Hacker News Reader

Comment by Mikeb85 | Hacker News Reader

If their code is proprietary, no one can use it. Even if they accidentally uploaded it to a public site.

I know that, but is the issue that companies are using the code or that NPM, Cloudflare, and Amazon are hosting the repo?

> If their code is proprietary, no one can use it. Even if they accidentally uploaded it to a public site.

Surely this depends on the terms under which they uploaded it. I would expect npm to have a legal structure in place under which code you upload for public use is also licensed for public use.

> I would expect npm to have a legal structure in place under which code you upload for public use is also licensed for public use.

Not how it works. For example, see the license field here:

https://www.npmjs.com/package/unlicensed

That would be the "terms under which they uploaded it"

NPM doesn't appear to have a "default license" though, so that would be "no license", therefore normal copyright law would seem to apply, and you can't make a copy of it, and more than you can copy a picture on a billboard or a blog post or whatever.

IANAL but if someone makes code publicly available (for 3 years). Then isn't there an argument to be made that its reasonable to make use of it? Probably not redistribute it, but use it at least. So I'm not even sure an explicit upload license would be required.

You seem to be arguing for an implied license; such things do exist—but the exact scope is often not obvious even to lawyers in the absence of case law covering very similar situations as to the kind of content and the use to be made of it.

My understanding is that it was based on custom/ industry norms. But yes a lot of lawyering would probably be involved.

If you leave your keys in your car for 3 years it's still illegal for me to take a joy ride in it. I don't personally believe in/support the concept of IP but in a world that does (like the US) it doesn't make sense to me that people being able to see your property for 3 years gives them the right to use it.

If you leave you car keys at my house for 3 years does the change the answer? With the car parked on my drive?

I'm not sure a car is the best comparison though.

How about a restaurant putting mint imperials by the cash register. Is it legal for patrons to take one?

Property rights don’t go away because someone made it easy for you to violate them.

Mints are put out explicitly for you to take. Property right intentionally transferred.

Actually, in the US "Abandoned Vehicle" is a legal thing and depending on local laws you might very well be able to claim, and get title to a vehicle that has been abandoned on your property. And the abandonment period can be really short, 48 hrs in some states. It depends on your state's definition of "abandoned vehicle", and local laws, and it will probably require a few trips to the DMV and might require filing in small claims court, but there is a legal process for gaining ownership of a vehicle that has been left on your property.

Same for any lost property, if you find something valuable (wallet full of cash), you generally have to turn it in to the police, and there is a notification process to try to find the owner, and after a period of time (generally 3 months), if no one has claimed it, it's yours. Again, local laws are going to differ, but the general legal concept, that "A finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property."[1] is common.

There's some old saying about possession being 9/10ths of the law....

[1] https://en.wikipedia.org/wiki/Lost,_mislaid,_and_abandoned_p...

It's older than that, it's a Roman legal principle, usucapio: https://en.wikipedia.org/wiki/Usucapio

Your missing the point. How is the transfer communicated? Common law traditions and statutes.

I have never ever seen a sign next to the mints saying they a free for patrons. I just assume because that's the done thing, I would make the same presumption about the software package.

Of someone leaves a car on my drive I can do something about it, you may not be able to do in your territory. I'm surprised there isn't the a legal concept of abandonment though, what do you do if someone drops an empty can on your land?

With physical property, there is the concept of Squatter's Rights. With copyright, if you fail to protect it adequately (which I don't think is very well defined by the court system), then the IP in question can pass into the public domain.

I'm not sure what all rights (physical or otherwise) might be applicable here.

> With copyright, if you fail to protect it adequately (which I don't think is very well defined by the court system), then the IP in question can pass into the public domain.

This is not true. Not even remotely true. It is routine that a company notices someone using their copyrights after decades and then sues about it. Oracle is suing Google over code that was "unprotected" for a decade before they decided to sue. In Australia (I know, different country, but this is the same), Men at Work were successfully sued 29 years after they released "Land Downunder" because it has a two bar riff with similarity to a song written in 1928 [1].

As a side note, I see this all the time. What is it about this particular topic that people seem to (a) consistently confuse these things but more importantly (b) feel confident enough about ti to repeat the confused viewpoint with certainty to others?

You are probably thinking of trademarks.

[1] https://en.wikipedia.org/wiki/Down_Under_(song)

Are you maybe thinking of trademark? If you fail to protect a trademark then you can lose it.

AFAIK, you can selectively (or not at all) enforce copyright all you want and then change your mind later.

Dragonwriters answer was what I was thinking.

Are you thinking trademark rather that copyright? I'm not sure you can fail to adequately protect a copyright in that sense.

You can't, as seen in the case of orphan works, which are often lost because the author is unknown, so nobody can use them.

Has it been tested in court? :)

Yes, of course.

What if the public site states in their terms that they must be granted those rights on the uploaded material, and the actual copyright holder is the one who does the uploading (but accidentally)?

Absolutely not true. Anyone that lives in a country whose legal system does not respect their copyright can use it.

Basically every country has signed a treaty saying their legal system does respect them: https://en.wikipedia.org/wiki/List_of_parties_to_internation...

If you're saying any country where they don't respect it in practice, then sure.

