Subject:
Re: [discuss] licence problems
From:
Rick Moen ####@####.####
Date:
30 Sep 2008 04:52:41 +0100
Message-Id: <20080930035228.GA1041@linuxmafia.com>
Quoting Jean-Daniel Dodin ####@####.####
> > Nothing prevents someone from posting a work to Wikipedia under the
> > author's choice of licensing terms. The mere fact that Wikipeidia
> > specifies a default licence _in no way_ determines what permission a
> > contributor grants.
>
> interesting affirmation. Nearly any present web site use such wording.
> Do you know of any court claim on this subject?
{boggle}
No such case has a snowball's chance in Hell of ever coming to trial,
both because the legal position you suggest is an obvious way to commit
legal suicide, and because an infringer would be much, much smarter to
simply cease infringing, so notify the property owner, and thereby avoid
court.
Let's be really clear about the scenario we're talking about. Let's say
I create a documentation Web site. The site has a "default licence"
page, that asserts that anyone submitting documentation to it is
implicitly and automatically granting new-BSD licensing to the uploaded
copy (and warrants that he/she is the relevant copyright owner or has
the right to act on behalf of the owner).
You write and then upload a HOWTO whose pages include your copyright
statement and your explicit grant of permission under GPLv2. Let's say,
for the sake of discussion, that the notice to this effect appears on
every page, and states that your GPLv2 grant is the _only_ permission
you are granting.
Some while later, I fork off a derivative of your work, incorporate it
into a commercial product, and claim to the public that my derivative is
available only under proprietary licensing terms. A month after that, I
get a letter from you, reminding me of my obligation under GPLv2, and
saying you've acquired a copy of the product and wish to have a copy of
the "preferred form" (source code) of my derivative. I say, no sir, I
created my proprietary fork in reliance on your implicit new-BSD
permission grant.
You say "What new-BSD permission grant? I specifically marked the
upload as GPLv2 only, and was extremely clear about my insistence on all
derivatives meeting a copyleft obligation. If you weren't OK with that,
you shouldn't have accepted the HOWTO. You have no rights to determine
the nature of my licensing. It's _my_ copyright, and my right to
determine what grants if any I wish to give. Your 'default licence'
page not only does not speak for me; it contradicts my very clear
statement to the contrary on each and every page."
Thereupon, I disagree. You sue me for copyright violation. Now, if I
understand correctly, it's your position that, regardless of how clear
the uploader makes his/her explicit licensing, a boilerplate page of
_implicit_ default licensing that the licensor did _not_ write overrules
him -- and that the defendant will prevail.
Is this correct? It seems to be your position. If so, then, no, I
cannot point to an adjudicated case of that nature -- because nobody's
so reckless as to go to court with such a case, and I doubt anyone
ever will be.
> > All of the above remarks also apply equally to LDP, its wiki, and the
> > "LDP Wiki Default Licence".
>
> yes and no. may be you are right. the sentence
>
> "On any LDP Web site page where no other licence applies expressly,
> the following applies: "
>
> may have no value
>
> and in fact I wonder if it makes sense. But if it don't same applies
> to most of the web space. for example, do we have any right to
> publish, store, archive this mailing list? Many implied licences are
> used all around the net, making the web alive :-).
Many instances of implied licensing indeed exist, and mailing list
archives would be one of them. Licensing can be and often is created by
the conduct of parties, by oral statements, by written statements.
What I'm balking at is the notion that a statement from someone _else_,
other than the copyright owner establishes a right to that copyright
owner's property even if it clearly conflicts with that owner's express
wishes and intent. And that that alleged licence can be relied upon.
I don't think that's a very safe place to be.
An analogy from contract law -- and, as a reminder, the above was
copyright law, not contract law -- would be the concept of a "contract
of adhesion" (http://en.wikipedia.org/wiki/Contract_of_adhesion),
a "take it or leave it" contract, e.g., you leave a fast-food restaurant
and you notice as you walk out the door that the cup of coffee has tiny
text saying that "By accepting this cup of coffee, you agree not to sue
the vendor if you burn yourself."
Courts frown on contracts of adhesion, often invalidate them in court
rulings, and construe any ambiguities against the drafter.
> what should we do if somebody set in the wiki a document with non free
> licence? refuse it?
Yes. Of course. This is supposedly _already_ LDP policy.
> so they must be some criteria to know what is acceptable and what is
> not.
I agree. I've already made a suggestion to that effect that should
cover almost all situations: It's on the wiki.
If someone thinks he/she has an exception, that would be something that
could be discussed individually.
For example, about a week ago, for the first time in 13 years, someone
insisted to _Linux Gazette_ that we should accept his (hypothetical)
submission of an article under a free-of-charge-for-noncommercial-use
licence of his devising. We said no. He asked us to explain and
justify this policy on our licensing and front pages. We said no again.
We said any licence that was approximately equivalent to our standard
one would probably be accepted per the editor-in-chief's perusal of it,
but that his was absolutely a non-starter. And that was the end of the
discussion.
One unreasonable proposed exception in 13 years is perhaps a _tiny_ bit
lucky, but I think not far off the mark.
