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Comment by Luc | Hacker News Reader

It seems to me Tarantino's case is not _obviously_ without merit, unless you reject the idea of copyright altogether.

If you rejected the idea of copyright don't you therefore also reject the idea of open source licenses (aren't all software licenses based on the idea of copyright)?

Civil Law systems (e.g. much of continental Europe) make no distinction between licences and contracts, so the licences would still be enforceable under contract law in the absence of copyright law. This of course leaves the glaring exceptions of Common Law systems, such as the US, UK, India and Australia. IANAL, so I have no idea if it would be feasible to rewrite e.g. the GPL to work under Common Law contract law.

IANAL either (although married to one!) - what about the matter of consideration as a requirement for a contract in some jurisdictions (although apparently not my native Scotland).

i.e. Might there not be a requirement to pay a nominal fee to enter into a contract-based "license" in some places? Which would seem odd.... :-)

  It can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. [1]

Sounds like the things GPL (etc) prohibit/promise themselves might count.

[1]: http://en.wikipedia.org/wiki/Consideration

Under US law, consideration has long been a specter haunting the enforceability of open source licenses--specifically enforcement by the user against the copyright holder.

Here's the problem: If the copyright holder gains nothing in the transaction that the license governs, then the license is not an enforceable contract. Thus, the user cannot enforce the terms of the license against the copyright holder. The copyright holder could, for example, revoke the license at any time and demand everyone stop using the open source software.

I've always wondered: Could an open source license create consideration by referring to the copyright holder's business or career interest in the software enjoying widespread use and acclaim? As a software developer, I could stand to gain financially from the success of my open source project. For example, I could leverage my notoriety into a well-compensated position. Or I could hire myself out as a consultant to users of the open source software. Or I could start a business, and piggyback off the prominence of the open source software to promote my business.

There are also theories whereby promissory estoppel would protect users against copyright holders. I won't comment on these theories except to say that they're pretty much untested.

This area of law is mostly unsettled. There's far too little case law for anyone to make a definitive pronouncement yet.

Yes, but the only reason you need a license is because copyright law prevents you from copying the work without one. Without copyright, you don't need to subscribe to any license or contract to copy and redistribute the work.

I reject copyright because I believe users should be able to modify their software and redistribute their improvements. Open source licenses are a tool I employ to give more users that right, not an end in themselves.

Software and a film script are a bit different though. If source becomes available, anyone can compile and use it. I'm not sure it's fair to the developer if he wrote that code with the intention of selling it and now it's available for free, but at least it's still available. Producing a movie, on the other hand, is well outside of most people's financial capability, and this leak might prevent people who would be capable of turning the script into a film from doing so.

I think even small groups of people with limited resources will find interesting, creative things to with a well-written film script. And as equipment becomes cheaper this will become much more so - compare with how much more effective the home music studio has become over the last few years.

Open source licenses are a form of copyright.

Why is copyright bad? Because it makes it harder for people to improve their stuff and share those improvements, or write new works based on existing works.

Why are open source licenses good? Because they make it easier for people to improve their stuff and share those improvements, or write new works based on existing works.

Also you can think of it just the opposite:

Copyright incentivizes many authors to undertake works they normally might not due to the protections copyright provides. Many authors (who freely publish their books under copyright) probably wouldn't be able to spend 3 years researching and writing a book if they weren't able to get advance money from their publisher.

One is free to use a liberal license or a more restrictive license, both are out there and available to creators.

I'm still not sure what the legal rationale is for treating link publication as copyright violation. When you publish a link, you are not copying anything, the person following the link is.

By analogy, a person who told people that Tarantino's script was under a box behind a grocery store would be violating copyright.

First encouraging the copyright infringement, then profiting from it, does not speak in Gawker's favour.

In my (European) country a kid was convicted and fined for copyright infringement for maintaining a list of links to pirated movies. It all depends on details and interpretations, and the analogy and logic you provide may not apply in a court of law.

I think the biggest deal is the profit aspect of the situation. If there was a person earning money for every person that he tells where Tarantino's script (in some fashion analogous to Gawker's add revenue from site hits) is your analogy sounds a lot worse. Publishing that link wasn't any kind of public service, they were using Tarantino's unreleased work to make a profit and he has grounds to sue for that.

But is it illegal, or is this simply a civil thing?

As the law stands it looks like it is illegal (http://www.copyright.gov/title17/92chap5.html section 3 subsection D [or search for link]). It looks like the linker is only protected if they don't have knowledge that the link is infringement and doesn't receive any financial benefit from the action.

There is a fine line. The argument often goes that linking for informations sake is fine.

However, the whole post is written in a fashion that shows how proud Gawker is of their scoop and that they can show the script. This would mean that the encourage others to follow and download it, which is - without question - copyright infringement. An argument can be made that encouraging people to follow a link that _you definitely know_ is infringing copyright is illegal.

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