Any updates on the license problem?

[BillO]

I think we are forgetting that Lee had no right to the MS code in the first place. He was never on any egal footing to copyright or license the code to the completed EhBASIC. What he should have done was supply his original code separately and copyright and license that along with instructions on how to patch the MS code.

Think of it this way, if I was to take the Beetles 1965 hit "Michelle" without permission, and dub some trombone obligatos over it, I would have no legal right to copyright the result.

Or, if I took the novel "Ringworld" and added few bits here and there while changing the odd passage, I would have no right to publish the result and claim copyright without Larry Niven's permission (which he would never give).

MS owned the only legal copyright and now that they have put the code in the public domain, EhBAsic comes along with it. You can legally do what you like with it under the terms of the MS release.

[BigDumbDinosaur]

BillO wrote:

I think we are forgetting that Lee had no right to the MS code in the first place.

There’s that, but it could also be argued that Lee’s work was derivative.  Furthermore, Microsoft’s copyright covered their BASIC interpreter, not the language itself.  Dartmouth College owns the BASIC copyright, but from what I recall, never licensed it to anyone.  At worst, Lee was guilty of reinventing a certain type of wheel produced by Microsoft, who used the inventors’ (Dartmouth’s) blueprints.

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Think of it this way, if I was to take the Beetles 1965 hit "Michelle" without permission, and dub some trombone obligatos over it, I would have no legal right to copyright the result.

As long as it’s done with a trombone, you would be forgiven.  On the other hand, if you had overdubbed Kenny G’s soprano sax, I would have to report you. 

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MS owned the only legal copyright and now that they have put the code in the public domain, EhBAsic comes along with it. You can legally do what you like with it under the terms of the MS release.

With the source code now being available, a cleaner rendition that works with the 65C02 and/or the 65C816 in native mode could be derived.  First step would be to increase floats from 40 bits to 64 bits to get more significant digits.

[BigEd]

I think the remaining difficulty is that Lee had copyright in his own code, and that had its own license, which only he (or his estate) can change.

Not that it matters practically, but legally it shows what can happen if someone decides not to be too careful about copyright, or has a mistaken understanding of how it works.

What one could do is separate out all of Lee's changes, study their effects, and have them reimplemented as fresh work (not as derived code.) Those new bits could be licensed in a way compatible with Microsoft's release, ideally using exactly the same license.

The thing to bear in mind is that a joint work has more than one copyright holder.

[cjs]

IANAL, of course, but here's my understanding of the situation.

BillO wrote:

I think we are forgetting that Lee had no right to the MS code in the first place. He was never on any egal footing to copyright or license the code to the completed EhBASIC.

This is correct; if he distributes MS-BASIC with his changes, MS, as the copyright owner of some what what he's distributing, can sue him to stop distribution and perhaps pay damages.

BUT, the copyright on his changes is not owned by MS; it is owned by him (or now his estate, or whomever the estate passed that to). So you you still cannot distribute EHBASIC without risking the owner suing you to stop distribution and possibly for damages. And there will be two things going on in that suit: the first being distributing the MS-BASIC code, and the second being creating a derivative work of MS-BASIC.

(And also, good luck finding the current owner of that copyright.)

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What he should have done was supply his original code separately and copyright and license that along with instructions on how to patch the MS code.

That helps, but not as much as you think, since anybody who applies that patch is creating a derivative version of MS-BASIC and, unless they have a license that lets them do that, by merely applying the patch they are violating Microsoft's copyright and can be sued for that. Even if that derivative version is only for their own personal use.

The bright side of all of the above is that in the U.S., and in most countries, copyright is a civil matter and so the only party that has standing to bring a claim is the copyright owner. But note that there are countries in the world where this is not true. For example, in Japan copyright violation is a criminal, not a civil, offense, and so the public prosecutor can prosecute you regardless of how the copyright owner feels about that, and this can even result in prison time. (And this has actually happened.)

And it's also very unlikely that a copyright owner will be able to get much, if anything, in the way of damages for things like this if you're willing to defend yourself with sufficient vigour. But that doesn't mean it's not going to cost you: you still have to pay for the lawyers.

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MS owned the only legal copyright and now that they have put the code in the public domain....

No, the code is not in the public domain: it's still protected by copyright, and MS owns that copyright. You simply can use it fairly freely because they've licensed it to you.

[BigEd]

> That helps, but not as much as you think, since anybody who applies that patch is creating a derivative version of MS-BASIC and, unless they have a license that lets them do that, by merely applying the patch they are violating Microsoft's copyright and can be sued for that. Even if that derivative version is only for their own personal use.


