discuss: licence problems

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Previous in thread: 3 Oct 2008 03:54:46 +0100 Re: licence problems, Rick Moen
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Subject: Re: [discuss] licence problems
From: Rick Moen ####@####.####
Date: 3 Oct 2008 03:54:46 +0100
Message-Id: <20081003025443.GR1041@linuxmafia.com>

Quoting Jean-Daniel Dodin ####@####.####

> to go back to the web page problem, you mean that we can keep the present
> "© The Linux Documentation Project, 1992-2008. Site credits. " is good
> for the footer? wouldn't it be usefull though to add links to the
> default licence and the manifesto?

Your main question is, essentially, what would I recommend as an
informational footer for the wiki's pages.  Answers to that question
logically should hinge on those to a subsidiary question, of what's
vital enough to require unconditional display at the bottom of each and
every page (or is for some reason necessary to put there).  

Call me a pessimist if you wish, but I suspect there might be little
consensus on the second question -- in particular, about _why_ it's 
desirable/necessary/useful to display particular data at the bottom of
all wiki pages.  But maybe not.  

Here's one footer we might use.  What the heck:  I'll call it my
suggestion -- though it's strictly off the top of my head (not the
product of careful contemplation).  Square brackets indicate where some
text is also a hyperlink anchor.

    [ About LDP ]    [ Manifesto ]    [ Licensing ]    [ Get Involved ]

I personally think unconditional page footers should aspire to
minimalism:  All possible detail should be on linked subpages.  This
makes the pages cleaner, and also makes it much more likely people will
find what's relevant to them, instead of burying them in text.

Implicit in my answer is my personal view that literally nothing in the
current footer contents deserves to be there.  Some of that is a bit 
misleading (the part up to the comma, which makes a slightly doubtful
and un-useful copyright ownership claim); some of it is interesting
information, but IMO doesn't belong in an unconditional footer (dates of
LDP's operation, site credits).

Before I give my opinion about what is most useful to have on the page
linked from the word "Licensing", let's review the way site
contributions are going to work, mechanically, so that we all have the
same understanding on that fundamental point.  We'll also need to cover
both the legal and pragmatic limits of copyright encumbrances on
collective works.

A user arrives at the wiki site and either starts a new page or
initiates an edit of an existing one.  If it's an existing page, then it
has a viewable prior edit history in Mediawiki that identifies who wrote
what, and ideally (at least for HOWTOs) also has, inline inside the page
text, someone's explicit copyright statement.  A copyright statement 
consists of something like

   Copyright (C) 2008, Owning Username [1]

...at bare minimum (a point I'll come back to, below).  We specifically
want contributed HOWTOs, past and present, to bear inline copyright
statements so that this vital information is part of the document
itself, doesn't exist only as metadata inside some document-management
software's database tables.  There are innumerable reasons why this is
the case, starting with the fact that -- to my knowledge -- the tools
for producing static, canonical, versioned reference documents from
snapshots of wiki text are not going to extract contributor identities
from database metadata.[2]

It's unfortunate that Mediawiki's contributor tracking is a poor match
for the process of rational authorship acknowledgement in formal,
released documents, but it's a fact that must be dealt with:  We can't
just ignore it -- and, in particular, _maintainers_ of LDP documents who
accept wiki contributions have to deal with it, when they decide what
wiki contributions to accept, and when they prepare static document

There is no legal obligation on the maintainer of a creative work to add
a copyright-notice acknowledgement of any third-party's work -- though
it can be a tort (a civil wrong) to _strip_ one that is lawfully present
and has legal merit.  That is, it is _not_ a tort to accept patches from
J. Random User and omit "Copyright (C) 2008, J. Random User" from the
inline notices in the work's text.  (Such an omission might be unwise, but
that's a different matter.)  The existence of a copyright notice is a
warning/advisory to the public, letting them know of a (claimed)
ownership interest.  However, the ownership interest either exists or
not, independent of whether there's a notice.

Let's talk about when copyright ownership does and does not come into 
existence, as a strict matter of legality (as distinct from when adding
a copyright notice is _required_ for a contribution that the maintainer
has decided to accept into the static long-term document, which is never
-- and also as distinct from the pragmatic question of when adding one
is _a good idea_, which is often but not always).

For a contributor to gain an ownership interest in his/her contribution
through operation of copyright law, the extent of the work must be more
than trivial, and it must be original creative content that can be
judged to be "expressive" as opposed to strictly "functional".  (I am
not certain how widely these particular concepts apply outside USA
law.[3]) The creator of a 10-line shell script almost certainly cannot
prevail against copyright infringers, because the judge would almost
certainly rule that his/her script falls below the bar for a
non-trivial, creative work.  

