Most important, the philosophy and integrity of our community can be easily compromised and undermined by stock holders.  The fact that our community has the same ability to acquire stock means little unless we own the majority of stock, and this is unlikely to happen.  What, Bruce Perens, is your view on this subject?  And how can we ensure the safety of our beliefs?

yes I know this is two questions :) and I also know this isn't a strictly licensing question, but it is very closely related.

Jason,

You'll notice that a some of the companies that are already participating in free software development have been public-stock companies for a long time: IBM, and Apple, for example. Yet, these companies found a way to participate in Open Source. In IBM's case, it's making something of research-derived products it might not have been able to continue in development or market otherwise. In Apple's case, they're attempting to keep up with Linux - truly a daunting task - by being open too. Also, they are trying to return benefit they've already gotten from the community, and they might be able to open some secondary markets in the future from ports of their free software. You'll notice that when we had a problem with Apple's and IBM's original licenses, we used publicity to influence them. Public-stock companies are very sensitive to publicity because their stock price can go up or down depending on what people are saying about them. If their strategy is one that will prevent them from getting effective participation from the community, that won't help their bottom line and the market will notice.

There is no conflict of interest here - it's a quid-pro-quo. If the participation of the community is not important enough, the company will exit the free software arena.

Every for-profit company that participates in free software development will have to find a balance between its own needs and those of the community if it is to participate at all. I have a scale that I use to describe free software participants that runs from benefactor to symbiotic to parasite. I'd put Red Hat in the symbiotic position right now, NASA is a benefactor, and the parasites know who they are :-). Parasites eventually lose because the community is too eager to help out their competition.

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from adamc@email.unc.edu

To what extent have the various "free" and not-so-free licenses been evaluated by people with serious legal expertise? I hear charges against, e.g. the GPL that it won't stand up in court, that it's too vague, and other things of that ilk. Has the FSF ever had a crackerack patent (or whatever area of the law is involved) go over their license with a fine-toothed comb?

Adam,

The GPL has actually had a good deal of evaluation. Richard Stallman has an MIT law professor who helps him, and there has been a law school thesis and some private analysis. There are definitely holes, but there's also evidence that it could be enforced. Ironicaly, the UCITA, a proposed U.S. "uniform state law" that poses us problems because places a ban on reverse-engineering, also has provisions that make the GPL and other free software licenses much eaiser to enforce.

One of the biggest problems with the GPL and all other free software licenses concerns the definition of a derived work. The definition of a derived work in copyright law is mostly concerned with print, film, and sound works, and was formulated before software came along. Thus, it doesn't say anything about how reference should be treated. For example, if you copy my function into your own program, it's a derived work. If you simply call my function without copying it, it's not a derived work according to U.S. copyright law, although you are having the exact same effect that you would if you'd copied the function. It's trivial to make any program a shared library or a callable object through object brokers like CORBA or COM, so you can easily circumvent license restrictions about derived works if you are considering copyright law alone. However, licenses are a combination of copyright law and contract law, and under contract law you can be restricted from performing certain activities that the software author might consider the creation of a derived work, activities that you would otherwise be permitted to do under copyright law. And of course, if you don't except the license, you have no right to use or copy the software at all. The problem is that the GPL doesn't really define what those activities are. That should change.

However, we don't generally have to go to court to enforce licenses, so they aren't getting tested for enforcibility in court, which is the only real test. Publicity is our primary enforcement tool, and it's surprising just how effective that has been so far.

I am soliciting attorneys to do pro bono work (donated work for the public good) to help address problems with licenses. There's a BOF about this at the LinuxWorld conference in August.

---------------------------

from parkerd@tegris.com

Hi Bruce,

I recently started programming open source software for Windows (due to my unfamiliarity with Linux programming), and organized various OSS projects under the title of "Neon Goat Productions". However, I don't feel that I have a good grasp on the ideas behind some more advanced licensing techniques. First of all, if I release software under the GNU GPL, or other licenses, do I (as the sole owner of the copyright) have the option to change the license later on, either to another OSS license, or a closed source license? I don't intend on doing anything like this, but I definitely want to have the ability to control the future of my work. Also, if I release a project under the GPL, am I allowed to use portions of my GPL'd code in an independent, commercial program? I don't want to end up rewriting the same code for another job, just because the licenses aren't exactly the same. Finally, I am a bit unclear on releasing software under two licenses (for example, having the choice between either the GPL or the Artistic licenses). Since the Artistic license is less restrictive than the GPL, what would be the difference if the software was only released under the Artistic license instead of having an either/or clause?

