OT - Closing Off An Open-Source Product

[Dennis E. Hamilton]

Good point, Chris.

This comes up in discussion of public-domain code and also open-source
licenses that allow closed-source derivatives.  You are absolutely correct.

1.	There is no way, under copyright law in the United States, that someone
making a closed-source version of a public-domain or open-source software is
able to interfere with the public-domain or open-source original or any
existing copyright (or public-domain status) on the material.

1.1 As far as I can tell, there is a misunderstanding of what a copyright
claim applies to.

1.2 When I put a copyright claim on a literary work (i.e., software), it
applies to that portion of the work that is (1) my original expression and
(2) copyrightable subject matter.  It does not apply to anything in the work
that is not that.  In addition, if a portion of the work is subject to the
copyright of another, I am in violation of that copyright unless I obtain a
license from the original copyright holder that permits any of the actions
that are the exclusive right of that copyright holder.  (The U.S. Copyright
Office and web site provides lots of information on what copyrightable
subject-matter is and how this all works.  There description is pretty
understandable.)

1.3 In particular, if I take a public domain work, and the only change I
make to it is to add my copyright notice, I have obtained a copyright on
absolutely nothing.  And if I charge someone with infringement, one thing
they can do is simply produce the public-domain work and demonstrate that it
pre-existed the earliest demonstrable distribution of my "version."
Similarly, if I make  a MIDI arrangement of a popular song and publish it as
my work, there is certainly an original component contributed by me, and I
am also definitely in violation of the copyright on the elements of the
original song which I used without permission.  (There are special rules for
music and phonorecordings, but this aspect is consistent with the copyright
on literary works.)

1.4 (Because copyrights are not patents, there are even more interesting
cases.  -- If I demonstrate that I completely independently created a work,
having no knowledge of your work that it resembles, that is not an
infringement either.  And the ideas in a copyrighted expression are not
themselves subject to the copyright.)

2.	It has been pointed out to me that there is a way that an open source
*developer* might become "tainted."  If someone makes an allowable or
licensed derivative that has improvements to the original work, and does not
elect to use the original license, the developer needs to be extremely
careful about learning about those and about incorporating any of them back
into the original open-source version.

It seems to me you are entirely correct.  There is no way to pre-empt the
public-domain or open-source status of a work of software by wrapping the
covered work in copyright notices and proprietary notices.

-- Dennis

-----Original Message-----
From: python-list-admin at python.org
[mailto:python-list-admin at python.org]On Behalf Of Chris Watson
Sent: Tuesday, April 10, 2001 19:17
To: Mitchell Baker
Cc: David Ascher; tchur at optushome.com.au; mertz at gnosis.cx;
python-list at python.org; DickH at ActiveState.com
Subject: Re: Komodo in violation of Mozilla Public License?



> This allows us to make sure that MPL code is always open and not
> privatized.  At the same time, it allows those building products to

You know I usually let this slip because I get sick of license wars. But
can you explain to me how the MPL or any other public license prevents the
closing of source covered with that license? If I release foo.c version
1.0 under a MPL. And company A comes along and takes a copy of the source
of foo.c 1.0 and closes it off and refuses to release work they did on it.
Can you tell me what magical creature came along and removed foo.c version
1.0 under the MPL off the face of the globe? The same version that company
A borrowed/used/stole/whatever. I mean maybe im missing something. Maybe I
dont have enough conspiracy theory blood in me. But how can you close a
copy of source that is given to the public? Who or what comes along and
with divine intervention removes the public version from the planet?

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