From: Jay Levitt <jay+news@...>
Date: 2005-09-14T00:21:33+09:00
Subject: Re: Choosing an open source license

In article <6b82a3ba9cb48620e67cc0ec26004fbb@blurgle.ca>, 
jtregunna@blurgle.ca says...
> Well your idea here wouldn't stand up in a court of law (in the USA or 
> Canada, probably other countries depending on their "Fair Use" 
> copyright provisions). I can, for example, take a piece of your 
> software and redistribute it under the "Fair Use" copyright provision 
> under some circumstances (for example, parody); and not be hindered by 
> your copyright on that code, so how do you expect to be able to enforce 
> this? 

Jeremy, I think you're misunderstanding the basic legal foundations of 
software licenses, at least in the US.  Copyright gives the author the 
ability to control who copies it.  Without some sort of license from the 
author, or some sort of purchase, you don't have the right to copy and 
distribute the code at ALL.  Open-source licenses take advantage of 
that, and say that you DO have the right to copy the software, IF you do 
X, Y, and Z.  Otherwise, or if the license is invalid, you have no right 
to copy it.  Clever, eh?

Now, a license where X, Y and Z include "running this software on a 
server is considered distribution" may not exist.  And if it does, it 
may or may not meet the OSF's definition of "Open Source" - I don't 
know.  But such a license could certainly be drafted, as could any other 
license whose terms aren't contrary to any other laws.

Also, you'd would have a very, very difficult time redistributing 
software as a "parody", or any other Fair Use.  And Fair Use isn't a 
"provision", at least in the U.S. - it's a concept, embodied in court 
rulings.  It's not spelled out anywhere, and it's not a right; it's just 
an affirmative defense against copyright violations.  Authors in the US 
have every legal right to prevent you from making what otherwise might 
be considered "Fair Use" copies - witness the controversial protection 
on DVDs or copy-protected CDs.

I have no idea what copyright is like in Canada.  IANAL either but I've 
spent lots of time following IP laws.

-- 
Jay Levitt                | 
Wellesley, MA             | I feel calm.  I feel ready.  I can only
Faster: jay at jay dot fm | conclude that's because I don't have a
http://www.jay.fm         | full grasp of the situation. - Mark Adler