[WikiEN-l] Non-Commercial Usage

[Karl A. Krueger]

On Mon, Nov 28, 2005 at 10:01:32PM -0800, Geoff Burling wrote:
> While I disagree with much of what you have said, I'll admit you have a
> point there, Mike. One reason I'll never release images of my friends or
> family under GFDL or CC is that I don't want to be surprised one day
> by finding that their image has been photoshopped into an ad or a
> commercial for a product or company.

As others have noted here, the relevant law preventing this unjust act
has nothing to do with copyright (or defamation) and everything to do
with [[personality rights]].  There are GFDL-licensed photographs of
Richard Stallman available on the FSF's Web site, but I would still be
violating Stallman's rights if I were to take one and turn it into a
poster implying that Stallman endorsed my favorite project.

Hell, even if I were to take a picture of Stallman myself (and thereby
hold the copyright outright!) I would still not be within my rights to
use that image to misrepresent Stallman as promoting my project.


> But what _might_ be worth a conversation -- or at least a moment's
> consideration -- is that introducing GFDL material into an advertisement
> makes that creation GFDL'd too. By using free images (free as in speech,
> not as in beer, as the cliche goes), the advertisement then -- at least
> in part -- becomes free.

This seems to be a common confusion.  A person who inserts GFDLed work
into their own published work does not *thereby* grant a GFDL license
for their work.  (If that were the case, GFDL would be a contract of
adhesion, which it is not; it is merely a copyright license.)

Rather, if I insert GFDLed work into my own published work and *fail* to
grant a GFDL license for my work, I thereby infringe upon the GFDLed
work's owner's copyright.

What happens next is for me and the copyright holder to negotiate.  It
may be that the copyright holder is willing to grant me a license to
republish their work on different terms, perhaps for a fee, so that I am
no longer infringing.  It may be that they convince me to relicense my
work under the GFDL and thereby stop infringing.  It may be that (if
they have a registered copyright) they sue me and collect statutory
damages for my infringement.  Or it may be that they simply go get an
injunction forbidding me from publishing my infringing work at all.

In any case, there's *nothing* in either the GFDL nor the copyright law
that would *automatically* place my work under the GFDL without my
explicit action to do so.  Copyright permits the original author to
forbid the publication of derivative works -- it DOES NOT permit the
original author to appropriate those works' copyright and set their
licensing terms.


> This may not stand up in court (the GPL & its related licenses have never
> been tested in court to the best of my knowledge), but the legal uncertainty
> there is strong enough that no businessman will lightly use material
> released under a Gnu-like license.

Hardly!  The GPL has certainly been tested in a number of legal cases;
and GPLed material is used (and distributed) by a huge number of
businessmen and -women.

The only case which actually reached a final decision by a court was in
Germany, between the authors of the Linux Netfilter (iptables) code and
a company called Sitecom.  In that case, the court upheld that Sitecom
had infringed the Netfilter authors' copyright by failing to adhere to
the terms of the GPL.

(See [[General Public License]].)

Other cases involving the GPL have led to settlements ... which is not
unusual since most lawsuits end in settlements.  However, these
settlements have been uniformly in support of the GPL's strength.

One of the earliest involved NeXT and the FSF.  NeXT released a modified
version of the GCC compiler as their Objective-C compiler, without
meeting their GPL obligations.  FSF pursued them for it; they settled,
with NeXT agreeing to release their changes under the GPL.  That release
ended up being quite profitable:  After NeXT folded back in to Apple
Computer, they were able to use GCC's Objective-C compiler (which had in
the meantime been maintained by the FSF) in Mac OS X.

A more recent case was the one between NuSphere and MySQL AB, which also
ended up in a settlement favorable to the GPL.

(And then there are the several ongoing cases in which SCO is presently
embarrassing themselves.)


The claim that "no businessman will lightly use material released under
a Gnu-like license" seems rather unusual.  Today, some huge number of
businesses do use and distribute material (specifically, software)
released under just such licenses.  While some proprietary software
firms have attempted to panic the marketplace about GPL-type licenses,
their motives for doing so are pretty transparent and their arguments
not especially credible.  What are yours?

-- 
Karl A. Krueger <kkrueger at whoi.edu>