[TUHS] Ultrix...

Ian King iking at microsoft.com
Sat Sep 7 02:58:42 AEST 2002

Distribution can be restricted by agreement - for instance, I can share source code with you under an agreement that you will not disclose it to others, and I can seek redress if you do disclose.  That is common with software.  But even absent modifying contract, the "fair use" right you mention is not absolute and unfettered.  If I write a book and it is published, you cannot decide to print your own copies and distribute them; I have not waived my rights under copyright by publishing.  Indeed, the book does NOT "pass into the public domain" until after expiration of my copyright.  This is no different from the case where I invent and create a physical object and distribute it, subject to patent rights that I have acquired; although the physical object is (by logical necessity) out in the public, others may not freely copy it and deny me the benefit of my creativity.  "Publishing" is "making public," but not "placing into the public domain" - you have correctly stated that "public domain" is a legal concept, but incorrectly defined it.  Even distribution for no material gain (e.g. "freeware") is not "public domain."  
DEC (and others) wrote some interesting licenses; although I might buy a DEC computer from you, complete with its software, I would not be legally entitled to use the software until I had negotiated my own license with DEC (or now, most commonly, Mentec).  I've always thought that was a bit greedy, but it is lawful to create a non-transferrable license.  Today, once the license fee for a given copy has been paid, that license is usually transferrable to another; I can give (or sell) you a copy of a book I purchased, too.  But that does not change the author's rights to the material, nor those of the party in possession; it is simply not true that "placing the work in the hands of the public" means "they may now be freely redistributed".  
Software does make things more complex; the corpus of law around it is still being established.  However, the fundamental principle of a party's right to control of and recompense for his/her/its work product, be it physical or intellectual, still applies.  Anyone who denies that, and acts accordingly, is simply a thief, notwithstanding their erudite rationalizations.  -- Ian 
My opinions do not necessarily reflect those of my employer.  

	-----Original Message----- 
	From: Mirian Crzig Lennox [mailto:mirian at cosmic.com] 
	Sent: Fri 9/6/2002 6:59 AM 
	To: tuhs at minnie.tuhs.org 
	Subject: Re: [TUHS] Ultrix...

	On Fri, 6 Sep 2002 02:27:39 +0100, Tim Bradshaw <tfb at tfeb.org> wrote:
	>* Mirian Crzig Lennox wrote:
	>> In fact, the concept of "intellectual property" is a fairly recent
	>> perversion, and the consequence has been a steady depletion of the
	>> public domain.  When a piece of software (and Ultrix is an excellent
	>> example) is tied up in copyright long after it is of any value to
	>> anyone beyond pure academic interest, nothing is added to anyone's
	>> wealth, and society as a whole loses.
	>I think this is kind of unfair in many cases.  Firstly copyright has
	>lasted for a fairly long time for, well, a fairly long time. It's not
	>some sinister new development which is keeping ultrix in copyright.
	Copyright has existed for roughly 300 years[1].  However, the
	construction of copyright as a form of property is a relatively recent
	development.  The original copyright term in the U.S. was a mere 14
	years[2], and copyrights were adjudicated under tort law, not property
	law.  As framed in law and interpreted by U.S courts, the purpose of
	copyright is foremost the public good (hence the "fair use" doctrine);
	the act of 'publishing' is, as the etymology of the word suggests, a
	contribution by the author to the public domain, in return for which
	he or she is given exclusive right to profit from that work for a
	limited prior time.
	However, since 1960 the term of copyright has been extended 11 times,
	so that no copyrighted work published before 1923 has entered the
	public domain (nor will it until 2018, save for future extensions of
	the term).  The depletion of the public domain is real.
	>Secondly, it's all very well to say that old and valueless bits of
	>software should be freed, but if you are the organisation which has
	>the copyright on these things it's really less trivial than you might
	>think to just give them away.  For a start, there's (almost by
	>definition) no money in it, so any kind of work needed is costing
	>money.  Secondly there may be just plain trade-secret stuff in there,
	>what do you do about that?  There may be all sorts of other awful
	>things that you don't want to let the world see.
	This is all a totally unrelated issue however.  Copyright refers
	necessarily only to published materials, and published materials
	cannot (by definition) be trade secrets.  Furthermore, "public domain"
	refers merely to legal status, not to any obligation to make physical
	materials available.  The presumption is that if a work is published,
	then copies already exist in the hands of the public, and they may now
	be freely redistributed.
	[1]  The Statute of Anne (1710, in England) is considered to be the
	     precursor to U.S. copyright law.
	[2]  It could however be renewed for a single further period of 14
	     years, provided the initial author was still alive.
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