Re: Open source licenses upheld

[rjack]

Hyman Rosen wrote:
> rjack wrote:
> > This ruling has no precedental value whatsoever.
> >
> > Facts are stubborn things
>
> You will come to regret your choice of signature.

Facts *are* stubborn things. It is a fact that the United States Court of 
Appeals for the Federal Circuit has ruled:

"Although there is language in some cases that can be read to suggest that 
copyright protection extends to all conduct that would violate the user’s 
license, the decisions in those cases are not that broad. . . In light of their 
facts, those cases thus stand for the entirely unremarkable principle that 
“uses” that violate a license agreement constitute copyright infringement only 
when those uses would infringe in the absence of any license agreement at all.; 
Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 
F.3d 1307 (Fed. Cir. 2005).

Now why would I "come to regret" this fact?

It is also a fact that the *distribution* or display of an independently 
modified derivative work is a matter of *contractual* agreement between 
independent holders of exclusive rights in that work -- not a "condition" to a 
license. The forced distribution and revealing (control) of the modifying code 
in a derivative work is the only meaningful argument concerning open source 
licensing.

Attribution rights and such are simply distractions. For example *any* moron who 
takes another's freely offered copyrighted work and removes the copyright notice 
*should be* prosecuted under 17 USC 506(d).

*Any* derivative work "distribution condition" in a copyright license CANNOT be 
a condition precedent to a copyright license -- unless you are able to travel 
backwards in time and can DISTRIBUTE a derivative work BEFORE you ever COPY and 
MODIFY it.

"A condition is an event, not certain to occur, which must occur, unless its 
non-occurrence is excused, BEFORE performance under a contract becomes due." 
Restatement (Second) of Contracts  § 224 (1981). "Conditions precedent are 
disfavored and will not be read into a contract unless required by plain, 
unambiguous language." Effects Associates,  908 F.2d at 559 n. 7.

Can you explain how you create a derivative work to be distributed BEFORE you 
ever get permission to copy and modify it?

In summary, you have an exclusive right to control distribution of *your 
contribution* to a derivative work but not to control distribution of another's
contribution -- distribution and display of a derivative work "as a whole" is a 
matter of pure contractual agreement between the contributing authors -- not a 
license "condition" or scope restriction of a single author.

Sincerely,
Rjack

"Facts are stubborn things; and whatever may be our wishes, our
inclinations, or the dictates of our passion, they cannot alter
the state of facts and evidence." -- John Adams, 'Argument in
Defense of the Soldiers in the Boston Massacre Trials,' December
1770