[h2o-discuss] why Open needs lawyers

[Eric Eldred <eldred@mediaone.net>]

Bruce Perens answers questions and provokes discussion:
http://slashdot.org/articles/99/07/30/2220240.shtml

my notes:
1.  Bruce earlier attacked me publicly on slashdot for
daring to use the term Open Source (tm) associated with
the online books movement.  His argument was that the
Open Source (tm) and Free Software projects depend on
a strong copyright with the GPL license.  Now he is
deploring the fact that copyright term is longer than
the economic life of much commercial software and
suggesting that something be done about that.  It appears
that this is contradictory.  Instead, we need to figure
out some synthesis for Openness in all these domains.
We can't depend on Bruce's 'publicity' stunts to advance
the synthesis.

It turns out that Open Source is not really trademarked
by Bruce after all.  Also, he has pedantically argued
with others such as Apple who want to be associated with
Open Source.  Looking at the Open Source Definition
done by Debian, it doesn't seem to me that it could
ever have room for anything other than software--not
genetic code, not free books on the Internet, not
online university courses, etc.  Yet clearly the rest
of us would like to leverage off the good will generated
by the free software movement and join with its goals.
How can we all come up with a more open Open Source
Definition?

2.  Again Bruce puts out the old argument that software
should not enter the public domain because then somebody
with an evil mind might copyright it and put their name
and commercial license on it, thus preventing others
from distributing it freely.  It seems to me that this
theory is not properly constructed.  Since copyright
depends on originality and on date of publication or
on being attached to a particular author's genius,
the copyright cannot be enforced as Bruce states.  For
example, under current law ALL software is copyrighted
as soon as it is an original creative expression.  Yes, a
second party could register a copyright, but going to
court the first party could surely show that the 
copyright was invalid by demonstrating the prior
publication of the work.  Bruce will not admit this.
What does the law say about this?

3.  Bruce is finally admitting that more work needs
to be done on the legal enforceability of the GPL and
associated shrinkwrap licenses.  Considering UCITA
and the guess by an IP lawyer in the slashdot discussion
that GPL-protected code could be openly reverse engineered,
and so commercially licensed derivative works could be made,
who is going to do the work on the GPL, the central feature
of the Free Software movement?  Somebody says a law
professor from Columbia, others say from MIT?

4.  One problem I see with Open Source software is that
the derivative works can be newly copyrighted by authors
who add substantive code to the original code GPL'd by
numerous other authors.  According to Bruce, this is not
a problem because the GPL gives the original authors
the copyright to the later code.  I can't see how that
could work.  And it would leave open the fact that somebody
who didn't write a part of the code could re-license the
rest of the code under a more restrictive license.  Also,
the GPL requires that the entire work be copied if any is.

5.  Much of the confusion seems to be over the proper
role of the public domain.  In an earlier message (have
I been talking to myself here?) I suggested examination
of a possible theory of legal abandonment of copyright.
I have been thinking about that as another contradiction
that might help explain the seemingly bizarre nature of
copyrighted intellectual property.  So I will have more
on that later if we can provoke some discussion here....

-- 
"Eric"    Eric Eldred      Eldritch Press
mailto:EricEldred@usa.net  http://eldred.ne.mediaone.net/
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