Open source code with absent author and no stated license - what would you do?

[SiliconWizard]

Interesting discussion. Yes, I was probably being not detailed enough when I said that it meant giving up the copyright altogether, but surely it is giving up some of the associated rights.

Now, this is a huge mess in itself, and whoever claims to fully understand not the concept itself (which I guess most of us do, at least here in this thread), but all the consequences, is probably a bit delusional. It's a major rabbit hole. And there are tens, if not hundreds of open-source licenses, all with subtle differences.

The fact the holder of the copyright might give their work some open-source license, and possibly change it "at will" is horrible for whoever chose to use said work based on the license that was attached to it when they made the decision. I'm no lawyer, so I don't know what exactly the copyright holder can or cannot do once they publish some work with a given license (so can the author really change the license at will at any moment?) And what about the derived work? (Forks, etc?) Any license not mentioning "perpetuity" is a time bomb.

Let alone that "open source" and "free software" are not the same thing, and while each has its own issues, "free software" tends to - while being "restrictive" in some ways - be more consistent and easier to grasp. I'm not particularly "advocating" it, I'm just saying. And I know how there is almost a "war" between the two. At least there is some serious activism there.

[Cerebus]

The fact the holder of the copyright might give their work some open-source license, and possibly change it "at will" is horrible for whoever chose to use said work based on the license that was attached to it when they made the decision. I'm no lawyer, so I don't know what exactly the copyright holder can or cannot do once they publish some work with a given license (so can the author really change the license at will at any moment?) And what about the derived work? (Forks, etc?) Any license not mentioning "perpetuity" is a time bomb.

There's nothing stopping several licenses applying to a work at the same time that have been granted at different times. So if you license a work under licence 'A' in 2019 and then the author switched to licencing under licence 'B' in 2020 for new licences granted, you will still be licenced under the terms of licence 'A' unless license 'A' includes explicit provision for the grantor to unilaterally withdraw it or unilaterally impose new terms.

[nctnico]

If the name of the author was in the source files, I would assume that copyright laws would apply by default.
Now if there is absolutely no mention of anything, I think you can safely assume it's in the public domain.

I think that would be a bit of a stretch, especially in this case that the author is readily identifiable, albeit not mentioned explicitly within the work. I mean, the author's GitHub username is his full name.

I don't believe works can be assumed to be in the public domain unless either specifically stated to be by the creator, or published in a truly anonymous manner, although maybe I'm wrong.

Copyright must be transferred explicitely. Even an 'EULA' on Github saying that anything that is posted without a copyright belongs to Github, might not hold up in court at all.

All in all: Don't use code like that in a commercial project. Sorting out the copyright situation first is mandatory.

[bsdphk]

Which brings an interesting, albeit probably purely theoretical, question.

The text of some FOSS license explicitly mention that the license is perpetual, e.g. Apache. Deal done.

Some other, like BSD, does not mention perpetuity.

As the copyright holder, I think I could revoke it (generally, or just to you because I don't like your t-shirt).
Would it be possible, and if yes, has something similar happened?

Strictly speaking, that question which can only be settled in a court.

Licenses are "contract-law" and what a contract means depends on the country you are in, or even the judge or jury you are in front, because that is entirely a matter of interpretation.  With that said, the most pervasive paradigm is to ask what "a reasonable person would expect".

If the BSD license came in two variants, one saying "for ever" and one not, a reasonable person would not expect the variant without those words to be eternal.

Without such a "legal hook", the court will look at the "overall structure and intent" and almost certainly find that the license amounts to "Have at it, dont claim you wrote this, and dont bother me." and conclude there is no sign of intent to limit the duration of the license.

Having granted such a license, if you tried to pull it back, for reasons unrelated to the text of the license, for instance an ugly T-Shirt, you will run into tons of contract-law, about proper notice, about breach of contract etc. etc. and you will almost guaranteed loose on a legal theory of "you signed it then, you cant change it now." (I cant remember the fancy latin name for that.)

