Open Source Beer Served Cold, With a Heated Licensing Discussion 112
sethopia writes "Sam Muirhead enjoys a couple of open source beers and delves into their licenses (Creative Commons BY-NC-SA) and the recent CC Non Commercial license controversy. As Sam writes, 'Depending on your point of view, the Non Commercial license is either the methadone that can wean copyright junkies off their all-rights-reserved habit, or it is a gateway drug to the psychedelic and dangerously addictive world of open source and free culture.'"
Comment removed (Score:3, Interesting)
Re:Copyrightable? (Score:5, Interesting)
Eh... (Score:5, Interesting)
CC 'non-commercial' strikes me as actually overwhelmingly different, in terms of objectives and in terms of the interactions being planned for(or against) than the more software-focused GPL/LGPL/BSD/MIT crowd:
With the software-focused licenses, the thinking(regardless of which camp you fall into on the questions of which interests you value most highly) is really about the relationship between the original developer, intermediate bundlers/distributors, and end users. Some licenses(ie. BSD) prefer to impose basically no restrictions beyond attribution on the intermediate users, considering it sufficient that the original developer can do what they want, and the end user(while they may or may not have any access to the guts of whatever binaries they get from the intermediate bundlers) does have access to the original project. LGPL is more aggressive about protecting the interests of the original project; by requiring intermediate distributors of works that include the original to make their changes available; but doesn't go much further than BSD in terms of watching over the end user. GPL explicitly demands that the end user's interest in access to the code be preserved, and the AGPL and GPL3 address the same interests in the context of 'cloud' and 'tivoized' scenarios.
However, across all of that, 'commercial/noncommercial' isn't an area of distinction. Obviously, these licenses have an effect on the viability of certain commercial schemes; but they have no explicit objectives in that area: If you can find a way to make money by selling software that is available in source form under the GPL3, rock on. If your freedom to add whatever proprietary features to FreeBSD can't save you from being crushed by generic upstream FreeBSD, sucks to be you.
By contrast, the whole idea of 'commercial' vs. 'noncommercial' reflects an explicit focus on matters that the software focused licenses leave implicit or simply consider an irrelevant detail to be worked out by what people can actually manage to succeed or fail at making money on. The closest analog, perhaps, is the bit in GPL compliance where it applies only if you distribute, not if you use internally. "Commercial/noncommercial" is a sort of much broader extension of that, positing that there is a 'noncommercial' area of culture-as-something-that-people-do that is separate from, and not merely a 'cottage industry' scaled version of the 'commercial' culture-as-something-that-media-industries-do, which is a monetary phenomenon and distinct both in degree and in kind from the noncommercial flavor.
In the context of software, I have to admit that I like the conceptual frameworks of the software-oriented licenses much better. This isn't to say that software cannot be a cultural thing; but most software is tools, complex tools, and it seems both appropriate and pragmatic to think about tools in terms of "How can we get good tools?" and "How can we ensure that our labor in producing tools ends up putting tools in the hands we want them to end up in?" OSS/FOSS licensing is a rather novel technique, born of the peculiar economics of software, for answering these questions; but it's actually a fairly conservative conceptual framework.
If anything, the 'Commercial'/'Noncommercial' framework is much more radical: The implicit assertion that there are areas of cultural output that are simply not amenable to resolution along the lines of market commerce(while certainly supportable, if Team Anthropologist fancies a trip back from the tribal regions to inform us that people who don't even have currency somehow manage to have music...); but it isn't necessarily something that would be a natural fit in ye olde contemporary consumer capitalist economies of the early 21st century... By contrast, CC-sharealike, CC-attribution, and similar are practically analogous to the software-oriented concepts, just written to cover non-software more cleanly, in that they don't posit this commercial/noncommercial distinction; but are more focused on either the GPL-style protection of the downstream user and the upstream developer, or the BSD style protection of attribution without significant interference in the distribution process.
Re:Copyrightable? (Score:4, Interesting)
Uniform Trade Secrets Act (not itself a law, but a model law which has been adopted by many states with minor modifications):
"'Trade secret' means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
It is no longer a trade secret. Period. None of the obligations of the CC licence impose a secrecy obligation, therefore the recipe lost whatever claim it had to trade secret protection. It is readily ascertainable by proper means, and not subect to reasonable efforts to maintain its secrecy.
So long as you don't use this particular copy of the recipie to manufacture your commercial beer, you're free to use the ingredients and process to manufacture your commercial beer. Reduce the recipie to a bare list of ingredients and a minimal description of the process, remaining as objectively factual as possible. Avoid quoting anything that you absolutely do not need to. Then go about your business.
The law concerning recipies is clear and settled. Federal Rule of Civil Procedure 11 is your friend.