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Subject: Development of Creative Commons licenses

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  • From: "B. Jean" <veille.jus AT>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT>
  • Subject: Re: [cc-licenses] can someone check this wrapper for me?
  • Date: Thu, 26 Jul 2007 14:44:59 +0200

Terry Hancock a écrit :
drew Roberts wrote:
On Monday 23 July 2007 10:32 am, B. Jean wrote:
You can't put the work on a web site? People do that all the time with a
web link to the cvs or other version control system. Or am I
misunderstanding you big time?
What you can't do, is to display the code on the website.
But this is precisely what I am saying people do all the time...

Interesting that they don't have the right to do so. Is sourceforge guilty of massive contributory damages. (Or whatever the term is...)

IANAL, but...

Two thoughts:

1) Quoting a work under *any* license for academic or review purposes is
legal under fair use. Putting code snippets on a site in order to
explain functionality or demonstrate properties of the code surely falls
under this exemption to begin with.

2) Although putting something on a website can be regarded as "public
performance" it can also simply be viewed as "distributing copies".
Since the GPL defines an allowed process for doing the latter, such
practices (even beyond the limits of fair use) should be possible so
long as the license text and a link to the source are provided (but it
*IS* the source you are providing). Note that a snippet of GPL'd work is
also a separable GPL work*, so there is no "copy in full" requirement here.

* AFAICT, two separate theories make this true: 1) a copyright license
allows partial reproduction as well as complete, and 2) a partial copy
can be regarded as a derivative work (the original contribution being
the removal of extraneous material). There's no requirement in the GPL
that the software distributed work, therefore the fact that the snippet
is not compilable isn't an issue.

Of course, the line between "distributing copies" and "performing
publically" may well be drawn differently in different jurisdictions.

However, in most discussions of GPL code, "public performance" is taken
to mean *running* the program on a website, if it means anything at all.
This argument has been used to suggest that Google is violating the
license by "publically performing" software that is under a copyleft
license, without sharing the source code. OTOH, they're still doing it,
so that must not be a very strong argument. (?)

So I find the idea of regarding the publishing of the source code on a
website to be "public performance" a little strange.

IAALBIANYL (as some claims)

(of course, quoting under fair use, or special exceptions in Authors' Rights law, is perfectly admitted).

About the use by network, as google does, the GPL v2's FAQ and the GPL v3 explicitly speak about private area (It's why some persons speaks about " SHING GPL" (« /Sun HP IBM Nokia Google/ »)). In fact, this solution is consistent because the software's code (and its attached copyright) is not distributed : thereby, we don't have any right on the result.

Next, the GNU GPL v2 state : " Activities other than copying, distribution and modification are not covered by this License [...] ". Theses words ('Copying', 'distribution', 'modification') are "terms of law", ie. they have a specific (copyright) meaning which can't be interpreted - copyright law isn't my specialty, but this thinking is share with US's lawyers (like Rosen). You have two type of communication : indirect (if you reproduce, and you distribute the copy), and direct (you make the work publicly clearly visible).
I'm informed that US law are more flexible, but the GPL seems to be closed by itself to any flexibility. Furthermore, in France, or any other Authors' right country, you have to detail each rights you want to license (the license can't be implicit).

These problems are minor for software (because they don't really need to be subject to a " public performance"), but are essential for other type of works.
It's not a problem, because the FSF always claim that its license was for software (recommending the Free Art License for other works). In my mind, criticizing licenses is a good way to improve these ones ; so don't see my commentary as some FUD or things like that (moreover, the GPL v3 seems to correct this loophole).

Yes, Laws are strange ^^,
Cheers !
Benjamin Jean

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