The reason why US corporate lawyers (slightly) prefer the BSD to the Apache or MIT license, is that the BSD license has been in court.

In what was probably one of the most suicidal legal maneuvres ever, USL, UNIX System Laboratory, sued University of California, Berkeley - which happens to have one of the better law-schools in USA, without doing their homework.

UCB sued back, pointing out that USL had lifted a lot of BSD licensed material and not complies with the terms of the license.

Novell, who had bought USL in the meantime, folded and agreed to a very one-sided settlement, because if they lost, they would have to reprint, or otherwise update, every single UNIX manual then in existence to acknowledge the BSD license applied.

But lawyers still see this as very strong evidence that the BSD license will "hold up in court", even though the court did not actually decide the case.

See: https://en.wikipedia.org/wiki/UNIX_System_Laboratories,_Inc._v._Berkeley_Software_Design,_Inc.

[SiliconWizard]

So yeah, this is indeed a major rabbit hole.

I've also seen a court decision stating that the violation of an open-source license was actually the violation of the copyright. Which might seem to make sense, but again opens a huge can of worms.

[golden_labels]

I've also seen a court decision stating that the violation of an open-source license was actually the violation of the copyright.

It would be extremely surprising if a court would say otherwise.

Offering any particular licensing terms does not make you lose ownership of the work. Even if you release under CC0 or WTFPL, you do remain the owner. This is why it is important to retain copyright notices in pseudo-PD works whenever possible: there are still rightholders, even if effectively they disarmed themselves. If you want to protect people using a work, it’s of uttermost importance to make terms clear and to maintain provenance of the work. Failing to do so is causing trouble downstream.

When talking with people that’s the recurring theme: inverted perception of the situation. People often think that a license is what reserves rights and no license means “do what you want”. In reality it’s exactly opposite: the default is “you can do pretty much nothing” and the license is a permission to do something. It’s literally in the name: word “license” is a synonym for “permission”.

[bsdphk]

Which might seem to make sense, but again opens a huge can of worms.

No, it is the lid that keeps the worms in the can to begin with.

You create something, you have all rights to it, if anybody else wants to do something with that work, except comment on a (public!) disclosure of it, they have to ask for your permission, and if you give it, you have offered given them (a) license.

[SiliconWizard]

Which might seem to make sense, but again opens a huge can of worms.

No, it is the lid that keeps the worms in the can to begin with.

You create something, you have all rights to it, if anybody else wants to do something with that work, except comment on a (public!) disclosure of it, they have to ask for your permission, and if you give it, you have offered given them (a) license.

It's interesting how some people are oversimplifying things and refuse to acknowledge the potential consequences ARE a rabbit hole and almost impossible to fully grasp. Some humility might help?

There is precisely a major issue with the above. Typical open source projects are collaborative by nature, there isn't just a single creator to them. That's where the rabbit hole starts, but not where it ends, of course.

While some people are against copyright altogether (which is another story), I am not. If I'm the creator of some work, I want to hold a copyright. That's fine. Now if I become part of a large project with thousands of contributors, and potentially even many forks, then it does become absurd if I still claim ownership. And again the subtle consequences of any kind of license you could put on some work quickly become intractable. Even the concept of a single original author can become almost absurd at some point.

That's why I said that, not necessarily that I promote it, but at least I do understand the "free software" movement that, even if it poses other problems, at least gets rid of all those potentially absurd issues.

[nctnico]

Which might seem to make sense, but again opens a huge can of worms.

No, it is the lid that keeps the worms in the can to begin with.

You create something, you have all rights to it, if anybody else wants to do something with that work, except comment on a (public!) disclosure of it, they have to ask for your permission, and if you give it, you have offered given them (a) license.

It's interesting how some people are oversimplifying things and refuse to acknowledge the potential consequences ARE a rabbit hole and almost impossible to fully grasp. Some humility might help?

There is precisely a major issue with the above. Typical open source projects are collaborative by nature, there isn't just a single creator to them. That's where the rabbit hole starts, but not where it ends, of course.