I would say not. The offence is in the distribution, not in the creation.

[BigDumbDinosaur]

cjs wrote:

I...in the U.S., and in most countries, copyright is a civil matter...in Japan copyright violation is a criminal...offense, and so the public prosecutor can prosecute you...can even result in prison time. (And this has actually happened.)

Yep!  To wit:

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...53-year-old man, Shinobu Yoshida, was sentenced to two years in prison and assessed a 1 million yen fine...

The fine is bad enough, but a two-year prison sentence...    (Japanese incarceration has been condemned for human rights violations—it is incredibly harsh.)  On the other hand, that would be quite a deterrent to copyright infringement.  Evidently, Yoshida’s conviction was the first time anyone in Japan was criminally prosecuted for a copyright violation.

Incidentally, 17 U.S.C. § 506 does provide for prosecution of copyright infringement, so it could be treated as a criminal matter.  I don’t know if any such cases have been adjudicated.

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MS owned the only legal copyright and now that they have put the code in the public domain....

No, the code is not in the public domain: it's still protected by copyright, and MS owns that copyright. You simply can use it fairly freely because they've licensed it to you.

The fact of the matter is, at least in the USA, moving a formerly copyrighted work into the public domain is all but impossible.  It used to be that copyrights would completely lapse and a work would then enter the public domain, but that hasn’t been the case for a number of years.

A copyright exists in perpetuity, but the ability to enforce it ceases according to rules defined in 17 U.S.C. § 302.  A copyright can, in theory, be endlessly renewed as long as the copyright holder, their family, or their agent exist(s) and is/are willing to file a renewal application with the Copyright Office.  Copyright law, however, is a complex subject and whether a copyright is still eligible for enforcement is something that may have to be settled in court.

In this case, Microsoft’s authority to enforce their copyright remains, despite their release of the source code and the nature of its licensing.

[cjs]

BigDumbDinosaur wrote:

Incidentally, 17 U.S.C. § 506 does provide for prosecution of copyright infringement, so it could be treated as a criminal matter.  I don’t know if any such cases have been adjudicated.

Interesting! Though at least that section has enough restrictions that a prosecution is unlikely to prevail for, e.g., distributing old BIOS ROMs or even games that are no longer commercially available in any form (i.e., those that you can't buy even to play on a modern emulated system or whatever).

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The fact of the matter is, at least in the USA, moving a formerly copyrighted work into the public domain is all but impossible.  It used to be that copyrights would completely lapse and a work would then enter the public domain, but that hasn’t been the case for a number of years.

A copyright exists in perpetuity, but the ability to enforce it ceases according to rules defined in 17 U.S.C. § 302.

Really? Is that your interpretation of §302(a), "Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death," or does that come from elsewhere? IANAL, of course, so I could be reading it wrong, but "endures for a term" seems to me pretty clearly to indicate that the copyright no longer exists after that term.

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A copyright can, in theory, be endlessly renewed as long as the copyright holder, their family, or their agent exist(s) and is/are willing to file a renewal application with the Copyright Office.

This also strikes me as not quite right. As far as I was aware, renewals stopped being a thing after after the Copyright Act of 1976 was introduced. Where would one go to renew now, and how does this work when there's no original application for copyright?

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In this case, Microsoft’s authority to enforce their copyright remains, despite their release of the source code and the nature of its licensing.  So, in theory, if one uses the source code to create a distributable version of MS BASIC 2.0 and puts it up for sale on eBay, Microsoft can take said individual to court for infringement.

Well, in the sense that anybody can take anyone to court for no reason at all, sure. But their chances of prevailing in an infringement case are about nil, given that the alleged infringer can point to a written license that clearly and explicitly allows them to to create a "distributable" (whatever that means) version of MS BASIC 2.0 and put it up for sale on eBay, or do pretty much anything else with the code. The only thing they could ever get any traction on would be someone violating the single condition in the license, "The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software," and even there my guess would be that the worst case would be that the infringer has to stop distributing or add those notices, since MS is going to have a tough time showing that they lost money due to the lack of those notices on fifty year old software.

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...BASIC 2.0 isn’t really commercially viable anymore, as anyone possessing the source code could build it at no charge.

I am feeling from this statement as if perhaps you thought that this BASIC was under GPL and by "distributable version" above you meant "a object code version built from modified source, without that modified source included," in which case your statement would make sense for GPL'd software, though commercial viability is not factor there.

