HOWTO: Pick an open source license (part 1) (ZDNet) [LWN.net]

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 15, 2006 16:27 UTC (Thu) by lysse (guest, #3190)
In reply to: HOWTO: Pick an open source license (part 1) (ZDNet) by dmarti
Parent article: HOWTO: Pick an open source license (part 1) (ZDNet)

Firstly, Rosen's argument makes no mention of promissory estoppel, which would be the obvious first line of challenge to someone trying to reclaim a piece of work from the public domain.

Secondly, he argues "there is no mechanism by which the renunciation of copyright is permitted". But there is also no mechanism by which such a renunciation is prohibited - whereas I suspect that his comparison (not dumping personal property on a public highway) does have such an explicit counter-decree. The silence raises a key point - is the law of the United States one in which everything not explicitly permitted is prohibited, or one in which everything not explicitly prohibited is permitted? The Constitution would suggest that it is the latter, in which case the lack of an existing prohibition on the renunciation of copyright would be strong grounds for its allowability - and, if correctly witnessed, its enforceability.

Thirdly, he is in the employ of the Open Source Institute; as such, he has, perhaps, a vested interest in discouraging the use of the public domain. However, I'd rather see a little bit of legal backup for his argument; has there been a case where a reclamation of renounced copyright has been either upheld or defeated by the courts?

(Of course, I'm not a lawyer - I'm only a law student, and then only in the UK; and none of this in any way constitutes advice, or anything more than my personal, underinformed opinion.)

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HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 15, 2006 22:35 UTC (Thu) by man_ls (guest, #15091) [Link] (2 responses)

If you study law you will know that the principle of legality (in Latin: Nulla poena sine lege, or "No penalty without law") is a basic pillar in all modern democratic penal codes. Something cannot be forbidden if there is no law saying it is; and the law must be specific about it.

That is why sometimes people get out of jail after doing some novel stuff (say, creating a zombie cyborg to murder people) because there is still no law condemning it, as bad as it may seem. And the principle affects civil law too: it is why in legal papers you often see a lot of boring enumerations, for instance in this copyright notice:

you may not copy (except to the extent required in order to use this website in accordance with the Legal Notices), store in any medium (including in any other website), distribute, transmit, re-transmit, broadcast, modify, or otherwise make available or communicate to the public any part of this website or systematically extract material from this website or any document available through it or in any other way exploit commercially all or any part of this website or any document available through it without our prior written permission.

Lawyers normally want to cover all the bases, and do so explicitly, because what is not in, is out. If tomorrow we learn to beam web pages to each other using just our brain waves, these guys want to charge you for it.

Therefore, in the United States as everywhere else, what is not explicitly prohibited is permitted.

Stupid disclaimer: MFIAL (my father is a lawyer). Free legal advice over the internet sucks.

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 16, 2006 3:57 UTC (Fri) by nlucas (subscriber, #33793) [Link] (1 responses)

At least in my country (Portugal), there is a thing called "the spirit of the law" that can be used to cover cases not explicitly in the paper.
It's up to the courts to judge if it applies or not, off course.

HOWTO: Pick an open source license (part 1) (ZDNet)

Posted Jun 17, 2006 11:18 UTC (Sat) by lysse (guest, #3190) [Link]

That applies in the UK too; the judiciary have the power to take a reasonably broad approach to the interpretation of legislation, and may depart from strict literalism if they feel it necessary to do so, which can have the effect of creating a "penalty without [explicit] law".

Moreover, the UK has evolved more or less continuously from a dictatorial monarchy; we're still all subjects of the Crown, and hence our rights are (even post-HRA) only those which have been granted to us by the Crown (ie by her government). One might argue about the extent of the UK's democracy, but it would appear that man_ls's contention (that all modern democratic societies are inherently permissive) is sadly not as true as any of us would wish it to be.