Yep. At some point they changed the license of an opensource project -IIRC OpenOCD-. For that to work out they had to chase down every contributor to the code and get permission to change the license.

[cdev]

just because some people are trying to kill FOSS doesnt mean that they will or that the concept is dead or thats its okay to steal everything and anything thats not clearly owned by some oter rich person.

 There is a reaction to that and one could argue that its a theft of everything thats going on. I think the evidence for that being true is fairly strong.

Useless rant deleted

[cdev]

Maybe the author is absent because he or she has been targeted by people who want it, for some bad reason. Or maybe they arent absent, copyright and patent owners have to register their names and addresses. In each jurisdiction.

I recently came across a piece of software published on GitHub that could prove very useful to me. There are a number of bugs I have discovered, and there are a few improvements I want to make. However, the situation that has cropped up is:

• The author seems to be absent or incommunicado. I have filed a few bug reports, and even a pull request with some fixes. But it has been a few weeks since, and no response to anything at all.
• The software is not branded with any kind of licensing information. Not in readme, source code, etc. I assume it is meant to be open source, as otherwise the author would not have published it on GitHub, right? And I do believe the author intentionally did so - i.e. not some private thing made public inadvertently - because the readme file is very much written in a way that is providing documentation and explanation for other people.

So what do I do? I'm hesitant to fix any more bugs or make any significant changes or improvements without knowing how it's licensed, but nor am I able to find out due to lack of response from the author."

-----end of quote---

What would you do? *Make your changes to the project and list your contact info on github.***   Be open and publlic..

Be honest
*
 Use your changes. I dont get what you want to do, if its free software, use it.

Are you trying to steal it?  Its NOT just yours, you know.

[Cerebus]

Or maybe they arent absent, copyright and patent owners have to register their names and addresses. In each jurisdiction.

It never ceases to amaze me how many people will make definitive statements about copyright who clearly don't know how copyright works. If you are in a Berne Convention country* you do not have to register copyrights, copyright vests (without any formalities) in the creator the moment a work is made. Half the world seems to think that copyright works the way it did in the USA before it joined the Berne Convention in 1989.

* List of parties to international copyright agreements

Berne convention countries in blue, non signatories in grey:

[cdev]

I've repeatedly heard that the more recent instruments are in charge and that Berne, was dead, for examplewho says that there is intelectual property anyway,  what about TRIPS and TRIMS, and the WTO?

Who crowned them?

who made up the patent system, and what exactly is owned, and who owns who?

[bsdphk]

Now if I become part of a large project with thousands of contributors, [...]

[...] then that project better have an 'on-boarding' procedure which informs and educates you, about the project's copyright strategy and compliance requirements, or they will soon have a proper mess on their hands ?

Yeah, that's pretty much how the world works ?

But the mess does not emerge because of the rules of copyright, it emerges from the lack of attention to copyright.

Note that some see such a mess as an strategic advantage, with an argument that goes roughly "Any lawyer hungry for a fight, will first have to figure out who to sue, where to sue them, and which copyright law applies there.  Centralizing the copyright only makes that easier for them."

I have myself seen indications that such a strategy will work, in the form of US lawyers asking "Denmark, that's in Minnesota, right ?", who after being taught a bit of geography, is never heard from again.

That is not to say that only US lawyers cause copyright heartburn for FOSS projects, but they are certainly the main cause of it.

[james_s]

For personal use? Who cares? Just do whatever you want with it, nobody is going to come knocking.

[newbrain]

But the mess does not emerge because of the rules of copyright, it emerges from the lack of attention to copyright.

Having been part of a failed attempt to relicense a piece of LGPL2 FOSS (to Apache 2), I can testify the difficulty and pain when such policies are not in place.
Some of it had copyright from no longer existing firms and passed away persons.
In some case it was possible to track the new owners, in others it was impossible.
Even if the technical board, representing the majority of the current enterprise and personal contributors, was in full agreement, we realized very soon it was an impossible task.

Of course, when the product was born it was not expected for it to grow enough for these things to matter...

[cdev]

Lawyers are "only" $1200/hour.

