Subject: Re: Moral Rights
From: "Robert Samuel White" <webmaster@enetwizard.net>
Date: Thu, 3 Oct 2002 19:22:45 -0400

Larry,

Thank you for your very thoughtful contribution to this subject matter.
You have most certainly and more poetically expressed the reason for my
desire to create a new license.

Since you obviously want to know my opinion of the Academic Free
License, I will give it to you.  But first, let me just explain what it
is I am trying to accomplish, specifically what type of artistic control
I am seeking:

- I wish to claim authorship of my work.

- I don't want my name used to endorse a product I did not create.

- I want the comments that I place in a file (at the top and bottom) to
remain there, even if someone modifies the file.

- If someone modifies the file, I want them to say such, and explain how
and why they modified it.  And I want these comments placed directly
underneath of the comments section I create at the top of the file.

- I don't want some one else using the name of my product when their
product is derived from my own; that invites too much confusion.

Furthermore, and though you might think me petty on these points:

- I don't want someone else copyrighting the license that I choose to
use.  I'd rather use a public domain license that is a template and can
be freely used by anyone without reference to the author of the original
license.  The license I propose satisfies this requirement for not just
me but every one.

- I want my license to refer directly to the product in question.  The
license I propose allows me to do just that.  I could have a hundred
different products all based on the same license template, which also
means they would all automatically be approved by OSI, and that's what I
would like. 

That is all I am asking in my license, nothing more, nothing less.  That
is the extent of the artistic control I am seeking.  There is no license
available that satisfies all of these requirements, and that is why I
have created the Simplified Artistic License.

As to what I think about the Academic Free License when compared to the
one I have created:

- I like the use of the term "Original Work" and parts of the "Grant of
License" section.  Some of that section is confusing, especially
everything said from non-sublicensable on down.  I'm not likely to
accept a license that I myself do not fully understand.

- I like the section called "License to Source Code."  I think it clears
up and makes room for any type of language or file format that one might
be distributing as part of their source code, that's really nice.  In
fact, there is no wording within that section that bothers me at all.

- The section entitled "Mutual Termination for Patent Action" is
confusing.  It seems to me that if something is patented then there are
laws regarding the use of patents and that information does not to be
part of a license.  Am I right on this?

- Other than what I've mentioned, it seems okay to me, except for the
fact it does not meet all of the conditions I set forth at the start of
this email.

I hope you find this information useful.

-Samuel



-----Original Message-----
From: Lawrence E. Rosen [mailto:lrosen@rosenlaw.com] 
Sent: Thursday, October 03, 2002 6:33 PM
To: 'Robert Samuel White'; 'Russell Nelson'
Cc: license-discuss@opensource.org; 'Glenn Randers-Pehrson'; 'Bruce
Perens'
Subject: RE: Moral Rights (was Simplified Artistic License (A Proposed
Compromise))

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 |
> Crynwr sells support for free software  | PGPok | businesses 
> persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | 
> governments coerce
> Potsdam, NY 13676-3213  | +1 315 268 9201 FAX   |
> 
> 
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> 



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