[WikiEN-l] Non-Commercial Usage

[Geoff Burling]

On Tue, 29 Nov 2005, Karl A. Krueger wrote:

> 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.
>
Obviously you can't imagine how images can be reused in print. Let me
explain.

Some harried worker at an advertising agency needs some faces to add to
an advertisement for their client, Quick & Puke Foods. Said worker surfs
the web, grabs a couple of faces, & inserts them into the background, &
an altruistic person discovers his dead grandmother staring at him
from that ad for Quick & Puke -- to his consternation.

Perhaps suing the ad agency, Quick & Puke & everyone else involved will
achieve some desired results. Or the judge will decide that no harm was
done & dismiss the case. Me, I'm perfectly happy keeping those images to
myself & remaining ignorant about how a court might actually rule.
>
> > 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.
>
Different language, same result: the advertising campaign comes to a
halt, the ad company & their client loses money -- all while this matter
is hashed out. And if it were *my* material that got sucked into this
creation, I'd insist on allowing reuse under the same terms they accepted
when they use my material: release the finished product under GFDL.
>
> > 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.
>
The phrase "tested in court" refers to a judge making a ruling whether
the terms of the GFDL (or the GPL, as you mention in this case) are
enforcable. As I said, I'm unaware of either license being recognized in
a court in a manner to create a precedent; your example is the first I
have heard about. And I'm glad it stood.

[snip]
>
> 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?
>
You really haven't read about the University of California at Berkeley
vs. AT&T lawsuit, have you? It is an interesting case. AT&T, then the
owner of UNIX, sued UCB over copyright infringement for their version
of UNIX. At first, it looked like a sure win for AT&T, but after the
process of discovery had finished, it was discovered that AT&T had
incorporated large chunks of code that belonged to Berkeley -- without
furnishing the copyright notice that UCB required for reuse. The judge
opined that the university had viable grounds for a countersuit, & AT&T
was forced to negotiate a settlement (otherwise known as a surrender).

This case illustrates a little-known fact in the software industry:
the source & ownership of much of the proprietary code out there is not
certainly known. And I'm sure that more than one corporate manager
would admit that some parts of code look embarassingly similar to
the same code found in textbooks or even competitor's codebases. This
is not to say that anyone *intentionally* stole software from anyone
else -- just to say that there are an awful lot of questions about
lines of code that people would prefer not to ever need to answer.

SCO was banking that this was the case at IBM. Unfortunately for them,
IBM has been playing a similar game *cough* patents *cough* for decades,
& early on had taken the necessary measures to prevent something like
this being done to them. (It also helped that SCO's tactics were sloppy
& badly executed, but that's not relevant.)

Another factor about business fear of GPL/GFDL is that it's something
new & that many of them don't understand it. I think that, with a bit
of imagination & research, one can easily make money with GPL/GFDL; but
until someone makes billions with it -- much as a bunch of guys outside
Seattle made money from their strategy with computers -- I won't be
finding too many businessmen agreeing with me.