Buy your rights.

But the mess does not emerge because of the rules of copyright, it emerges from the lack of attention to copyright.

Having been part of a failed attempt to relicense a piece of LGPL2 FOSS (to Apache 2), I can testify the difficulty and pain when such policies are not in place.
Some of it had copyright from no longer existing firms and passed away persons.
In some case it was possible to track the new owners, in others it was impossible.
Even if the technical board, representing the majority of the current enterprise and personal contributors, was in full agreement, we realized very soon it was an impossible task.

Of course, when the product was born it was not expected for it to grow enough for these things to matter...

[cdev]

For personal use? Who cares? Just do whatever you want with it, nobody is going to come knocking.

He wants to own/steal it, cant you tell from how he phrased it?

FOSS is against their religion.

[cdev]

Now if I become part of a large project with thousands of contributors, [...]

[...] then that project better have an 'on-boarding' procedure which informs and educates you, about the project's copyright strategy and compliance requirements, or they will soon have a proper mess on their hands ?

Yeah, that's pretty much how the world works ?

But the mess does not emerge because of the rules of copyright, it emerges from the lack of attention to copyright.

Note that some see such a mess as an strategic advantage, with an argument that goes roughly "Any lawyer hungry for a fight, will first have to figure out who to sue, where to sue them, and which copyright law applies there.  Centralizing the copyright only makes that easier for them."

I have myself seen indications that such a strategy will work, in the form of US lawyers asking "Denmark, that's in Minnesota, right ?", who after being taught a bit of geography, is never heard from again.

That is not to say that only US lawyers cause copyright heartburn for FOSS projects, but they are certainly the main cause of it.

Its a global grab, a big theft of the world from we, all its people, one that started on January 1, 1995.

[cdev]

Fork it, add your own fixes to your version, don't waste your time reporting under their version.
Maybe note in one of your bug reports, "fixed here" if you want to lead others to your fixes.

Good advice, don't buy into the war on FOSS and public education!

[CJay]

Or maybe they arent absent, copyright and patent owners have to register their names and addresses. In each jurisdiction.

Half the world seems to think that copyright works the way it did in the USA before it joined the Berne Convention in 1989.

That assumption got the MD of a company I was involved with in court, he'd worked on the premise that because it didn't include any copyright info that it was fine to pirate software.

However:

If I were the OP, I'd have no qualms fixing and using the code for personal use

[Cerebus]

For personal use? Who cares? Just do whatever you want with it, nobody is going to come knocking.

He wants to own/steal it, cant you tell from how he phrased it?

FOSS is against their religion.

Could you please refrain from slurring the character of the OP? The very fact that he has bothered to ask for people's opinions is a sign of good intent and I can find no trace of the motivation to steal that you're claiming he has.

[HwAoRrDk]

He wants to own/steal it, cant you tell from how he phrased it?

FOSS is against their religion.

Who are you referring to? Me? How on earth did you arrive at the conclusion that I want to "own/steal" the software? When did I phrase anything that implies I want to do that? And who is this "they" against whose religion FOSS is against? Me again? Certainly not. I think you need to take that damn chip off your shoulder and stop making assumptions about people's motivations.

All I would like to do is ensure that the code is licensed in a way that will allow me to make changes to it, use it, and in case I think anybody else may find it useful, potentially redistribute that modified version (not for commercial gain, I might add). You know, just like any other open-source code. At present, the code's licensing state is unclear, so I'm refraining from doing any of that until such time as the situation is clarified.

[cdev]

I'm sorry, Ive just seen that happen too often at this point.  There is a well organized war on open source. there ar people who insist that its a bad thing.

IMHO they are a bad thing. FOSS is a bit like a freeing of the slaves, as such its a good thing and a positive development without which many of the world's biggest companies of today would not exist.

Subcontractors say that FOSS makes people too equal and makes it hard for them to make money as easily as they like..

Thy want to go back to the way things were.

[james_s]

Other than possibly a few software companies I haven't seen a major war on FOSS. It is alive and well, and growing all the time.