Understanding Open Source and Free Software Licensing by Andrew M. St. Laurent

Author:Andrew M. St. Laurent [Laurent, Andrew M. St.]
Language: eng
Format: epub, pdf
Tags: Industries, Copyright - Computer Programs - United States, Law and Legislation, Free Computer Software, Copyright, Database Management, Electronic Books, Operating Systems, Computers, General, Educational Software, Computer Software Industry, Business & Economics, Computer Programs, Intelligence (AI) & Semantics, Computer Industry, Computer Software - Development, Open Source Software, Information Technology, Computer Software
ISBN: 9780596005818
Publisher: O'Reilly Media
Published: 2004-01-02T08:00:00+00:00

The second "sub-option" presents substantially more difficulties. "[O]therwise making [the modifications] Freely Available" would seem to require complying with the definition of "Freely Available" given earlier, requiring that the item itself be given without charge and that the persons receiving it have the right both to use the modifications and to redistribute them on terms no more restrictive than those under which they themselves received the work. Complying with these requirements would not be particularly difficult: a contributor could license the modifications under, for example, the BSD or MIT Licenses described earlier, and put them in a publicly available place for download without charge, other than for the costs of transmission or copying. In such an event, the original work, the Standard Version, would still be licensed under the Artistic License, even though the modifications would be under another license that fell within the definition of "Freely Available."

While this course of action would be in compliance with the requirement of this "sub-option," it is not clear that this is in fact what is required by the terms of the license. This is because the illustrative examples given after the expression of this requirement actually undermine it. "[P]osting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net" by themselves will not permit any person to copy, distribute, or modify those modifications, except as permitted by the doctrine of fair use, as described in Chapter 1. Simply placing a work in a public place does not waive any protections of copyright that might otherwise be attached. As already noted, a work need not even carry a copyright notice to be protected by copyright. Without an explicit disclaimer of copyright protection (such as a public domain dedication) or a licensing agreement, prudent users will assume that such work is still protected by copyright and substantially unavailable for use. Accordingly, this part of the license could create a potentially awkward situation where a modifier, who does in fact want these modifications to be publicly available as the Artistic License seems to require, publicly posts those modifications but does not provide a license that would allow for their free use.[5]

[5] The fact that this happens all the time in open source development does not eliminate the possibility of a misunderstanding that could lead to a legal dispute. A contributor may actually not know that he is "licensing" work that he submits to an open source or free software project, or he may think better of it after having done so, and take some action to claw his submission back. This situation seems to rarely, if ever, arise. Nonetheless, those considering taking leadership positions in such projects should take reasonable efforts to make sure that contributors are aware of the licensing terms applicable to the project.

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