18 Oct
2011
18 Oct
'11
3:05 p.m.
vintagecoder at aol.com wrote:
No, it is not conjecture. There is no legally recognized natural right
to a monopoly on a work; it is copyright law that grants a monopoly for
a limited time. Absent the copyright, there is no monopoly. Since the
IBM software was not copyrighted, anyone who had it could legally give
you a copy, and IBM would have no recourse.
This is true regardless of whether you could actually find someone
willing to give you the copy. A party choosing not to exercise a right
to distribute doesn't demonstrate that they didn't have a right.
I disagree. The provision of source code to anybody
who wants it,
whether a
licensee or not, is what makes something open source.
That's a strange definition of open source. You're saying that if I
have source code to a program from Joe, and I have a legal right to give
a copy of it to anyone (including you), but that Joe won't give you a
copy directly, that it isn't open source?
The definition of open source is about someone who possesses the source
code having the right to distribute it, not whether anyone (including
the original author or the owner of the copyright) is under an
obligation to give it to anyone who asks.
You're not confusing "open source" with the GPL, are you? The GPL can
impose obligations to distribute, but "open source" does not.
If you can't get the
source unless you buy hardware and sign a license agreement, that is
certainly not open source.
It wasn't the case that you could only get the source if you bought
hardware and signed a license. Anyone who had the source code was
allowed to give it to you, since it was in the public domain.
Whether any particular party was willing to give it to you is irrelevant.
In the past, I have personally released source code into the public
domain. I happen to no longer distribute that particular source code.
If you ask me for it, I will tell you that I am unwilling to provide a
copy to you. Nevertheless, it is open source, as anyone that has it is
allowed to give you a copy, if *they* choose to do so. It has nothing
to do with who *you* choose to ask for it.
Not true.
Since there was no copyright, you could legally obtain a copy
from anyone else that had one.
That is just conjecture and nothing more. There's no evidence anybody who
wasn't a paying customer obtained a copy.
I don't think there is hard evidence either way, so that lack of
evidence doesn't really support either of our arguments.
Whether it was legal for someone to give you a copy, and whether they
actually did give you a copy, are two completely different things. Even
if no one actually gave you a copy, they had the legal right to do so.
That suggests to me there was an intent to protect the
source and they
didn't know how. YMMV.
It suggests that there was an intent to protect the manuals. It is
*highly* speculative to conclude that there was an intent to protect the
source code. However, it is also completely irrelevant since they
didn't protect the source code.
It is in the public domain *now* because somebody
(Rich Fochtman)
received
explicit permission from IBM along with the archive
tapes, and made them
available on a web site.
Wrong. It is in the public domain because it is not copyrighted.
The law at the time was that to be protected by copyright, works had to
bear a copyright notice. There was a minor exception for works on which
such a notice was accidentally omitted, and that exception required that
an attempt be made to correct the omission, and there is no evidence
that this was done.
The law today still holds that works published before March 1, 1989, and
not bearing a copyright notice, are not copyrighted. There is a new
exception for works first published outside the U.S. before March 1,
1989, without a copyright notice, but which had copyright protection in
the country of publication. It does not appear that the pre-unbundling
IBM software is eligible for this exception.
There are any number of reasons why Rich Fochtman may have asked IBM for
permission. For instance, he might not have been sure that the code was
in the public domain. By getting permission (even if it wasn't
necessary), Rich was protecting himself in case the works turned out
(for whatever reason) not to have originally been in the public domain.
The fact that the request was made doesn't prove that the works weren't
already in the public domain.
There are any number of reasons why IBM may have granted such
permission. IBM granting permission could not possibly make it *more*
public domain than it already was. Beyond that, even if IBM had
*denied* permission, it still would have been public domain. A work
that is not copyrighted is in the public domain regardless of what the
author has to say about it; it is a matter of law, not of anyone's
opinion, request, or demand.
Since *at the time it was released* none of these
OS were posted anywhere and were shipped only to paying, licensed
hardware
customers on tapes, it was not open source at the
time.
It most certainly *was* open source, and there is a simple proof:
1. The software (including source code) lacked copyright notices.
2. By U.S. law, due to the lack of copyright notices, the software
(including source code) was not copyrighted.
3. By definition, since the software (including source code) was not
copyrighted, it was in the public domain.
4. Source code that is in the public domain meets the definition of
"open source" (regardless of whether any particular party is
willing to give you a copy).
Eric