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This is a cautionary tale for preservationists. My current preservation project is still not open because we are very slowly reviewing the code to make sure we

This is a cautionary tale for preservationists. My current preservation project is still not open because we are very slowly reviewing the code to make sure we don't accidentally include any IP when we open the source code. The real things that get you are similar to what happened here: codecs, graphics libraries, and a really big one to look out for is fonts. It'd be great if there was a scanner that could detect this stuff, but unfortunately, the scanning tools out there tend to go the other way like Black Duck: they detect open source code, not closed source.

HPsquared 2y ago
I suppose it could be done, like those plagiarism databases used for academic work. Security would need to be tighter though. It's a hard thing if the source code needs to be protected I suppose.
londons_explore 2y ago
The thing is, the vast majority of graphics libraries from 1992 the IP owner no longer cares about, and the code usually has nearly zero commercial value. I wish more were brave enough to just publish it with an open license, and then if the owner complains you take it down and rewrite. Any damages for distributing 30 year old source code are hopefully in the single-digit-dollars range anyway.
- Loudergood 2y ago
  The problem is you'll get crushed by legal fees in the meantime.
  - londons_explore 2y ago
    but if courts gave out damages of $10 for this sort of offence (taking into account the very low commercial value of the IP stolen), then very few people would even bother pursuing it in court.
    - VonGuard 2y ago
      Courts do not do that. The people suing would offer up a big old list of damages into the millions and then negotiate down from there to something like 6 figures AND the loser covering the court costs. The American legal system is completely broken, and amounts to two people piling up money, then the one with the bigger stack wins both stacks of money. This is completely untenable for a non-profit to even think about, let alone to incur the risk.
      - burningChrome 2y ago
        >> The people suing would offer up a big old list of damages into the millions and then negotiate down from there You're assuming an awful lot with this. - No defendant is going to negotiate a settlement out of court. They would force you to hire an attorney and force this to a trial because of how absurd it is. Then you would be left with other major issues: - One that any IP law firm would take a case like this on to begin with. - The little upside for any firm litigating a case where the software is 30+ years old, effectively abandoned and has little if any resell value. - Then even if some firm did want to take a swing at it, getting this in front of a judge who would even consider the case would be a huge hurdle as well. We're not even considering having to deal with a jury trial either which would also be even harder to win. - Even if the defendant refused to negotiate pre-trial, and you somehow managed to finagle yourself into a civil bench or jury trial, trying to convince anybody that the plaintiff has somehow sustained financial damages on 30+ year old software that is no longer being used and has no resale value is almost impossible. The US courts are not perfect, but these kinds of cases rarely see the inside of a court room and for good reason.
        VonGuard 2y ago
        OK, so my non-profit with a budget of about $200,000 a year is now expected to lawyer up and take on this risk, where some random company can just sidle up to us, sue us for X, and automatically win because we cannot possibly afford a lawyer to even respond to their litigation? I love how utterly diconnected from reality HN comments are. Y'all seem to think that just because you can rationalize something on paper that we should all just go out and do the thing because the laws are "Stupid." If the world ran like HN thought it did, we'd have no copyright laws, no patents, and infinite free legal advice and services. Yeah, yer right, maybe we could get a sympathetic judge or get the case tossed. After we spend $100,000 on lawyers to get there. Oh, the prosecution would have to pay our legal fees you say? Great, now I'm out $100,000 waiting on the appeal, and it could take years for them to pay up. That's like giving them a $100,000 loan with 0 interest and no defined closing date. And what's even the upside? I ruined my non-profit so I could spuriously open source some random crap I don't even want to preserve. I have the binaries already, I don't need to recompile. But hey, no one is using this stuff right? Fuck the law! The world does not work this way. If a lawyer shows up and wants to kill a small non-profit, they can do it in a day, very easily. They don't even need the courts, they just have to sue you and then bomb you with 50,000 pages of evidence. This is a REAL tactic. How do you counter that without paying a lawyer to look at all 50,000 pages? The key is to not give them a reason to do so. You know, by not breaking the fucking law.
