Copyright and Licensing: Nothing to fear but fear itself?

[Omnivore]

This subject arose once again in another thread http://forums.roguetemple.com/index.php?topic=4250.msg39076#msg39076.  It leads me to wonder, how many developers here are seriously concerned about this topic in their daily work?   

I believe there are two inter-related issues: one being the legality and financial repercussions; the other being the morality and social reputation repercussions. 

In regards to the first, I am of the opinion that we are 'below the radar', that is, we are very unlikely to be sued or subject to an injunction in the breach.  Even if we engaged in blatant copyright violation, the violation would need to come to the attention of the copyright holder, the copyright holder would have to have the financial means to attempt adjudicative remedies, and the perceived benefit to the copyright holder would need to be sufficient to offset the expense.

The second sub-issue, the morality and social reputation repercussions is, to me, the more important and relevant one.  Here though, we run up against the very definition of copyright and how that concept applies to computer software.  Is a port of a work from one language to another a copyright violation?  What if only the external interface is copied?  At what point does refactoring and customization no longer qualify as a copyright violation?  How can we tell the difference between a copyright violation and an original work addressing the same problem space? 

Lawyers and other legal experts aside, what do we as a community of software developers consider protected by copyright and licensing derived from copyright?

[Kevin Granade]

Algorithms and short snippets of code are not copyrightable.  This is the current state of jurisprudence in the United States.  See Oracle v. Google for a great example of this.  There WAS literal copying of code, and Oracle poured millions of dollars into their attack, but were unable to meet the bar for copyright infringement.

In order to be on the hook for copyright violation, you need to literally copy the code in question, and a significant amount of it.  Just having seen some code and then later writing code that does the same thing is not sufficient.  In high-risk undertakings, such as making a copy of a program without technically making a copy of it *wink* *wink*, corporations will undertake ridiculous measures like doing "clean room" implementations of software, but this is only something done as an exercise in corporate CYA when the company is skirting as close to the edge of the law as possible.

By the way, I agree that rogulike developers are so far under the radar that we're practically underground, but I also think there's no infringement to speak of happening either.

Concerning morality, there is no moral issue with copyright violation.  People have no moral right to say that others cannot make copies of something they have written and published.  The very concept flies in the face of how creative expression works.  Copyright is a concept invented by governments in order to protect monopoly-seeking industries.

[Aukustus]

I found a labyrinth algorithm that I really wanted to use in my game that was copyrighted as creative commons sharealike, so I contacted the Creative Commons about how can I use it with my game without making my game open source.

They replied that small algorithms probably won't count as "Work" that can be copyrighted such as music or something else. They also said that If I kept the algorithm as a separate source code file, which I did, it would be OK to use it without making my game open source.

Nothing is more annoying than seeing a perfect, most clean implementation of something and then copyrighted so it cannot be used.

[Bear]

Clean-room implementations are people doing corporate CYA, not against copyright, but against patents.  Algorithms and software designs can be patented, and that's a much broader (and much briefer, and much harder to obtain) kind of protection than copyright.  To get a patent you have to show that the thing you're patenting is both 'novel' meaning nobody did it before you, and 'non-obvious', meaning it probably wouldn't occur to anybody even if they were trying to solve the same problem, unless they got it from you.  In court, a patent can be revoked if the defendant shows either of these things to be false.

Algorithms and software designs are not subject to copyright.  That just isn't what copyright does.  A particular expression of an algorithm in a particular language is subject to copyright, and works derived from it in a really blatant way can get people in trouble; but really blatant is NEVER accidentally.  Worrying that you might *accidentally* produce something that qualifies as a derivative work is silly. 

IIRC there was a case involving 'Perligata' - which was a system for transforming Perl scripts into Latin-language text that could then be executed by its own script engine.  It was very silly, done as a joke, but somebody tried to use it to bypass copyright, claiming that the Latin "translation" of some copyrighted Perl software was not covered by the copyright, because it was in a different language than the fixed form which was copyrighted and there were standing precedents that in human-readable documents translations into another language are allowed. That didn't fly. He got smacked by the judge for a violation of copyright via a "derivative work."  Nobody had done the mental work of understanding and translating the code - it was a purely mechanical translation.  Therefore it was not meaningfully different from the copyrighted form.   There've been a couple others where people just changed a few variable names, but a finding that software is a derivative work subject to copyright is  rare, and I've never heard of one that wasn't some completely blatant mechanical transformation. 

