Licensing AGAIN [was: Sharing FontLab Plugin]

[Mark Wilcox]

Hi Kevin & Richard,

Thanks for engaging so positively with this discussion. Let me start by
saying that I'm very much on the side of LiveCode succeeding and want to
help not just complain from the sidelines.

Open source licensing FUD tends to make my blood boil a little, although
leaving that aside, I think this from Richard is absolutely the right
starting point:

> If your project's goal is to share source code the GPL-governed 
> Community Edition can be a good choice, and for any other goals the 
> proprietary license as we've always had is available as well.

I think where the current licensing interpretation goes wrong is that it
effectively creates two completely separate LiveCode communities, one
using the Community Edition which has to license everything under the
GPL and another using the commercial version which mostly cannot or will
not touch anything licensed under the GPL. Given the explicit move
towards an extensible architecture and widgets because LiveCode the
company cannot possibly cater to the needs of all users, and the
community needs to take the product forward in some directions, this
seems like a terrible outcome.

Unfortunately I can't make it to Edinburgh for the conference this year,
otherwise I'd love to take you up on that whiskey-fuelled debate. I have
some ideas for how to improve this but I don't want to use the list to
build support for anything that might not be workable for the company,
so I'll send them separately off-list.

I must just comment on the approach to the GPL licensing, which I see as
a classic example of the FUD approach that annoys me so much.

> A few comments on the statements below though. Firstly, the article Mark
> helpfully references is based on USA law. LiveCode is based in the UK.
> There isn¹t the same concept of ³fair use² over here, and various other
> aspects of copyright law are different. It would be hard to say that the
> statements in that article, if correct in the USA (and as I say they
> haven¹t been tested) would apply here.

The fact the copyright law is different all over the world and the right
jurisdiction for a copyright dispute is not always clear is another can
of worms entirely. However, most people discuss the GPL in terms of US
copyright law because that is largely what it was designed around. The
US has one of the broadest copyright protections in the world, almost
any copying at all is potentially copyright infringement and fair use is
then similarly broadly defined in order to mitigate that. While it's
true that in the UK we have fair dealing, which is much narrower than US
fair use, the scope of what use is restricted in the first place is much
narrower. So, under UK fair dealing, the only infringing use of LiveCode
copyright that would likely be allowed is non-commercial research or
study. However, UK copyright infringement requires much more substantial
copying to take place and case law tends to focus on direct competition
in the marketplace for smaller amounts of copying - e.g. if someone's
app doesn't directly compete with LiveCode itself and only includes
small portions of the code, then it's probably not considered copyright
infringement at all. This is because copyright was never intended to
prevent people from taking someone else's work and building on it to
create new creative works. US copyright law got a bit lost here. From
this perspective it's good that LiveCode has so many users in the US,
where US copyright law could be applied. I believe German copyright law
is much more like US copyright law than UK law too. Within the EU, you
can bring a case in any country where the infringing software is
accessible I believe - that might be helpful pre-Brexit. :)

Simply saying, it's different and hard to say if the same would apply is
classic uncertainty and doubt sowing, when the people releasing the code
under a certain license should be trying to remove as much uncertainty
and doubt amongst users as possible. Particularly when the license
itself is as complex and controversial as the GPL.

> Secondly, LiveCode is very different from Wordpress. Stacks are executable
> binaries that incorporate aspects of the engine. That's even more the case
> now when they start to use and include widgets. There isn¹t a good
> comparison with other text based languages. I personally doubt our script
> only components are GPL, but as I¹ve said this hasn¹t been tested in court
> and its not up to me.

That LiveCode is different from WordPress is true. Also that a stackfile
is more likely to be derivative (or at least subject to copyleft) than a
WordPress plugin is also something I'd agree with - as you say -
particularly if it includes widgets.

However, what I don't like is the "it's not up to me" line. Although
interpretation of the law is ultimately down to a judge (or possibly
jury), that court test is pretty unlikely to happen. In the absence of
an official ruling, it's up to the copyright holder more than anyone
else. Only the copyright holder can enforce copyright, so they can also
be clear about what they consider acceptable use and what likely to be
infringement that they might choose to take legal action against. If
they don't do that in writing, then there's no cover for users in the
situation where someone else ends up owning the copyright in the future
(as Google now face with Sun having encouraged proliferation of Java
then been acquired by Oracle).

Like I say, I want to help and I understand that genuine legal advice in
this area is both expensive and extremely unlikely to be conclusive
anyway. I'll send some more constructive thoughts off-list as soon as I
get the time.

Mark