And if it's protected as a "trade secret" and not a copyright (or patent) then you probably can use it without question.

Software is copyrighted "by default". You don't need to apply for copyright like you would need to do with a patent.

https://www.uspto.gov/patents-getting-started/international-...

USPTO explanation of difference between a Patent, Copyright, and Trade Secret.

The software could contain a trade secret, and someone could discover it from reading the source (e.g. the banks magic evaluation function for credit ratings, or their trading strategy, or ...). That doesn't grant them any protected right on the software, which is protected by copyright.

I’m not sure how universally true that is.

When governments fail to redact documents, it’s on them.

If you “accidentally” talk to a reporter about your solicitor-privileged comms, it’s not privileged anymore.

This isn't an open question.

If you don't have a license from the copyright holder, you can't legally use it, except for fair use exemptions: perhaps you could write a blog post criticizing it.

Was there a licence attached to the files? What if there wasn’t

> If you don't have a license from the copyright holder, you can't legally use it, except for fair use exemptions: perhaps you could write a blog post criticizing it.

To be clear, do the files contains a copyright or licence, if they do not and many companies don’t attach a copyright header to their files. Why would the assumption be that the files are not public domain or free for use

Because unless otherwise stated, they just aren't.

Theres nuance though, that copypasting a previous comment doesn't answer.

What about public domain works for example? Or you had a good faith belief you had permission from the copyright holder, eg someone misrepresented themselves as the copyright holder, or the copyright holder published the code in public without a copyright notice?

Public domain: any software made to run on current machines is too new to have expired copyright; the author(s) may have dedicated it to the PD, but you have to find that dedication, which is equivalent to a license.

Good faith: that may affect the amount of damages the copyright holder can extract, but it's still illegal to use the software.

My underlying point though was that it was an unreasonable answer, to just copy paste the previous answer. No one here that I've seen has claimed to be a lawyer, and no one I've seen has defined what nations laws we are talking about. At that level of discourse, the question posed, deserved a reasonable answer.

> Copyright older than 30 years still requires the notice

Nope, only on works published over 30 years ago. This package was published only three years ago, regardless of when it was created.

There really isn't much nuance under the copyright rules almost universally agreed under treaties like Berne, UCC and TRIPS. This kind of what-ifing a clear statement just sounds like a bad movie trope.

We don't know when it was first published though. If its Cobol code, with dates from the 70s in the comments, that's different to if being JavaScript or some such.

And if you get enough money and lawyers in one place you can create plenty of nuance.

Dragonwriter reminded me of the term, implied licence in another subthread. That clearly seems arguable in this case even if it isn't considered winnable. Case law progresses through winning 'unwinnable' cases.

I think we're approaching this from completely different positions though. I appreciate the what-ifing, exploring the hypotheticals. It isn't as if we have any power to make a difference in a court of law, and I would hope no one is relying on this thread for legal advice.

I have good faith belief that all software on torrent trackers are in public domain or had permission from the copyright holder.

As you see, it doesn't change anything: I will be downvoted, then sued, then jailed despite my beliefs.

That isn't demonstrating a good faith belief.

Buying a Rolex from some guy in a car park is different to buying one from a jewelers. The former wouldn't protect you in any way, the later would let you demonstrate a good faith belief that it wasn't stolen, and wasn't fake.

This is a tangent but there's nothing wrong with buying a fake. So you can have a good faith belief that it was a counterfeit, which can protect you somewhat in the case that it was stolen.

In the copyright example you're probably right.

More generally, say if wanted consumer protections consistent with it being a Rolex, or if you wanted to sell it as a Rolex. Then whether you bought it as a fake does matter.

We're talking about code. Which is more like a recipe than a novel.

If Coca Cola writes down its proprietary recipe on their entrance "by mistake", I can definitely make use of it. Maybe I can't photocopy it for sale, but I can definitely re-use their previously-secret techniques.

I can even say I got it from them through their own error and have the exact same outputs for the exact same inputs.

Trade secrets aren't your secret anymore once you publish them.

All we know in this case is that copyright law was used as a tool to remove it.

> Which is more like a recipe than a novel.

Courts strongly disagree with you.

Do they?

If you reverse engineer a system and write a spec using clean-room technique, it's going to be massively easier for the team to do it if they have lawful access to the no-longer proprietary source code.

And wouldn't that be the method to re-create your own copyrightable implementation of GPL code too?

Thats only true for the US and the countries adhering to US copyright. It's not universally true

It's not "US copyright", it's several international copyright treaties, which 90% of all nations have agreed to: https://en.m.wikipedia.org/wiki/Berne_Convention

The few exceptions are where copyright essentially doesn't exist at all. Where it does, this is how it works.

As someone above posted the wider "List of parties to international copyright agreements", this is one of the boxes that need to be ticked prior to signing any form of deal between countries. It's a kind of 'fundamental' in order to start doing business with that country (or for the country to be taken seriously).

DPRK only recognises foreign copyrights, and have no concept of IP for its own works (because everything is done to superior order, there is no creativity allowed). Micronesia does not have copyright, but has even stricter regime of creative works, amounting to a patent-like protection.

Reply on news.ycombinator.com