- VonGuard 2y ago
  Completely incorrect. This work is being done under a non-profit, and whether or not the original owners care is irrelevant. Doing this would immediately open the non-profit to litigation and endanger the entire project. Just because we don't think anyone cares doesn't mean we won't get sued. This project is preserving the source code around a distributed chat system from the year 2000, the E programming language, and the first real usage of JSON. Outside of those aspects, it's not about preserving fonts and proprietary code. You are literally suggesting that we take proprietary, copyrighted code and release it under an open source license with no standing, rights, or ownership. It's insane to even suggest this. If you put the source code for Windows 95 online, you'd be sued into a pile of ashes by MS within 10 minutes. When we want to open source proprietary code, we work with the rights holders. This code was all given to us under such an agreement, and the agreement ONLY covers the code owned by the people who built this thing. The deal was contingent on us not opening any of the code the original owners didn't own, as that would ALSO incur risk for them.
  - smitelli 2y ago
    > If you put the source code for Windows 95 online, you'd be sued into a pile of ashes by MS within 10 minutes. The Windows NT 4 source code exists in multiple public repos on GitHub, and the one from the first Google result has been there for at least four years.
    - userbinator 2y ago
      ...and the ones for later versions are easily found on GitHub too --- GitHub, which is now owned by Microsoft. On the one hand, great, but on the other, that's how much (little) they care about Windows as a source of revenue.
      - account42 2y ago
        Ancient Windows NT code being available hardly threatens Microsoft's revenue from Windows sales.
  - pjc50 2y ago
sph 2y ago
Unpopular opinion: preservationism shouldn't care about licensing and legal nonsense. Because what is the point if something is distributed in a restrictive license, can't be preserved and then gets lost to time? Also, licensing is to avoid distribution, modification or outright copying by competitors; preservation is completely orthogonal to those concerns. It is to avoid losing a piece of craft to the sands of time. There is no reason laws should have power over anything in perpetuity. As seen in other spaces, pirates ignoring the "law" will provide the greatest service to humanity.
- colechristensen 2y ago
  >preservationism shouldn't care about licensing and legal nonsense. If it is reasonable that someone needs to preserve something because it has been abandoned, then the thing should automatically be in the public domain. If you are not actively using IP for a reasonable amount of time, any patents, trademarks, copyrights, etc should be permanently expired. This fixes problems with patent trolls too: you effectively would not be able to own a patent unless you were using it in your business.
  - VonGuard 2y ago
    Great idea except it won't make anyone money. Therefore it will never happen. Copyright law in America is not based on good ideas, reasonability, or even preservation. They are based on profit. Your idea is great, but we do not live in a world where good ideas matter at all. Only money matters here, and this idea will not make anyone money.
    - jart 2y ago
      It's not a great idea, because law and policy are designed to privilege makers rather than takers. It's a subversive degenerate kind of morality to argue that things belong to the people who desire to consume them.
      - FactKnower69 2y ago
Arelius 2y ago
I have the same problem.. I have been trying to preserve a game engine which has had an important following. But there has just been so many hands in the code, there is a lot of trepidation of the risk it could open the companies up too. Not sure how to progress from here.
- VonGuard 2y ago
  Email me at alex@themade.org and we can chat about options and methods. I've done this a bunch and we can usually figure out a way to meet the needs and keep risk at bay, but we will need to talk to the original rights holders, even if the thing was sold off 5 times to new companies. Usually, when I cold call the head of legal about this type of thing, they have absolutely no idea what IP I am talking about, even when their company owns it 100%, and this usually helps a lot to get them to open up. "We own what? Oh, and a museum wants to work with us? Cool!"