Similarly, my correcting an LDP member's grammar, punctuation,
capitalisation, spelling, and _even_ English idiom almost certainly
doesn't give me any copyright claim over the work I've improved:  not
enough expressive, creative content.  Ditto if I merely corrected a
document's claims of fact, and so on.  Ditto if I merely appended a
recitation of some body of fact.  Actually, one of the classic copyright
cases in the USA was "Feist Publications v. Rural Telephone Service":
The judge ruled that plaintiff Rural could not get copyright damages
when Feist reprinted its telephone directory listings ("white pages"),
because a mere alphabetical list of names and telephone numbers is not
copyrightable in the first place -- insufficient creative (expressive)
elements.  http://en.wikipedia.org/wiki/Feist_v._Rural

Computerists often complain that there's no deterministic bright line
between what's expressive and what's functional.  They're correct, but
that _is_ the sort of thing you find in law.  Judges are not compilers,
and the fact that they exercise judgement is not a bug.

Anyway, contrary to what is often alleged in the Linux community, not
all work on a collective project gives the contributor a copyright
ownership interest.  But the border between what actually does create
title and what doesn't -- a distinction determined by the nature and
extent of the work -- is unfixably fuzzy.

That describes the legal limits of copyright encumbrance.  Now, let's
turn to the pragmatic limits:  Ideally, when an LDP document maintainer
notices someone else's fixes to his/her document on the wiki, the
maintainer will look over the diff, and weigh how extensive,
substantive, creative, etc. that work is.  (Over time, this could require
looking through several diffs from a given contributor, as the net may
be substantive even though each one separately looks trivial.)  I
notice, by the way, that we already have at least two wiki contributors
with no personal wiki pages:  ArianeKeller and RickMoen.  ;->  That 
means, among other things, that a doc maintainer might not know how to
contact a contributor, e.g., to say "Hey, dude, you've done so much
work, would you like your name added to the copyright statement and

So, when the maintainer decides to issue a new full release of the
static document, he/she may have a judgement call to make, about whose
names to add, and where.  With my own docs, I've so far found it more
than sufficient to add thanks to people by name in the doc's inline
changelog / revision history / acknowledgements section.  E.g.:

In any event, it's a good idea for the maintainer to make a conscious
decision about which wiki patches to accept:  If someone includes
unreasonable conditions on the contribution -- and, remember, nothing
LDP does can prevent that from being a possibility -- then he/she should
strongly consider excluding the contribution, probably even going so far
as to revert the change on the wiki.

Getting back to the matter of how the contribution process works
mechanically:  At the point where the user starts a page edit buffer,
there's a footer down at the bottom of the edit page.  We can and should
decide what _that_ footer says.  This is LDP's golden opportunity to:

1.  Acquire, if possible, the user's consent to the licence that the
    existing document is under.  Remember, _regardless_ of LDP's 
    preference in documentation licences, many, may of our existing
    HOWTOs, etc., are under a variety of licences.  Most of those
    permit third-party maintenance, so the docs covered by those 
    licences _should_ be copied to the wiki.  By law, their licensing
    terms thus go with them.  For example, the Linux User Group HOWTO
    has this licence:  

       Copyright (C) 2003-2007, Rick Moen. Copyright (C) 1997-1998 by
       Kendall Grant Clark. This document may be distributed under the
       terms set forth in the Creative Commons Attribution-ShareAlike 3.0
       licence at http://creativecommons.org/licenses/by-sa/3.0/, or, at
       your option, any later version.

    Unless Rick Moen and Kendall Grant Clark say otherwise, that is the
    licence that prevails for the HOWTO:  Contributions to it via wiki
    or otherwise are useful only if offered under the same licence
    (or, hypothetically, if Moen and Clark permit, a compatible 
    licence like new-BSD.

    Just to really clear on this, if the edit page's footer were to 
    say "By submitting this, you're agreeing to license your 
    contribution under GNU FDL 1.2 or later with no invariant sections,
    no front-cover text, and no back-cover text", and the user doesn't
    think to say "I also grant CC BY-SA 3.0", then LDP (and Moen and
    Clark) are screwed and cannot use the patch.

2.  Encourage the contributor to provide, somewhere, a real name and
    real e-mail address.  (This is non-essential.)

3.  Re-stress that the maintainer appreciates all help, but will need
    to decide which contributions to merge into the static document
    using his/her own judgement.  Tactfully stress that licence 
    conflicts make contributions unacceptable.

