[oclug] Semi-[OT]: Source code ethical dilemma
sphex at sympatico.ca
Tue Sep 20 21:20:37 EDT 2005
OK, this is easier to work with.
One last time, talk to a real lawyer... and guard your reputation.
If there is no corporation lurking to pounce, probably the legal issues
are entirely theoretical, and this is merely a not-mere moral problem.
Remember, I don't believe he can own the code. Yes, he has strong moral
rights to be identified as its author or originator, but none whatsoever
to prevent others from using, modifying, etc. Whatever his rights are,
they are greatly reduced by his abandonment, whether due to misfortune
or to negligence, of this code and of the people who depend on it.
I recognize the crucial issue regarding GPL's use of the legal concept
ownership to prevent privatization, legal theft. But the GPL is an
interface with the law, and "prevent privatization" is another way of
saying "strong moral rights ... author ... none to prevent ...".
So, sue me.
If you believe he can own ideas, or even their expression in code, you
have in effect just painted your neighbour's house. He can refuse to
pay for your time and paint. He can demand you pay an expensive
contractor to restore the original finish. He can even demand you
replace the trampled tulips. Do not pass GO. Do not collect $200.
You have done significant work. Your efforts, your pride in the result,
and your legitimate right to your work, distracts you from the other
moral issues (for example, absolute ownership rights). This would be
easier for you, if you had decided to ask permission when you had
cracked the obfuscation, before coding changes. Or if you had written a
total replacement, which is not obviously a mere translation, and which
should preferrably be in a different language.
I agree you have legitimate rights to your work, and also to the
combined work. A lot of people (not all corporate lawyers) think his
original rights trump ALL your rights, regardless. Some even think his
rights extend to preventing others from writing any program similar at
all. Of course, many people think he has few rights.
When people challenge Chairman Bill's right to own software to this
gross extent, Bill hides his $billions and points at an unemployed,
parapelegic, Black, woman living in a bus-shelter with thirty babies.
When people point to her, he points to his sacred property rights.
When... well, we don't need to go around again. He does not have an
moral position, except gimme. He does not have a coherent argument,
only these red-herrings dragging around all over. (The US Marines, too,
but IP fanatics will do almost anything to avoid showing a naked gun.)
If you believe he has absolute ownership rights, give up, there is
nothing you can do.
If you believe there has to be a balance, you must choose (or negotiate)
the balance point which you are comfortable with, you must be sure that
it is a comfort of principle not of guilty convenience, and you must
defend it against hordes of people with knee-jerk slogans for brains.
I think you indicate that people have attempted to contact the owner,
and have obtained no response. Try again, for the record. Ask if
anyone has better connection. Try a few alternatives.
Ask him for GPL.
If he says yes, if he has lost interest, if he is enjoying nirvanic
bliss in Kashmere, start a FOSS project. Don't drown it in a flood of
instant changes : he will feel cheated.
If he says no, you need to decide whether he has absolute rights or not.
Then, if you decide not, you need to decide whether and how to deal
with the legal problems. Frankly, I would (legally) cheat : start a
FOSS project to build replacement functionality, in a different
language, create a history of progressive enhancements and corrections,
never expose his original code.
If you get no response, you choose a path between the two. For
diplomacy's sake, you write a history about how much the project is
needed, how much you appreciate the original program and its author, the
growing problems, the lack of response, the need to move on. Probably,
if you can disguise the origins, never show any part of the original
code. If you can't disguise it, be honest instead, but work towards
eliminating his code. In either case, use phrases like "does the same"
in preference to "is the same".
In short : keep an eye and one fork of your tongue on the law. Give
enthusiastic acknowledgement if possible. If not, either give in to his
rights, or reduce your legal profile.
Whatever you must tell other people, never fib to yourself.
Adrian Irving-Beer wrote:
> On Mon, Sep 19, 2005 at 01:13:11AM +0000, Greg wrote:
>>Unless there was an enforceable EULA which you haven't told
> None; this program was essentially freeware and was distributed on
> those terms. It was one of those "post a URL to a public forum for
> people to use" sorts of things. And forget fancy webpages; this was
> basically a link to each version of the executable. We're talking
> single person effort here, not Microsoft or IBM, or even a small
> development shop.
>>I think the obfuscation implies dishonesty.
> This is debatable. The obfuscation was a function of a standard third-
> party program used to convert the interpreted script, plus interpreter
> and supporting GUI modules, into a simple executable package.
> Obviously, the third-party executable-making program serves two
> purposes: Make your program easy to use by anyone, and make it hard to
> access the source. They primarily advertise the former. The latter
> is generally unstated and left to the user's imagination, probably
> because the security provided by the obfuscation is so laughable that
> advertising it would be a legal liability.
> Given the nature of the GPLed program it was supporting, and the
> average knowledge level of its intended audience, a self-contained
> executable is the most appropriate medium of distribution. The
> obfuscation was not necessarily a direct choice made by the author.
>>A paranoid would never have inserted those liberal terms in the
> To me, given the above, the terms seem to indicate he either expected
> to release the source at some point, or expected someone to retrieve
> the source from the executable.
>>The moral question is more interesting. We start with the ambiguity
>>of the liberal copyright concealed by trivial obfuscation. Then, it
>>is hard to say from here whether you hesitate to ask because you
>>suspect the legitimacy of the putative owner or because you distrust
>>his/her stability. (I certainly do not advise you to declare
>>which.. only to know which.)
> I still haven't said specifically what this is about, nor have I done
> the deed, nor do I know that the deed would be illegal. So I'll
> continue to explain the situation in general terms for discussion,
> without placing myself at risk unless I do choose to make the release.
> I am relatively certain of the legitimacy of the author. The coding
> style was identical throughout the program -- much to my original
> chagrin, as I didn't like it. The author responded to requests and
> announced features and versions available at the same URLs. The
> utility has such a specific audience that if he was going to rip it
> off someone else's work, we would have undoubtedly heard about that
> previous work. If we had not, said original work would have been a
> useless effort.
> My (moral) hesitation primarily stems simply from not knowing whether
> the author obfuscated because he was trying to be helpful to the users
> and simply overlooked the source release (perhaps would have sent it
> on demand), or because he did not intend to release the source (yet?).
>>Is this a nice guy/gal? nice abs? sweet disposition? worthy soul?
>>benevolent but bent? to whom you wish to be nice in return?
> Eh. I don't even know the person. All I know is he made this utility
> and released it to the community for free (albeit in binary-only
> form), then disappeared, leaving it maintainerless. My only
> judgements are thus "wanted to help (or gain attention)" and
> "presumably did not anticipate his own departure or the need for
> source code in the long run".
>>If Chairman Bill were claiming this code (and assuming importance,
>>critical mass, etc), there would be already a FOSS project. Perhaps
>>clean-room, perhaps not. Maybe people thought it was already?
> It's a <100k script with only a few thousand lines. We're not
> talking "GIMP killer" here. ;)
> My resulting implementation has actually reduced the total size by
> over 10% while increasing the lines and adding features, because the
> new code is substantially more modularised and streamlined.
> Thankfully, my implementation has also spread it out into multiple
> files. I can essentially guarantee personal ownership of those
> additional files and many of the subroutines in the original. If I
> need to do a remake, I already have a large personally-owned base to
> work with.
> But to me, severing all ties with the old program actually feels
> *less* ethical than using it, because I've now used his program a
> workhorse and a basis and an inspiration, and just replaced a few bits
> to avoid having to follow the terms or give copyright notice.
> (Obviously, I would still give credit to it along those lines.)
More information about the OCLUG