Changeset - 135533708853
[Not reviewed]
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Bradley Kuhn (bkuhn) - 10 years ago 2014-03-15 17:40:54
bkuhn@ebb.org
Various improvements to the section on copyright,
in particular including links to the USC.
1 file changed with 51 insertions and 39 deletions:
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gpl-lgpl.tex
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@@ -304,48 +304,60 @@ to serve that sub-community.
 

	
 
\section{How Does Software Become Free?}
 

	
 
The last section set forth the freedoms and rights respected by Free
 
Software. It presupposed, however, that such software exists. This
 
section discusses how Free Software comes into existence. But first, it
 
addresses how software can be non-Free in the first place.
 

	
 
Software can be made proprietary only because it is governed by copyright
 
law.\footnote{This statement is a bit of an oversimplification. Patents
 
  and trade secrets can cover software and make it effectively non-Free,
 
  one can contract away their rights and freedoms regarding software, or
 
  source code can be practically obscured in binary-only distribution
 
  without reliance on any legal system. However, the primary control
 
  mechanism for software is copyright.} Copyright law, with respect to
 
software, governs copying, modifying, and redistributing that
 
software.\footnote{Copyright law in general also governs ``public
 
  performance'' of copyrighted works. There is no generally agreed
 
  definition for public performance of software and both GPLv2 and GPLv3
 
  do not govern public performance.} By law, the copyright holder (a.k.a.
 
the author) of the work controls how others may copy, modify and/or
 
distribute the work. For proprietary software, these controls are used to
 
prohibit these activities. In addition, proprietary software distributors
 
further impede modification in a practical sense by distributing only
 
binary code and keeping the source code of the software secret.
 

	
 
Copyright law is a construction. In the USA, the Constitution permits,
 
but does not require, the creation of copyright law as federal
 
legislation. Software, since it is an idea fixed in a tangible medium, is
 
thus covered by the statues, and is copyrighted by default.
 

	
 
However, this legal construction is not necessarily natural. Software, in
 
its natural state without copyright, is Free Software. In an imaginary
 
world with no copyright, the rules would be different. In this
 
world, when you received a copy of a program's source code, there would be
 
no default legal system to restrict you from sharing it with others,
 
making modifications, or redistributing those modified
 
The previous section set forth key freedoms and rights that are referred to
 
as ``software freedom''.  This section discusses the licensing mechanisms
 
used to enable software freedom.  These licensing mechanism were ultimately
 
created as a community-oriented ``answer'' to the existing proprietary
 
software licensing mechanisms.  Thus, first, consider carefully why
 
proprietary software exists in the first place.
 

	
 
Proprietary software exists at all only because it is governed by copyright
 
law.\footnote{This statement is admittedly an oversimplification. Patents and
 
  trade secrets can cover software and make it effectively non-Free, and one
 
  can contract away their rights and freedoms regarding software, or source
 
  code can be practically obscured in binary-only distribution without
 
  reliance on any legal system.  However, the primary control mechanism for
 
  software is copyright, and therefore this section focuses on how copyright
 
  restrictions make software proprietary.} Copyright law, with respect to
 
software, typically governs copying, modifying, and redistributing that
 
software (For details of this in the USA, see
 
\href{http://www.copyright.gov/title17/92chap1.html#106}{\S 106} and
 
\href{http://www.copyright.gov/title17/92chap1.html#117}{\S 117} found in in
 
\href{http://www.law.cornell.edu/uscode/text/17}{Title 17} of the
 
\textit{United States Code}).\footnote{Copyright law in general also governs
 
  ``public performance'' of copyrighted works. There is no generally agreed
 
  definition for public performance of software and both GPLv2 and GPLv3 do
 
  not govern public performance.} By law (in the USA and in most other
 
jurisdictions), the copyright holder (most typically, the author) of the work controls
 
how others may copy, modify and/or distribute the work. For proprietary
 
software, these controls are used to prohibit these activities. In addition,
 
proprietary software distributors further impede modification in a practical
 
sense by distributing only binary code and keeping the source code of the
 
software secret.
 

	
 
Copyright is not a natural state, it is a legal construction. In the USA, the
 
Constitution permits, but does not require, the creation of copyright law as
 
federal legislation.  Software, since it is ``an original works of authorship
 
fixed in any tangible medium of expression ...  from which they can be
 
perceived, reproduced, or otherwise communicated, either directly or with the
 
aid of a machine or device'' (as stated in
 
\href{http://www.law.cornell.edu/uscode/text/17/102}{USC 17 \S 102}), is thus
 
covered by the statues, and is copyrighted by default.
 

	
 
However, software, in its natural state without copyright, is Free
 
Software. In an imaginary world with no copyright, the rules would be
 
different. In this world, when you received a copy of a program's source
 
code, there would be no default legal system to restrict you from sharing it
 
with others, making modifications, or redistributing those modified
 
versions.\footnote{There could still exist legal systems, like our modern
 
  patent system, which could restrict the software in other ways.}
 
  patent system, which could restrict the software in other ways, as well as
 
  technical measures, such as binary-only distribution, that impeded such activity.}
 

	
 
Software in the real world is copyrighted by default and is
 
automatically covered by that legal system. However, it is possible
 
to move software out of the domain of the copyright system. A
 
copyright holder is always permitted to \defn{disclaim} their
 
copyright. If copyright is disclaimed, the software is not governed
 
automatically covered by that legal system.  However, it is possible
 
to move software out of the domain of the copyright system.  A
 
copyright holder can often \defn{disclaim} their
 
copyright.  If copyright is disclaimed, the software is not governed
 
by copyright law. Software not governed by copyright is in the
 
``public domain.''
 

	
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