HPsquared 2y ago

I suppose it could be done, like those plagiarism databases used for academic work. Security would need to be tighter though. It's a hard thing if the source code needs to be protected I suppose.

londons_explore 2y ago

The thing is, the vast majority of graphics libraries from 1992 the IP owner no longer cares about, and the code usually has nearly zero commercial value. I wish more were brave enough to just publish it with an open license, and then if the owner complains you take it down and rewrite. Any damages for distributing 30 year old source code are hopefully in the single-digit-dollars range anyway.

Loudergood 2y ago
The problem is you'll get crushed by legal fees in the meantime.
- londons_explore 2y ago
  but if courts gave out damages of $10 for this sort of offence (taking into account the very low commercial value of the IP stolen), then very few people would even bother pursuing it in court.
  - VonGuard 2y ago
    Courts do not do that. The people suing would offer up a big old list of damages into the millions and then negotiate down from there to something like 6 figures AND the loser covering the court costs. The American legal system is completely broken, and amounts to two people piling up money, then the one with the bigger stack wins both stacks of money. This is completely untenable for a non-profit to even think about, let alone to incur the risk.
    - burningChrome 2y ago
      >> The people suing would offer up a big old list of damages into the millions and then negotiate down from there You're assuming an awful lot with this. - No defendant is going to negotiate a settlement out of court. They would force you to hire an attorney and force this to a trial because of how absurd it is. Then you would be left with other major issues: - One that any IP law firm would take a case like this on to begin with. - The little upside for any firm litigating a case where the software is 30+ years old, effectively abandoned and has little if any resell value. - Then even if some firm did want to take a swing at it, getting this in front of a judge who would even consider the case would be a huge hurdle as well. We're not even considering having to deal with a jury trial either which would also be even harder to win. - Even if the defendant refused to negotiate pre-trial, and you somehow managed to finagle yourself into a civil bench or jury trial, trying to convince anybody that the plaintiff has somehow sustained financial damages on 30+ year old software that is no longer being used and has no resale value is almost impossible. The US courts are not perfect, but these kinds of cases rarely see the inside of a court room and for good reason.
      - VonGuard 2y ago
        OK, so my non-profit with a budget of about $200,000 a year is now expected to lawyer up and take on this risk, where some random company can just sidle up to us, sue us for X, and automatically win because we cannot possibly afford a lawyer to even respond to their litigation? I love how utterly diconnected from reality HN comments are. Y'all seem to think that just because you can rationalize something on paper that we should all just go out and do the thing because the laws are "Stupid." If the world ran like HN thought it did, we'd have no copyright laws, no patents, and infinite free legal advice and services. Yeah, yer right, maybe we could get a sympathetic judge or get the case tossed. After we spend $100,000 on lawyers to get there. Oh, the prosecution would have to pay our legal fees you say? Great, now I'm out $100,000 waiting on the appeal, and it could take years for them to pay up. That's like giving them a $100,000 loan with 0 interest and no defined closing date. And what's even the upside? I ruined my non-profit so I could spuriously open source some random crap I don't even want to preserve. I have the binaries already, I don't need to recompile. But hey, no one is using this stuff right? Fuck the law! The world does not work this way. If a lawyer shows up and wants to kill a small non-profit, they can do it in a day, very easily. They don't even need the courts, they just have to sue you and then bomb you with 50,000 pages of evidence. This is a REAL tactic. How do you counter that without paying a lawyer to look at all 50,000 pages? The key is to not give them a reason to do so. You know, by not breaking the fucking law.
VonGuard 2y ago
Completely incorrect. This work is being done under a non-profit, and whether or not the original owners care is irrelevant. Doing this would immediately open the non-profit to litigation and endanger the entire project. Just because we don't think anyone cares doesn't mean we won't get sued. This project is preserving the source code around a distributed chat system from the year 2000, the E programming language, and the first real usage of JSON. Outside of those aspects, it's not about preserving fonts and proprietary code. You are literally suggesting that we take proprietary, copyrighted code and release it under an open source license with no standing, rights, or ownership. It's insane to even suggest this. If you put the source code for Windows 95 online, you'd be sued into a pile of ashes by MS within 10 minutes. When we want to open source proprietary code, we work with the rights holders. This code was all given to us under such an agreement, and the agreement ONLY covers the code owned by the people who built this thing. The deal was contingent on us not opening any of the code the original owners didn't own, as that would ALSO incur risk for them.
- smitelli 2y ago
  > If you put the source code for Windows 95 online, you'd be sued into a pile of ashes by MS within 10 minutes. The Windows NT 4 source code exists in multiple public repos on GitHub, and the one from the first Google result has been there for at least four years.
  - userbinator 2y ago
    ...and the ones for later versions are easily found on GitHub too --- GitHub, which is now owned by Microsoft. On the one hand, great, but on the other, that's how much (little) they care about Windows as a source of revenue.
    - account42 2y ago
      Ancient Windows NT code being available hardly threatens Microsoft's revenue from Windows sales.
- pjc50 2y ago

sph 2y ago

Unpopular opinion: preservationism shouldn't care about licensing and legal nonsense. Because what is the point if something is distributed in a restrictive license, can't be preserved and then gets lost to time? Also, licensing is to avoid distribution, modification or outright copying by competitors; preservation is completely orthogonal to those concerns. It is to avoid losing a piece of craft to the sands of time. There is no reason laws should have power over anything in perpetuity. As seen in other spaces, pirates ignoring the "law" will provide the greatest service to humanity.

colechristensen 2y ago
>preservationism shouldn't care about licensing and legal nonsense. If it is reasonable that someone needs to preserve something because it has been abandoned, then the thing should automatically be in the public domain. If you are not actively using IP for a reasonable amount of time, any patents, trademarks, copyrights, etc should be permanently expired. This fixes problems with patent trolls too: you effectively would not be able to own a patent unless you were using it in your business.
- VonGuard 2y ago
  Great idea except it won't make anyone money. Therefore it will never happen. Copyright law in America is not based on good ideas, reasonability, or even preservation. They are based on profit. Your idea is great, but we do not live in a world where good ideas matter at all. Only money matters here, and this idea will not make anyone money.
  - jart 2y ago
    It's not a great idea, because law and policy are designed to privilege makers rather than takers. It's a subversive degenerate kind of morality to argue that things belong to the people who desire to consume them.
    - FactKnower69 2y ago

Arelius 2y ago

I have the same problem.. I have been trying to preserve a game engine which has had an important following. But there has just been so many hands in the code, there is a lot of trepidation of the risk it could open the companies up too. Not sure how to progress from here.

VonGuard 2y ago
Email me at alex@themade.org and we can chat about options and methods. I've done this a bunch and we can usually figure out a way to meet the needs and keep risk at bay, but we will need to talk to the original rights holders, even if the thing was sold off 5 times to new companies. Usually, when I cold call the head of legal about this type of thing, they have absolutely no idea what IP I am talking about, even when their company owns it 100%, and this usually helps a lot to get them to open up. "We own what? Oh, and a museum wants to work with us? Cool!"