[Chicago] Capistrano alternatives

drunkenbatman lists at drunkenblog.com
Wed Jan 7 03:34:23 CET 2009

> I can bring a suit just to be an asshole.  And indeed, such assholery is
> common in some fields and in certain kinds of relationships.  But I feel
> like it is slandering open source communities to imply that it is at all
> common there.  It's not, in no small part because it is a community of
> individuals.

I'd agree about the individuals part, but would propose based on
experience that you're assigning some form of gentleman's agreement or
form of altruism whereas most individuals simply lack the capability and
means to pursue a copyright claim. EG, individual A finds that a company
or other individual is using their code in a way that violates the
license. The individual contacts them, and the company ignores them for
whatever reason. At this point (assuming they are made aware at all)
they're told by people "contact the FSF" and "contact the EFF" or "hire
a lawyer, it's a slam dunk".

The EFF has limited resources, and focuses primarily on cases that will
set precedent in a way that favors its goals. The FSF is fairly limited
unless you have signed your copyright over to them, which is one of the
reasons why they encourage people to do so. Which leaves the civil
lawyer route, and if you are of means and willing to put them towards
that, you're set -- and the company or individual will most likely back
down even if they are bringing in cash via your code, as they will most
likely be advised that their odds of winning at a trial are almost nil
and they're likely to pay much more than they would by negotiating some
form of settlement.

If you aren't of means, you're left with trying to find a lawyer willing
to take your case without an upfront fee, or waiving the fee out of the
goodness of their heart that is able to practice in the area you need
them (you can often get copyright cases moved to federal court and out
of a local area, but the one willing to help you may not be certified to
practice in say, California). Calling the local personal injury lawyer
whose ads you see won't cut it beyond a basic cease & desist where the
company/individual will weigh what they might be making vs the
likelihood of you being able to really pursue it, and while many cities
have local services where lawyers donate their time for say, helping
people out with crazy landlords, IP lawyers aren't a dime a dozen. Even
if it seems that way. They rarely have a lot of free time, and they'll
often ask "is your copyright registered?"

You don't have to specifically register your copyright in order to own
it, but it is a huge help. It makes the case basically open and shut,
while shutting down a whole bunch of other arguments that may have to be
proved (that you actually are the original author, etc) and, perhaps
equally importantly, triggers a bunch of statues in the law involving
terms like "willful infringement" which automatically shoots the
potential damages sky-high (this is where they start talking $100k+ per
infringement, etc). Registering your copyright generally involves paying
 ~$30 and sending in a full copy of your code that then gets filed away,
but it is rarely done by individuals, either because they aren't really
aware they should or, if they are, they weigh the hassle with the risk
and don't worry about it, for the same reason people generally don't do
backups until something bad happens.

There are other factors, like how visible the company/case could
potentially be in terms of press -- but most of these things happen in
the margins, so your real hope is a lawyer really likes you and thinks
your claim about your code is worth spending his spare time buggering
with instead of others coming to him, or whether it's of enough
interest/visibility/etc. This will all become a pretty big part of your
life, and you'll then end up going with communal shame, which isn't as
effective as you might think outside of the small circles.

So, yes, with our current system the likelihood of something bad
happening to you because you just grabbed someone's code and did
whatever you wanted is pretty small -- even if you get a cease and
desist order and ignore it, and even if someone then pulls you into
court, if their stuff isn't registered you can most likely back down and
remove it/split it/etc. and be out a bit of fees/hassle. The worst are
situations where you're basically presented with a cease & desist and a
note to settle so you don't go to court for a few thousand dollars. More
likely if a system is targeting you to make a statement, or someone has
a lawyer friend.

Yes, you can often just contact the developer and say "hey, this is what
I'm doing, is that cool?" and they might well say "Sure" -- although
sometimes developers are too congenial about this and forget that they
aren't the only contributor to the project and hence don't have a right
to sign over someone else's copyright. There's the obvious issue, but
there's also the fact that you sometimes can't count on the developer or
lead really understanding copyright or the GPL and what he thinks is
fine others might have a real issue with (eg, I've seen "um this project
wants to use this code so we might BSD it, but we can't get ahold of
these people right now... how about we just BSD it and if someone
complains we'll deal with it then")

You can take advantage of that by intentionally and willfully just doing
what you want knowing the risk of it biting you is really quite small,
but I'd propose that even if I had real philosophical problems with the
GPL, or the system in general, ignoring the system can lead yourself and
others into a lot of trouble.

An author is putting his code on a shelf for you to use under certain
conditions. It's worth respecting those conditions and assuming they put
them out there for a reason, if for no other reason than respecting that
they wrote it and it is, essentially, theirs to license as they see fit.

Those conditions are in the letter of how it was distributed and can't
be taken away from you -- learn what those conditions entail in whatever
the license happens to be, and follow them if you want to use the code
(eg, you can't take a book from the library and then decide you want to
send it to a friend overseas, even if they would really like it and it's
hard to find there -- those aren't the conditions for checking out a
library book, but you could just buy it and do it) and no matter the
author's later intentions or misconceptions you're safe and clear and
feeling warm and fuzzy when you sleep and put it on a server for download.

If you know you're stepping outside of the conditions, and will one day
want to distribute it (as opposed to just internal use), I'd say it's
worth giving the author a ping out of respect for their work if nothing
else and asking that they relicense the code in a way you can use.
They'll most likely be tickled you dig it at the least, and might well
grant it. If they choose not to and you ignore their wishes, well, the
likelihood of it ending badly is small, and that's up to you. Basically
it comes down to respecting that someone else did a certain work, and
whether you want to acknowledge that or not, and the risk of the
courts/market making you acknowledge it if you choose not to.

However, it is their work.

> I have recently been thinking of lawyers as the men-at-arms of our era.
>  Some people with weapons use those weapons to protect people.  But
> mostly weapons are used to oppress people.  And I think law in the hands
> of professionals is kind of like this.  Though this modern thuggery
> looks much more civilized of course, it's not like we haven't made *any*
> progress ;)

It's all quite frustrating and non-idea. If you're bored, you might find
"once & future king" by T.H. White, of the old Arthurian tragedies. It
was the first time I came across this concept, where the concept of Fort
Mayne ruled the land (aka, "Might Makes Right" -- if you had a
disagreement, you'd challenge a person, and whoever won the fight, well,
God obviously favored them and wouldn't let them lose - of course over
time you were then allowed to substitute your champion to fight for you)
and they slowly start to work in a system of laws. One day Arthur is
despondent, and when Merlin asks why, he basically says (paraphrased) "I
fear we have gone from a system whereby whomever had the most gold could
hire the best fighter, to whomever has the most gold can hire the best
talker." I think you'd enjoy it.



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