[Omnivore]

Concerning morality, there is no moral issue with copyright violation.  People have no moral right to say that others cannot make copies of something they have written and published. 

I strongly disagree. 

Now perhaps the default license equivalent of published material should be public domain (relinquishment of copyright), but if an author expresses an intent in regards to copyright (a license), then either you respect that intent or you do not.  That is a moral choice.

Ignoring the right of the author to express an intent in regards to copyright is also a moral choice.

[Eben]

moved the conversation from http://forums.roguetemple.com/index.php?topic=4250.0

However, if looking at code and re-implementing it is effectively risk free (or incredibly small risk), then why use GPL at all? You're basically just being a dick and wasting peoples' time by re-implementing code rather than just letting them use yours.

When I put a license on code I publish, I'm making a statement of intent. 

To me, GPL says "Here's some code you can freely use in your own GPL'd stuff".   Now there is no way that I'm going to know if someone violates that and uses it in a closed source commercial product.. but the violator will know and perhaps someday be motivated to give back something to the community.

If I want to be a dick and waste people's time, forcing them to re-implement, I don't publish the code at all.

In the case where you have Some Other License, if you want to use excerpts, snippets, from my GPL'd code, I'm not going to object, though I'd appreciate a attribution and an email.  That is the kind of thing you need to negotiate with the author of the package.

However if you want to wrap my entire GPL'd package in your SOL'd program, effectively turning my code into SOL'd code instead of GPL'd, well.. you're SOL (Shit Outta Luck).  Other authors may feel differently on a case by case basis.

It sounds like your statement of intent is "Hey if you're not in my cool person club then you can't use my code unless you spend time reimplementing it."

I'm still not seeing any actual protection of anything that matters. Or there is protection and I wasn't previously being overly cautious.

GPL to me seems like the opposite of "open". It's viral and a pain to work with the various limitations on how to use it directly, but doesn't prevent re-use of the actual creative portions of coding. Or even enforce a reference to the original work in the re-implementation. In fact it's better not to reference the original since that opens up a more direct comparison.

Patents make sense (although they can be quite silly), but GPL seems terrible at all levels.

[Omnivore]

moved the conversation from http://forums.roguetemple.com/index.php?topic=4250.0

It sounds like your statement of intent is "Hey if you're not in my cool person club then you can't use my code unless you spend time reimplementing it."

I'm still not seeing any actual protection of anything that matters. Or there is protection and I wasn't previously being overly cautious.

GPL to me seems like the opposite of "open". It's viral and a pain to work with the various limitations on how to use it directly, but doesn't prevent re-use of the actual creative portions of coding. Or even enforce a reference to the original work in the re-implementation. In fact it's better not to reference the original since that opens up a more direct comparison.

Patents make sense (although they can be quite silly), but GPL seems terrible at all levels.

First, thanks for moving this over. 

As for the "cool person club" if that is my intent, who can say otherwise?  I have a right to express my intent, you have a right to dislike it.

There is no protection in any copyright based licensing for anyone not involved with a multi-million USD company.  The only thing you get is a moral "keep honest people honest" statement of intent.  In other words, even if there is some real protection under the law, I cannot afford to pursue remedies and you cannot afford to defend.  The best I could do as an offended party is to shout to the world "they broke my copyright licensing".  Unless the offender is a large well known company and the case has some legal interest, I doubt anyone would offer aid.

I get that you don't like GPL.  You are free and welcome to not use GPL.  Are you saying I should not have the choice to use it?  If my code has a GPL license and you don't want to abide by that license then you have three choices:

• Don't use it.
• Contact me and try to negotiate a compromise solution.
• Ignore it and violate copyright.

Software patents, in my opinion, are among the worst ideas to ever make their way into law.

Oh and please stop calling GPL viral.  It isn't. http://www.metastatic.org/text/the-gpl-is-not-viral.html.

[Bear]

It's sort of like wooden doors.  People sell locks for them. 

But what the heck good does a lock do, on a wooden door?  If you're an adult and reasonably athletic, you can go straight through a wooden door at full speed, or break the wooden doorjamb it's probably framed in. 

Locks for wooden doors serve as a notice to honest people that someone would rather you did not go in here.  Dishonest people, as it turns out, are the minority, so most people think of locks for wooden doors as being reasonably effective. 

In the same way, copyright law is reasonably effective.

