Beware of moral rights loopholes
grex replied to my previous post:
Interestingly enough the Creative Commons people try to have licenses translated and valid in each of the countries. I really don’t know how this can (and if it will) cause problems some time in the future… Maybe the reason for this different strategies is because of the different origin of the main members of these communities (Stallman as a programmer and Lessig et al. as lawyers).
Taking a look at some of the international CC licenses, it seems careful work has been done in adapting the license to the local jurisdiction but I believe that just translating/localizing the license risks creating loop holes that didn’t exist in the original. Moral rights could be one. I see moral rights more as a potential loophole could could be used by the copyright holder to prevent some use of the software than a problem of protection.
Take Zynaddsubfx for instance. The author has licensed his program under the GPL but has an extra wish: “Please don’t use this program to make music that is against God and Jesus Christ. Realize that the only way to the Salvation is Jesus Christ. Please don’t lose this chance and don’t make others to lose it!”
What if somebody took Zynaddsubfx and turned it into a (GPL-licensed) program called Satanic Synthesizer that was designed to create death metal type of music? Would this be a breach of the original author’s moral rights? Could the author sue based on his moral rights, although there was no GPL infringement?
Lessig has admitted that “In many jurisdictions that protect moral rights, you can’t just automatically give away the moral right, without knowing something about how, or in what context, the work is to be used. For those jurisdictions then, a Creative Commons-like mechanism just wouldn’t work.” He goes on saying that CC wasn’t created for these jurisdictions.
With regard to Stallman vs. Lessig I think it is more about their ideological background. Lessig seems to be constitutionalist whose argument is based on the idea of individuals’ rights, freedom of speech etc. while Stallman is more a communitarianian/anarchist type for whom voluntary co-operation and non-hierarchical society are primary goals.
With my limited knowledge on legal things, I assume that if the author of Zynaddsubfx imposes a new restriction then it’s not free software anymore. I don’t know if a wish is a new restriction, but I guess not. Hence I don’t see a loophole there.
OTOH I don’t think it’s the ideological background that has made Stallmand and Lessig have different strategies regarding the localization of the licenses. I’m sure Stallman could use communitarian/anarchist arguments in the case of CC and Lessig more constitutionalist ones for the GPL. What I mean is that probably the point of view is different, but that actually the way the CC licenses and the free software licenses are written down make both views possible and even complemetary. We have another time the wish-strategy here: Stallman maybe wishes a different type of hierarchy in society but the actual facts (the licenses) do not impose that with the legal text of the licenses.
In any case, this is an interesting (and maybe never-ending) debate ;-)
If it is true that in some jurisdictions you cannot give planket licenses related to moral rights and we can see that GPL doesn’t actually say anything about them, there’s the danger that the Zynaddsubfx author might sue the author of the fictional Satanic Synthesizer if he thinks the changes made are “prejudicial to his honor or reputation” (Berne convention 6bis).
I noticed this been discussed before. For instance, this article discusses moral rights in German legislation and this claims that moral rights in software are limited to the right of being recognized as the author. According to this article, the moral rights issue will be taken into account in the version 3 of the GPL.