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You're defining proprietary to include source-available. That is part of what I mean by "the two-party system" of thinking, forcing options into one camp or th

You're defining proprietary to include source-available. That is part of what I mean by "the two-party system" of thinking, forcing options into one camp or the other. Practically speaking, code developed in the open, by a diverse set of contributors, under a noncommercial license permitting redistribution, is far more comparable to open source than to Windows. That distinction is very clearly worth making. Doing otherwise risks forcing developers onto open source licenses when they're suboptimal, and nursing a misconception that the benefits of available source code accrue only to available source code that is also licensed under OSI- or FSF-approved terms. Your conclusion on the enforceability of copyright use restrictions is incorrect. Look at Vernor v. Autodesk and the MAI Trio. Look the CC-NC litigation. I have written far more proprietary than open source licenses, professionally. But practicing this area of law doesn't make my arguments correct. They have to stand on their own, without ad hominem support.

jmillikin 8y ago
> You're defining proprietary to include source-available. > That is part of what I mean by "the two-party system" of > thinking, forcing options into one camp or the other. It's not a two-party system -- there are many possible options for open-source and proprietary licenses. This does not change that the distinction between "open-source" and "proprietary" is inherently binary. A license either meets the OSI definition or it doesn't -- you might argue that a license could be constructed to be right on the border, and that's true, but you'd still have to acknowledge it's on the border of something. > Practically speaking, code developed in the open, by a > diverse set of contributors, under a noncommercial > license permitting redistribution, is far more > comparable to open source than to Windows. Yes, that's true. Many proprietary licenses are closer to open-source than Windows is. > Doing otherwise risks forcing developers onto open source > licenses when they're suboptimal, and nursing a > misconception that the benefits of available source code > accrue only to available source code that is also licensed > under OSI- or FSF-approved terms. The benefits of being open-source ought to accrue only to software that is open-source. If software under a proprietary license would like to publish its source code to encourage community contribution, it's welcome to do so, but should not deceptively claim to be open-source. > Your conclusion on the enforceability of copyright use > restrictions is incorrect. Look at Vernor v. Autodesk > and the MAI Trio. Look the CC-NC litigation. None of those cases are relevant to this discussion. The MAI cases are obsolete (https://www.law.cornell.edu/uscode/text/17/117 https://www.law.cornell.edu/uscode/text/17/117), Vernor v. Autodesk covers whether possession of physical install media implies ownership of a license, and the only hits I could find on litigation related to Creative Commons non-commercial licenses seems to support my interpretation: https://creativecommons.org/2016/08/30/defending-noncommercial-uses-great-minds-v-fedex-office/ https://creativecommons.org/2016/08/30/defending-noncommerci...
- kemitchell 8y ago
  My post argues that a binary distinction between proprietary and open source is harmful. Those terms are both political and contested within the community. I am contesting them, and I'm not alone. You might like to argue that your binary distinction is best. That's fine. But you're going to have to argue. > The benefits of being open-source ought to accrue only to software that is open-source. I would say that benefits ought to accrue to software according the benefit it brings. There is a lot of value in publishing source, even without an OSI- or FSF-approved license. That value ought to be recognized, not lumped in with software without public source. As I wrote in the post: "Publishing code alone brings many of the benefits currently imputed exclusively to open source under licenses like MIT and BSD." > None of those cases are relevant to this discussion. Vernor was decided _after_ enactment of 17 USC 117, addresses it directly, and cites the MAI Trio extensively. If you don't want to read the opinion, here's the EFF writeup: https://www.eff.org/cases/vernor-v-autodesk https://www.eff.org/cases/vernor-v-autodesk They quote the holding, where the court uses the exact phrase "use restrictions". If you want to argue that public licenses can't enforce use restrictions because they aren't written directly to the 17 USC 106 rights, and that incidental, inevitable exercise of at least the exclusive reproduction right doesn't count under 17 USC 117, you have to deal with the "owner" language there, and the clear deviation from the CONTU Report. And Vernor. As for the CC-NC licenses, the parties in Great Minds didn't dispute that the use was noncommercial. IIRC, they clashed on another part of the license, namely whether the noncommercial user could have a third party exercise its license on its behalf. Here's English coverage of a German court enforcing a CC-NC license in a pretty far reaching way: https://www.techdirt.com/articles/20140326/11405526695/german-court-says-creative-commons-non-commercial-licenses-must-be-purely-personal-use.shtml https://www.techdirt.com/articles/20140326/11405526695/germa...

