Re-using copyrighted code

[Steven D'Aprano]

On Sun, 09 Jun 2013 13:32:00 -0700, Mark Janssen wrote:

> On Sun, Jun 9, 2013 at 12:50 PM, Michael Torrie <torriem at gmail.com>
> wrote:
>> On 06/09/2013 11:18 AM, Mark Janssen wrote:
>>> You actually do not.  Attaching a legal document is purely a secondary
>>> protection from those who would take away right already granted by US
>>> copyright.
>>
>> You are correct, except that the OP has already stated he wishes to
>> have his code distributed. Without granting a license, the code cannot
>> be distributed beyond the people he personally gives the code too. 
>> PyPi cannot legally allow others to download it without a license.
> 
> That's not entirely correct.  If he *publishes* his code (I'm using this
> term "publish" technically to mean "put forth in a way where anyone of
> the general public can or is encouraged to view"), then he is *tacitly*
> giving up protections that secrecy (or *not* disclosing it) would
> *automatically* grant.  The only preserved right is authorship after
> that.   So it can be re-distributed freely, if authorship is preserved. 

Mark, ever watched TV? Or gone to the movies? Or walked into a bookshop? 
Listened to the radio? All these things publish copyrighted work. It is 
utter nonsense that merely publishing something in public gives up the 
monopoly privileges granted by copyright.

Armchair lawyering is one thing, but please at least *try* to apply 
thought to these things before making ridiculous claims. If merely 
publishing something voided copyright monopoly, then copyright would 
hardly encourage people to publish things they wished to monopolise, 
would it?


> The only issue after that is "fair use" and that includes running the
> program (not merely copying the source).

Running the program is irrelevant to copyright. Copyright does not grant 
the creator a monopoly of *running* the program.


> Re-selling for money violates fair-use, 

The principle of re-sale have nothing to do with fair use.


> as does redistribution without
> preserving credit assignment (unless they've naively waived those rights
> away).

One cannot *naively* waive away copyright monopoly privileges. It 
requires an explicit and overt act to give away the rights granted. One 
might deliberately publish your work under a permissive licence without 
realising that it is permissive, but that's not an act of naivety, it's 
an act of stupidity for not reading the licence and understanding it 
before publishing.

"Well Your Honour, I had heard that all the cool kids were using the GPL, 
so I copied the GPL into my source code. I didn't realise it had legal 
meaning."


> I will have to take a look at  PyPi.  But if you are
> *publishing*, there's no court which can protect your IP afterwards from
> redistribution, unless you explicitly *restrict* it.

When you listen to a song on the radio, do you know how they have a 
copyright announcer read out the copyright and explicitly list all the 
rights they keep after each and every song and advertisment?

No, me neither. It doesn't happen. Because it's nonsense that you give up 
copyright by publishing.


> In which case, if
> you restrict terms of re-use, you're putting the court in jeopardy
> because you making two actions opposed to one another.  The only thing
> the court can easily uphold is your authorship and non-exploitation from
> a violation of fair-use (note again the key word is "use", nor merely
> copying the code).  But then if you waive *that* right away, you put the
> court in jeopardy again.

Put the court in jeopardy huh. Oh my, that's a level of embarrassment I 
haven't seen for a long time.

Unless you are the government of the land, nothing you publish has 
jurisdiction over the court or can put it in jeopardy. You can publish:

"I hereby abolish the court, and sentence everyone involved with it to 
being soundly spanked on the bottom until it turns red."

but it has no legal or practical standing.


[...]
> Well this is where one must make a distinction with fair-use -- if I
> re-publish my modifications then the code is still subject to the terms
> by the original author.  If I make a copy for myself and run the problem
> for personal, non-commercial use, then I am in the domain of fair use
> and have no other obligations.

That's utter nonsense. Fair use does not give you the right to make a 
copy of an entire work for your own use, non-commercial or not. Fair use 
let's you copy a handful of pages from a book, not the entire thing.



-- 
Steven