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

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...