Sincerely,

David Parker

David,

If you are the copyright holder of a program, you may issue that program under any number of licenses simultaneously. While you can't take the GPL back once you release a GPL-ed version, there is nothing that compels you to release later versions under the GPL. But this is all ignoring the issue of other people's contributions to your program.

The situation is much more complicated when other people contribute. They own the copyright to their modifications.

You can deal with this in several ways if you want to keep the option to distribute your work under a different license:

1. Simply don't use their contributions in your commercial product.

2. Insist that they sign the copyright of the modifications over to you before you before you will put any of their modifications in your main source thread. This is what FSF does, so that they have the option to revise the GPL later on without having to go to everybody who made a modification and ask their permission.

3. Use a license like the Netscape Public License that gives you the right to distribute contributed modifications under other licenses. Note, however, that the NPL only requires that for modifications to your files, and that if somone creates a separate file and links it in, they are not required to give you the right to distribute that file under other licenses. Of course you can write your own license that says something different.

Regarding the Artistic license, I'd suggest that you do dual-license with the GPL if you choose to use the Artistic, becuase that makes it absolutely clear that your work can be united with other work that is already under the GPL to make one product. I also don't like the language of the Artistic license. I discuss why near the end of my article on the OSD.

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from: John L Grantham grantha@hannover.sgh-net.de

I note that the companies that you say deserve praise for their efforts, Apple and IBM, are both hardware companies that in effect happen to produce software. In both cases, they make far more money from their hardware than they do software, so in effect they have less to lose by giving an open source license a shot, but have much to gain in the form of increased sales of hardware.

But what about companies that are primarily in software? How do you see them making money off of open source, when that is after all their main motive--earning cash? In other words, why buy an open source package when you can download or copy it for free? Finally, are there any large "traditional" software companies (ones from before open source became a buzzword) that you see making commendable moves like IBM and Apple? Best regards, John a.k.a. Ethelred

John,

Obviously, it's easy for companies that vend free software as an accessory to hardware to make money, because it's a lot easier to copy a disk than it is to copy a PC! Companies like VA Linux Systems come to mind.

If your business must primarily be software, not support, not anything else, you can't make everything free. This, for example, is the strategy of Sendmail Inc., which makes proprietary add-ons for the free sendmail mail delivery agent. Digital Creations, makers of the Zope web content management software, aren't quite a software pure-play: They give away their core software, and they sell services to customize that core to vertical markets for specific customers, newspapers for example. Some of that customization work may not make its way back into the free product. They have also announced some proprietary add-ons for Zope.

Yes, there is a large traditional software company making a commendable move. Unfortunately, I can't tell you who they are yet. It's not nice for me to pre-empt other people's announcements - I did that to Troll Tech once and they got (justifiably) very annoyed with me.

----------------------

from: Bill Gladen

With all of the companies that are coming up with Open Source Definition compliant licenses, it is getting difficult to keep track of what the various licenses actually contain. Is there any work being done on a template license that companies could just post a delta of?; For instance, if you had an Open Source Base License O, which contained clauses A-N, then companies could just draft their license which stated "This license modifies O in the following ways: remove clause B, replace clause C with clause C', and add clause T."

I am certainly encouraging new entries to use one of the existing licenses rather than complicate the situation with another incompatible license. However, when the choice is having them make their own license or not release the software under an Open-Source-Definition-compliant license at all, I'd obviously rather see them release the software.

We are still in the learning period where companies are figuring out how to meet their own needs while participate in free software while meeting their own needs at the same time. This is sort of winding down now, and in a year or so we'll be able to get together and draft some standard licenses. I'd prefer not to have companies release deltas to a license, because that isn't much better than having them make their own licenses if the delta gets big. I'd just want some check-boxes for license options that would all be qualified under the Open Source Definition.


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Created June 1, 1998; Last modified: July 07, 2013