Subject: RE: Moral Rights (was Simplified Artistic License (A Proposed Compromise))
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Thu, 3 Oct 2002 15:32:57 -0700

Robert Samuel White and Russ Nelson:

I'm sorry I haven't stepped into this conversation sooner.  I've been
lurking and handling other matters....

I am unhappy with the current status of this request.  Robert Samuel
White (RSW) is absolutely within his rights to obtain approval for his
license if it satisfies the published criteria on OSI's website.  Russ
Nelson is also absolutely correct in worrying, as do all members of the
board of directors of OSI, about the proliferation of licenses that only
serve to confuse and confound the community.

Let's concede that all of us (including Robert Samuel White) are focused
on trying to develop better open source licenses.  

The question that Russ asked RSW is important to us and we want to hear
your answer.  The board of OSI is considering adopting as an official
goal that a few licenses -- including the GPL, MPL, OSL and AFL, but not
necessarily limited to that set and perhaps only after certain changes
are made to those licenses -- become the major, recommended, free and
open source licenses.  

Therefore, we need to understand, as part of our analysis of your
license, why one of those "best practice" licenses can't serve your
needs.  What's wrong with the AFL, for example, as an alternative to
RSW's Simplified Artistic License?  Why doesn't trademark law give RSW
the artistic protection he desires?  These are not just idle questions
intended to give you one more hurdle to overcome; your answers are
vitally important so we can determine whether the AFL itself needs to be
improved.

Here's one objection about the AFL that two independent projects have
now raised: The AFL does not guaranty the kind of artistic control that
certain people want.  These projects seem to define "artistic control"
as a requirement for notices of original authorship that are to be
retained in derivative works, or as restrictions on the right to use
individual or program names in derivative works.  

More broadly, perhaps we should consider what *moral rights* really
should be for software in an open source environment.  The Berne
Convention contains provisions that allow the author of a work to
control (in some ways) how his work can be changed.  The United States
has never adopted these moral rights provisions into US copyright law
except as pertains to a work of visual art, but moral rights are a part
of the law in many other countries.  In some countries, I understand,
moral rights may not be contracted away regardless of what a license
says.  (I actually know very little about the law pertaining to moral
rights in other countries.)

By copy of this email, I'm specifically asking Robert Samuel White,
Glenn Randers-Pehrson and Bruce Perens (all of whom have raised the same
issue in different contexts), to help us understand what OSD-compatible
form of license provision should be recommended to protect an author's
rights in a work:

* to claim authorship of that work;

* to prevent the use of his or her name as the author of any work which
he or she did not create;

* to prevent the use of his or her name as the author of a work in the
event of a distortion, mutilation, or other modification of the work
which would be prejudicial to his or her honor or reputation.

Do we really want to go down such a path in open source licenses,
opening up a whole pandora's box of litigation about what constitutes
"honor or reputation" in the sofware arena?  Should we instead try to
implement a meaningful moral rights provision for US copyright law?

Inquiring minds really do want to know what you think about these
issues.

/Larry Rosen

> -----Original Message-----
> From: Robert Samuel White [mailto:webmaster@enetwizard.net] 
> Sent: Thursday, October 03, 2002 2:18 PM
> To: 'Russell Nelson'
> Cc: license-discuss@opensource.org
> Subject: RE: Simplified Artistic License (A Proposed Compromise)
> 
> 
> I've decided to just forget it.  I'm going to use my license 
> and forget about OSI approving it.  I didn't want this much 
> controversy.  I was very patient and listened to every one's 
> comments on the list, and I adjusted my license as 
> recommended, all with the misguided belief that my license 
> would be approved as long as it met the conditions of the 
> OSD.  I support OSI, the OSD, and the open source community.  
> So I guess this is the end.  Have a wonderful life and keep 
> up the good work.
> 
> 
> -----Original Message-----
> From: Russell Nelson [mailto:nelson@crynwr.com] 
> Sent: Thursday, October 03, 2002 5:01 PM
> To: Robert Samuel White
> Subject: RE: Simplified Artistic License (A Proposed Compromise)
> 
> Robert Samuel White writes:
>  > 
>  > There are some things I like about the Academic Free 
> License, then there  > are many things that I do not like...  
> Do you really want me to go into  > it?
> 
> Yes.
> 
> -- 
> -russ nelson              http://russnelson.com |
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> 
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