[copyleft-next] Distribute, make available, publicly perform

Engel Nyst engel.nyst at gmail.com
Sat Aug 16 06:41:37 UTC 2014


I'll try to record, in imperfect form, a few questions and thoughts.

1) 0.3.0 says
"non-exclusive, worldwide, perpetual, royalty-free, irrevocable
copyright license, to reproduce, Distribute, prepare derivative works
of, publicly perform and publicly display My Work."
"Distribute" means to distribute, transfer or make a copy available to
someone else, such that copyright permission is required."

1.1) Is "to someone else" necessary, or "public" is suitable?

If I compare the wording with the copyright act[1], it seems that
106 (1) and (2) are individual acts, while (3)-(6) all refer to the
"public".
"To someone else" compared with "to the public" has a more extensive
connotation, it seems to catch cases which may apply to more than public
distribution/performance/display/transfer. (whatever that would strictly
be)

"such that copyright permission is required" probably takes the
extension (if there was any indeed) back to only the cases specified in
the enumeration of exclusive rights, so maybe it's no big deal. Still,
if all else is equal, I wonder if it's better to use the term "public"
instead of "someone else".

1.2) What is the reason for the inclusion of the concept of "making
available a copy"?

2) Latest draft, with the Affero provision, says
"Network Service means delivery of software functionality to third-
party users in which distribution of most of the software does not
occur, with users instead primarily accessing such functionality
remotely, through network requests made by a client program, such as a
web browser, to a server running the software."

2.1) Is "in which distribution of most of the software does not occur"
necessary?

I think the definition stays the same without it.

2.2) Some critics of the AGPL remark that it doesn't refer anymore to
distribution, but to using or running the program on one's own server.
That's perceived as a restriction on running the program, and it
sometimes raises doubt about its freeness. Unfortunately, it seems easy
to understand Affero provision as expanding the definition of
distribution, or as restrictions on running the program, although none
of them is what happens in Affero.

I'd ask something else: what exclusive privilege exactly is
impacted in the activity targeted by Affero?

I think public performance is impacted, not distribution.
Reproduction - and making derivatives - are also impacted, of course,
because "you" made a copy, but these lead to the doubts above, and
they're not the point. I can make copies and derivatives and run them
with no effect. But Affero needs to kick in when I offer a /public
network service/.

What do you think about an attempt to draft it about public performance?

I tentatively submit that to me it seems a corresponding expression of
the Affero trigger in copyright terms, and I think the imagery can
convey better the intention of the provision. Although the concept of
public performance has not entered public conscience as applied to what
a network service does in relation to the software package, still it
illustrates what happens here, and it makes perfect sense to condition
it where appropriate.

I'm at loss what other legal effects would be though... Just thinking
I'd better submit this idea instead of not doing it.


2.3) "You may prepare a Derivative Work that is designed primarily to
provide a Network Service"
This seems to limit the trigger for Affero provision to derivative works
that are specifically designed to provide a Network Service.

AGPLv3 says "if your version supports such interaction".

In my reading, "if your version supports" is more expansive than
"designed primarily".

Do I understand this correctly, is the Affero condition intended to NOT
apply to certain applications or libraries, which use an AGPLed library
and may support interaction through a network, but are not "primarily
designed" for it?


[1] http://www.law.cornell.edu/uscode/text/17/106

-- 
"Excuse me, Professor Lessig, may I ask you to sign this CLA, so we can
*legally* have your permission to distribute your CC-licensed works?"


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