Subject:
Re: [discuss] Limits on doc licensing's significance
From:
Rick Moen ####@####.####
Date:
5 Oct 2008 00:38:44 +0100
Message-Id: <20081004233842.GI1041@linuxmafia.com>
Quoting Jean-Daniel Dodin ####@####.####
> Rick Moen a écrit :
>
> > You've quibbled here with wording but (slightly vexingly) ignored
> > what I actually meant:
>
> please, Rick, your participation *is* invaluable, but you feel often
> very easily offended. Don't. We are, here, on good company, good
> fellows, all aimed to the same goal.
We are, but (1) you're rather melodramatically exaggerating your reading
of the phrase "slightly vexingly". Since English isn't your native
tongue, this is probably accidental, but you should be aware that
"vex/vexed" is an extremely mild verb, connoting a very polite,
drawing-room level of reproach over some perceived form of avoidable
harrassment. (2) All I've really said, in effect, is that I didn't
appreciate David carelessly muddying the perspective that I had
carefully and concisely constructed in my brief summary.
However, that having been said, I _do_ get really weary of computerists
ignoring reasonable real-world perspective, obsessing on irrelevant
points of abstract theory and/or improbable edge cases that don't
matter, and attempting to treat the legal system like a Turing machine
-- especially when I've _immediately before that_ been at some pains to
point out why those approaches aren't fruitful.
> > That depends on what you mean by "_just_ paraphrase".
>
> If I understand well you mean (and it's pretty obvious, just thinking
> about it) that fact being not possible to copyright, sentences
> describing simply the fact can't be neither. In (very) short, only the
> "humor" of the text, his "style" can't be copied
Above and beyond that, David was actually pointing out a significant
point of law, that should be heeded (and which I do thank him for
reminding us about): In legal theory, a HOWTO's (or similar work's)
overall structure that is inherent in the ordering of the sentences --
its larger-scale composition structure -- _could_ itself include
copyright-eligible elements, which thus could not be lawfully copied to
a new work without permission.
This is a relevant concern -- at least in theory -- if an LDP author
decided to remedy the proprietary licence status of an existing,
unmaintained HOWTO by merely paraphrasing each sentence of the existing
HOWTO in his own words. David's point was that so doing is not legally
sufficient to avoid copyright infringement.
That point is well taken (though there are real-world reasons why I
think it's not going to arise). And there is a profound lesson for
computerists, hiding in that scenario, about copyright: A new work
might be written with literally not a single word in common with an
earlier one, and yet nonetheless be ruled to infringe its copyright.
This is a useful lesson for computerists because, almost always, they
imagine that judges in copyright suits would simply do word matching,
and no matches above some level of granularity would mean no
infringement. No, that's not how it works at all: The law has a
concept of "expressive elements" (as opposed to functional or strictly
factual ones) of a creative work's tangible form being entitled to
copyright monopoly. (_Ideas_ are not copyrightable, however.)
Further explanations of "expressive elements" in copyright context:
http://www.ivanhoffman.com/infringement.html
http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node5.html
http://www.innovationlaw.org/projects/dcr/copyright.htm
The reasons I don't think the legal risk in question is likely to ever
be much of a real-world concern for LDP are: (1) There's not a lot of
creativity and expressive, artistic effort in the large-scale
organisation of your typical LDP HOWTO, and an author attempting to
assert otherwise in court is going to look pretty dumb to the judge.
(2) It'd be really rare for a new author to go to all the trouble of
paraphrasing an entire HOWTO and not also want to make _some_
improvements or changes to its large-scale structure.
And, now, look back at the above seven-paragraph digression that I've
had to indulge in, to understand where I'm coming from about getting
"slightly vexed": I'd made, upthread, an ultra-concise, carefully worded,
list of ways in which software people tend to horribly exaggerate the
severity of documentation licensing, tending to destroy any reasonable
perspective on the problem. And what does David come along and do? He
seizes on something tangential to what I saying, and (in my view) blows
perspective out of the water. Oh well. I hope this has been useful in
some way.
> > Can you name even _one_ instance in LDP history of someone _really_,
> > seriously wanting and needing to do this?
>
> just a present exemple. Two HOWTOs aiming to howto edit documents have
> been written, one with explicit licence (mine), the other without any
> (randy's). Strictly speaking it's impossible to merge them, however I
> proposed to merge and Randy agreed, it was simply obvious that they
> where made in this goal. In most case this is not a problem.
Sorry, but that is not (even) an example of a licence conflict, let alone
of the scenario I was asking about, but rather is an example of one
author not bothering to be clear about his licensing at all -- which is
a separate and potentially fairly severe LDP problem. It's a reason to
hurry up and make the wiki's submission mechanism guide people properly,
to not accept documents without clear licensing, and to make sure we
have useful identification of contributors (sufficient to re-find and
contact them) and not just handles. In other words, avoiding falling
into typical "wiki disease" (word soup without clear licensing and with
nothing but pseudonymous handles to identify authors) by default.
And, I should point out, I was very clear in what my phrase "needing to
do that" referred to: I was saying that it has _always_ been the case
that either the borrowing was "small enough to be fair use, or
are functional contents rather than expressive, or are specifically
authorised for your purposes by a friendly author -- or there are
other compelling advantages to just writing something new for the
purpose."
What you cite is, in fact, a quite typical, everyday example of
"specifically authorised for your purposes by a friendly author" --
combined with that author dealing with having failed to be clear about
licensing in the first place.
> In fact, the main problem I fear is somebody going to Slashdot and
> claiming the LDP have stolen his doc.
LDP has always been exposed to that risk, always will be, and always
would be, no matter what it does and doesn't do. Thus, the real
question is: How does it make that charge non-credible? It does so by
having clear, documented, actually applied policies about identification
of contributors and securing licensing permission from them.
(As mentioned previously, LDP has always had in its manifesto, for
example, a policy of requiring free licensing, but has accumulated a
certain number of problem docs under proprietary licensing because
it didn't _enforce_ that policy.)
> So better not modify a document with dubtfull licence than risk some
> clash (no document should be so important as to risk our reputation).
Oh, I agree. I'm just trying to help LDP clarify its policy about
insisting that wiki-mediated submissions have explicit, documented
licences that are actually _granted_ by their authors (as opposed to
just being indicated on a generic wiki page elsewhere such that LDP
has little ability to show assent) and take measures to ensure that we
also collect and maintain meaningful contact information for HOWTO
maintainers. So far, we're not doing that.