[mushroom patch]

I'm amazed to see how unpopular the GPL seems to have gotten in the past ten years. It used to be that everyone was making the kind of argument Omnivore's making here (maybe my interweb reading habits were too close to the slashdot sphere of influence then, but that's how it seemed to me). Most open source projects seemed to be GPL'd. These days, most of the projects I come across seem to be BSD/MIT licensed. This could be a reflection of the kind of projects I'm interested in now vs. then, I'm not sure.

The comments made here about roguelike games being "under the radar" seem on point to me. If you want to write an open source roguelike, I see no compelling reason to use the GPL or other worse licenses (e.g. the GNU Affero license). No one's interested in "stealing" your code and the GPL limits the collaboration that open source is supposedly about. The GPL makes sense for the GNU project and basic UNIX infrastructure type stuff. I don't think it's proven to be a success elsewhere.

[Bear]

Honestly, the only really compelling reason for me to not use the GPL is because I want to retain control of game balance.  When stuff is GPL'd, that means someone else can use the code, add a bunch of overpowered stuff that breaks game balance, and pass the result off as a "new version" of the same game.

Therefore I prefer artistic license; somebody can use the code, add a bunch of overpowered stuff that breaks game balance, and release the result as  a *DIFFERENT* program.  IOW, I want to retain control of my own game - not have somebody else take over and pass off their thing as the next version of what I create. 

That said, I have absolutely no problem with the existence of GPL software, nor with releasing other stuff under GPL.  It's just that the stuff I release under GPL is "utility" rather than "art."  I don't value my continuing control of utility programs nearly so much, and I'm not at all upset about the prospect of other people eventually taking ownership of them. 

That said, even though the Artistic License does impose the restriction I care about for the game, and GPL does not, in most ways AL imposes even less restrictions on further use of code than GPL does.  For example if you want to wrap the AL code up in a free or commercial product and never license any changes you make to it under any reasonable terms, that's okay with me.  I still have control of what I wrote, and that's what I care about.

[Kevin Granade]

Concerning morality, there is no moral issue with copyright violation.  People have no moral right to say that others cannot make copies of something they have written and published. 

if an author expresses an intent in regards to copyright (a license), then either you respect that intent or you do not.  That is a moral choice.

There's a gigantic difference between respecting someone's request to do something and that something being a moral right.  Your argument applied uniformly means it is immoral to refuse a request, ever. 

<too much stuff for me to manage quoting on my phone>

The GPL is not intended to be 'as open as possible'.  It was designed to adress a specific problem, which was/is countering the threat of proprietization of the entire computing ecosystem by creating a free alternative.  Releasing software under the GPL is more about extending that free ecosystem than each piece of software being 'as free as possible'.  If you don't want to participate in enhancing that ecosystem, why should you have free access to appropriate parts of it for your own use?

[Omnivore]

If you want to write an open source roguelike, I see no compelling reason to use the GPL or other worse licenses (e.g. the GNU Affero license). No one's interested in "stealing" your code and the GPL limits the collaboration that open source is supposedly about. The GPL makes sense for the GNU project and basic UNIX infrastructure type stuff. I don't think it's proven to be a success elsewhere.

http://en.wikipedia.org/wiki/List_of_open-source_video_games  Note the number of GPL entries in that list.

One advantage of GPL is that its pretty inclusive with regards to other licensing.  Most open source licenses are less restrictive, so including them in a project using the more restrictive GPL doesn't cause any problems.  At worst, you might have to include other license.txt files covering subsets of 3rd party source, but there's no bar to using them.

I think the decline of GPL and other open source licensing is a quantitative not a qualitative decline.  Today everyone and their siblings are writing and publishing games,  far too many have no clue about the real value of their source code (generally worthless except as an educational device), and a greatly exaggerated optimism about how much money they're going to make.

Prior to 1994 all popular rogue-likes were open source.  Up until the past few years, open source rogue-likes were still in the majority by a large margin.  Lately though there has been a flood of commercialized rogue-likes that are, of course, closed source.  Hopefully it is just a temporary trend due to the general global economy and when better times come again, greed will take a back seat to shared education. 

While I may sound like I'm a proponent of GPL and open source in general, for my own work I'm presently sitting on the fence.  Given the increasing number of closed source and commercialized offerings along with a more and more vocal subset claiming anything published is free for the taking regardless of the author's desires, I'm tempted to toss in the towel and go closed source myself.