The edit page's footer needs to be a great deal more terse than the
above.  ;->

Somewhere, we need to give maintainers guidance about these matters, and
the relationship between the wiki instance and the maintainer's static

Next, getting back to the other question I promised to return to:  what
is most useful to have on the page linked from the word "Licensing.  
For reasons I've covered above, the wiki _main_ footer's link for
"Licensing" cannot properly be what's on
http://wiki.tldp.org/LdpWikiDefaultLicence .  Jean-Daniel, I mean no
disrespect of, or criticism of, your (and others') work on that page.
There's nothing wrong with that page.  However, as written, it doesn't 
answer the question of "If I edit existing HOWTO [foo], what licence
am I granting?"  In fact, if, say, we're talking about the Linux User
Group HOWTO or any of many other non-GFDL HOWTOs, it's actively

What I'm suggesting is that there needs to be a separate, different page
-- one that might indeed also link to LdpWikiDefaultLicence, that
clarifies the situation for people who edit existing documents. 

Maybe LdpWikiDefaultLicence can be adapted and renamed to clarify that
it specifically concerns _new_ documents, as opposed to edits of
existing ones.

Last, to explain my remark that "Copyright (C) 2008, Owning Username"
is what a copyright statement comprises _at bare minimum_:  A copyright
owner who says nothing more than that, issues no other licence anywhere
concerning that creation, by word or deed, has created a proprietary
work.  Why?  Because the rights to redistribute, and to create and
distribute derivatives, are reserved to the copyright owner by default
operation of copyright law.  Those rights are never issued unless
specified by some overt statement or conduct of the owner.  (This, by
the way, is why open source licensing exists, to overcome and modify the
default grant of rights that are inherent in copyright law, absent a
specific giving of rights to the contrary.)  

Even though practically anything -- recorded voice conversations,
scribblings on cocktail napkins, gestures captured on videotape -- could
in theory be used in court to establish a copyright owner having granted
a licence, reasonable people tend to want something more definite and 
convenient.  So, it's most common, convenient, etc. to append a licence
indication to the copyright string.  It's where people look for it.

The wiki-using community have gotten into the habit of omitting specific
inline licence statement _and_ also omitting inline copyright credits.
It's part of the culture.[4]  LDP is going to run up against that cultural
tendency.  I would strongly suggest that it's in our long-term interest
to keep pushing people who construct documentation on the wiki --
anything that's aiming at formal static releases -- to either start out
with a specific inline copyright statement and licence, or at least gain
one before any static formal release.  Because otherwise, we end up with
a poorly documented mess, and peabrains who say "Well, they can go read
the revision history on the wiki" are missing the point.

I've already written a too-long posting (this one), and am out of time,
so I'm not even going to attempt, at this point, to draft the second
page I speak of.  And, at this point, it seems wise to wait for comments
and discussion, anyway.

[1] The glyph for the letter "c" inside a circle can be used instead of 
"(C)":  The two forms are equally acceptable to judges, as notice to the
public of someone's claimed copyright interest.  (Please understand that
the indented line is a _notice_, not a "copyright".  The latter
illiteratism is very common in computerists' writings about the law, but
is very misleading.  The correct meaning of "copyright" is "the abstract
ownership interest that the creator of a creative work such as a written
text gains automatically at the moment of creation".)  

Lawyers recommend that copyright notices include_both_ the word
"Copyright" and your choice of either "(C)" or the glyph.  (This is 
recommended as a belt-and-suspenders measure, if I recall correctly:
Probably, someone lost or almost lost a copyright infringement case who 
did otherwise, so everyone now takes extra precautions.)  After that,
the notice should list the year(s) of creation, and the owner's

Lack of the word "Copyright" on the existing footer is one of the things
wrong with the current footer:  The notice string is slightly wrong for 
a copyright notice (leaving aside the question of whether a copyright
notice should be there at all).

[2] Nor would we want this generation of author credits to become an
automatic process, actually.   If it were, then anyone could make
trivial edits to an existing HOWTO and thereby become shown inside the
document inline credits as a HOWTO maintainer alongside the guy(s) who
do(es) the real work.

[3] However, see section "Other Countries" in the Wikipedia article I 
reference about the Feist Publications case:  In general, it seems that
other countries have at least partially decided the matter in similar

[4] And yes, I'm looking at you, David Greaves and your
http://linux-raid.osdl.org/index.php?title=Overview&printable=yes thing
that you made such a political stink over -- while blowing off my
suggestion that you put a proper copyright notice and licence indication
in it.

Previous by date: 3 Oct 2008 03:54:46 +0100 Re: Limits on doc licensing's significance, David Lawyer
Next by date: 3 Oct 2008 03:54:46 +0100 Re: licence problems / wiki pages footer, jdd
Previous in thread: 3 Oct 2008 03:54:46 +0100 Re: licence problems, Rick Moen
Next in thread: 3 Oct 2008 03:54:46 +0100 Re: licence problems, David Lawyer

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