jmillikin 8y ago

> You're defining proprietary to include source-available. > That is part of what I mean by "the two-party system" of > thinking, forcing options into one camp or the other. It's not a two-party system -- there are many possible options for open-source and proprietary licenses. This does not change that the distinction between "open-source" and "proprietary" is inherently binary. A license either meets the OSI definition or it doesn't -- you might argue that a license could be constructed to be right on the border, and that's true, but you'd still have to acknowledge it's on the border of something. > Practically speaking, code developed in the open, by a > diverse set of contributors, under a noncommercial > license permitting redistribution, is far more > comparable to open source than to Windows. Yes, that's true. Many proprietary licenses are closer to open-source than Windows is. > Doing otherwise risks forcing developers onto open source > licenses when they're suboptimal, and nursing a > misconception that the benefits of available source code > accrue only to available source code that is also licensed > under OSI- or FSF-approved terms. The benefits of being open-source ought to accrue only to software that is open-source. If software under a proprietary license would like to publish its source code to encourage community contribution, it's welcome to do so, but should not deceptively claim to be open-source. > Your conclusion on the enforceability of copyright use > restrictions is incorrect. Look at Vernor v. Autodesk > and the MAI Trio. Look the CC-NC litigation. None of those cases are relevant to this discussion. The MAI cases are obsolete (https://www.law.cornell.edu/uscode/text/17/117 https://www.law.cornell.edu/uscode/text/17/117), Vernor v. Autodesk covers whether possession of physical install media implies ownership of a license, and the only hits I could find on litigation related to Creative Commons non-commercial licenses seems to support my interpretation: https://creativecommons.org/2016/08/30/defending-noncommercial-uses-great-minds-v-fedex-office/ https://creativecommons.org/2016/08/30/defending-noncommerci...

kemitchell 8y ago
My post argues that a binary distinction between proprietary and open source is harmful. Those terms are both political and contested within the community. I am contesting them, and I'm not alone. You might like to argue that your binary distinction is best. That's fine. But you're going to have to argue. > The benefits of being open-source ought to accrue only to software that is open-source. I would say that benefits ought to accrue to software according the benefit it brings. There is a lot of value in publishing source, even without an OSI- or FSF-approved license. That value ought to be recognized, not lumped in with software without public source. As I wrote in the post: "Publishing code alone brings many of the benefits currently imputed exclusively to open source under licenses like MIT and BSD." > None of those cases are relevant to this discussion. Vernor was decided _after_ enactment of 17 USC 117, addresses it directly, and cites the MAI Trio extensively. If you don't want to read the opinion, here's the EFF writeup: https://www.eff.org/cases/vernor-v-autodesk https://www.eff.org/cases/vernor-v-autodesk They quote the holding, where the court uses the exact phrase "use restrictions". If you want to argue that public licenses can't enforce use restrictions because they aren't written directly to the 17 USC 106 rights, and that incidental, inevitable exercise of at least the exclusive reproduction right doesn't count under 17 USC 117, you have to deal with the "owner" language there, and the clear deviation from the CONTU Report. And Vernor. As for the CC-NC licenses, the parties in Great Minds didn't dispute that the use was noncommercial. IIRC, they clashed on another part of the license, namely whether the noncommercial user could have a third party exercise its license on its behalf. Here's English coverage of a German court enforcing a CC-NC license in a pretty far reaching way: https://www.techdirt.com/articles/20140326/11405526695/german-court-says-creative-commons-non-commercial-licenses-must-be-purely-personal-use.shtml https://www.techdirt.com/articles/20140326/11405526695/germa...