[mushroom patch]

Regarding open source roguelike games, it's not true that prior to 1994 all popular roguelikes were open source. There was a time when moria (or maybe I'm thinking of rogue) was publicly available, but not as source. It is true that all the popular roguelikes prior to 1994 eventually became open source.

I think the concern that kept at least one game temporarily closed source was that the mysteries of the game would be revealed by the source. Nethack really has no secrets, in spite of its complexity. Similarly re: DCSS. It is entirely possible that something radical and new could be learned by players about ADOM tomorrow, though.

In short, I think it's a great idea to publish libraries for putting together roguelikes under the BSD license, the LGPL, Artistic License, etc., but I think authors should feel free to keep their source closed, whether for commercial reasons or otherwise.

[Eben]

I get that you don't like GPL.  You are free and welcome to not use GPL.  Are you saying I should not have the choice to use it?  If my code has a GPL license and you don't want to abide by that license then you have three choices:

• Don't use it.
• Contact me and try to negotiate a compromise solution.
• Ignore it and violate copyright.

Software patents, in my opinion, are among the worst ideas to ever make their way into law.

Oh and please stop calling GPL viral.  It isn't. http://www.metastatic.org/text/the-gpl-is-not-viral.html.

I'm saying you probably shouldn't use GPL because, as far as I can tell, it has no positive benefits for either the code creator or the code user.

Your options 1 and 3 are where I started at. I said I didn't want to look at GPL source code because I didn't want to risk the appearance (or actual act) of violation of copyright. But the response to me saying I wanted to play nice with GPL code (meaning not looking at it if I wasn't making my potential derivative work GPL) was considered by many to be too much paranoia on my part.

Option 2 seems a bit silly if I haven't looked at your code yet since there's no telling if there's anything worth going to that trouble in there. And it's also silly if I have looked at your code and can (and want to) reimplement it.

I mean GPL is viral in the sense that if you mesh any GPL code with your code, you are required to make your meshed code GPL. The viral part is that, from what I can tell, this includes other code in the same library project that have nothing to do with the GPL bit. Either the whole library is suddenly GPL or you can't use the GPL code. I read the link, but "viral" now includes the meaning "something that spreads", as in Viral Marketing.

Honestly, the only really compelling reason for me to not use the GPL is because I want to retain control of game balance.  When stuff is GPL'd, that means someone else can use the code, add a bunch of overpowered stuff that breaks game balance, and pass the result off as a "new version" of the same game.

Therefore I prefer artistic license; somebody can use the code, add a bunch of overpowered stuff that breaks game balance, and release the result as  a *DIFFERENT* program.  IOW, I want to retain control of my own game - not have somebody else take over and pass off their thing as the next version of what I create. 

Because re-implementation is apparently pretty much okay (in fact if not in spirit), copyrighting the IP in your game is probably the only way to keep someone from releasing a thing as a new version of your game, and that should be compatible with pretty much any license. Of course that doesn't stop them from cloning your game

[Kevin Granade]

Honestly, the only really compelling reason for me to not use the GPL is because I want to retain control of game balance.  When stuff is GPL'd, that means someone else can use the code, add a bunch of overpowered stuff that breaks game balance, and pass the result off as a "new version" of the same game.

Have you considered registering the name of your game and perhaps some amount of branding as trademarks?  That's specifically what trademarks are for.
Regardless of your license, you can trademark the name, and others will be prohibited from calling their derivatives by the same name.  From what I understand of the process, it's pretty painless to do.

I'm saying you probably shouldn't use GPL because, as far as I can tell, it has no positive benefits for either the code creator or the code user.

It's a rather odd stance to take to tell someone else that they shouldn't do something because you don't see the benefit.  It's almost certain they have a reason to do it and you just don't understand or agree with their motives.

Your options 1 and 3 are where I started at. I said I didn't want to look at GPL source code because I didn't want to risk the appearance (or actual act) of violation of copyright. But the response to me saying I wanted to play nice with GPL code (meaning not looking at it if I wasn't making my potential derivative work GPL) was considered by many to be too much paranoia on my part.

That's because it is, copyright simply doesn't work like that.  The rest of your argument is built on this flaw, therefore moot.

Of course that doesn't stop them from cloning your game

What's wrong with a clone?  Not a rhetorical question, I simply don't understand why someone making a copy of your game is a problem.