Re: A reminder about the facts

On Mon, 2 Jun 1997, Eric S. Raymond wrote:

> Date: Mon, 2 Jun 1997 20:10:31 -0400 (EDT)
> From: "Eric S. Raymond" <esr_at_snark.thyrsus.com>
> Reply-To: ncurses-list_at_netcom.com
> To: ncurses-list_at_netcom.com
> Subject: Re: A reminder about the facts
>
> Charles:
> > Eric, would you care if other people took over ncurses as long as they
> > changed the name? Then you can keep the 'original' ncurses and there would
> > simply be a split. You can find someone competent to take control of your
> > distribution....
>
> I don't need to keep ncurses if I can release it to a successor I
> trust. And I don't want there to be a split for reasons I've gone
> into.
>
> But I *will not* allow any derivative of my code to remain under
> Thomas Dickey's usurping authority, and that is final and not
> negotiable. He's still under threat of being sued or jailed for
> copyright violation under the Berne Convention if he tries, and I'm
> not kidding about that.

Now, now, I don't think that T. E. has done anything for which he could go to
jail. In the U.S., copyright infringement is only a felony if you mass produce
copies of something for commercial purposes. (I'm being glib here, but it's
clear that Thomas has not committed felony! He hasn't even made a cent).
Since this is a _published_ work that is _freely distributed_, I doubt that
any plaintiff in a civil case could claim any real damages other than a
wounded ego (I'm sure the lawyers can appraise the value of an ego very
favorably!).

Realistically, if this ever went to trial, Thomas could claim that what he
was doing was ``fair use'' and probably get away with it. Even though what he
is doing is not copying, there are numerous ``fair use'' exceptions to the
reproductive rights that could serve as analogies for exceptions to the other
rights (for example, you are allowed to make digital or analog copies of music
recordings for your own use). Thomas could claim that he made productive
modifications for the benefit of (and possibly the education of---that's a
good one) the user community. According to the copyright FAQ, factors that
may matter is whether the copying (in this case modifying) was productive or
not. What will also be considered is whether the work in question was
published or not (e.g. in the case of unauthorized copying, if the work in
question had not been published, it points toward infringement
more strongly than if the work has already been published).

Consider how different things would be if ncurses was commercial software that
had never been made available to any outsider in source form, and Thomas was a
rogue partner in the software organization who made off with the software on a
private venture.

The way it is, you might be able to get a court order instructing Thomas to
desist from making further ncurses releases. But I doubt that there would be
any jail time or $$$ involved.

Disclaimer: I don't know what I'm talking about. :)
Received on Tue Jun 03 1997 - 01:50:31 EDT