[cjs]

Oh, and speaking of 17 U.S. Code § 302, that site I was reading it on has some interesting stuff in the "Notes" tab on that page. In particular:

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3. Although limitations on the term of copyright are obviously necessary, too short a term harms the author without giving any substantial benefit to the public. The public frequently pays the same for works in the public domain as it does for copyrighted works, and the only result is a commercial windfall to certain users at the author’s expense.

So after adding a minimum of 22 years (going from 28 to 50 years, if the author dies in the year he wrote his work) to the term, less than 22 years later the world had changed to the point where the public can get works in the public domain for essentially free (by just downloading them from the Internet), but we're stuck with the much longer term anyway.

Good luck on ever getting that changed back, or even somewhat reduced, now, though, despite that the benefit that the public couldn't see in 1978 is now widely available, and the new terms are directly leading to the complete loss of works that were supposed to go into the public domain after the term expired (at least in the area of computer games and other DRM-protected works).

[6502inside]

BigDumbDinosaur wrote:

In this case, Microsoft’s authority to enforce their copyright remains, despite their release of the source code and the nature of its licensing.  So, in theory, if one uses the source code to create a distributable version of MS BASIC 2.0 and puts it up for sale on eBay, Microsoft can take said individual to court for infringement.  In practice, I’d be amazed if they did—BASIC 2.0 isn’t really commercially viable anymore, as anyone possessing the source code could build it at no charge.

Unless I misunderstand what you're referring to, the released source code is under the MIT License, which does not prohibit commercial usage and specifically allows sales.

[BigDumbDinosaur]

6502inside wrote:

Unless I misunderstand what you're referring to, the released source code is under the MIT License, which does not prohibit commercial usage and specifically allows sales.

Urp...you’re right.  I was thinking of something else when I wrote that.  That’s what I get for staying up past my bedtime. 

[BillO]

cjs wrote:

BUT, the copyright on his changes is not owned by MS; it is owned by him (or now his estate, or whomever the estate passed that to). So you you still cannot distribute EHBASIC without risking the owner suing you to stop distribution and possibly for damages. And there will be two things going on in that suit: the first being distributing the MS-BASIC code, and the second being creating a derivative work of MS-BASIC.

I'm going to have to disagree here. Alterations made illegally to a copyrighted work cannot be copyrighted because only the original copyright owner (MS in this case) can authorize the creation of derivative works, such as altered versions of their original work. Unauthorized alterations constitute copyright infringement, and the individual making these changes has no legal basis to claim ownership of the modified work. So, Lee and/or his estate have no copyright on EhBASIC and had no right to license it. Now that MS has licensed their code under the MIT license, anyone and every one is free to use EhBASIC under the terms of that license.

https://www.copyright.gov/help/faq/faq-fairuse.html


Section on interest:

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Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent. See Circular 14, Copyright Registration for Derivative Works and Compilations.

Here is a link to Circular 14. It's not that long and is clear and easy to understand: https://www.copyright.gov/circs/circ14.pdf

[BigEd]

Hmm, I would certainly say that if Lee created, say, a faster multiplication routine, that creation would have his copyright. Whether or not he embedded it in something else and whether or not he distributed the combined work.

If someone else then wanted to stitch Lee's work into another work, such as the freshly relicensed MS Basic, and distribute the combination, they would need to bear in mind his copyright. Similarly if they wanted to redistribute Lee's work on its own as a patch - it's not theirs to do that with. It have whatever license Lee put on his work.

[BillO]

BigEd wrote:

Hmm, I would certainly say that if Lee created, say, a faster multiplication routine, that creation would have his copyright. Whether or not he embedded it in something else and whether or not he distributed the combined work.

If someone else then wanted to stitch Lee's work into another work, such as the freshly relicensed MS Basic, and distribute the combination, they would need to bear in mind his copyright. Similarly if they wanted to redistribute Lee's work on its own as a patch - it's not theirs to do that with. It have whatever license Lee put on his work.

Yes, if and only if it was offered alone, or in a collections of such original routines, or if he was given permission by MS to create a derivative work. The law (at least in North America) is clear on this. He received no such permission and therefore has no claim on the derivative work (EhBASIC).

[BigEd]

He has claims on his contributions. In most cases, you can't create a copyrightable thing without at the same time getting the copyright on it.

[barnacle]

In the UK, copyright is automatic, but I have an idea you have to register it in the States.

Neil