Software Pluralism

Software Pluralism

Moral Rights and OSS

Abstract

Moral Rights, an author's rights related to his or her personality imbued in the work he or she creates, are largely restricted in the United States to specific works of art by artists. While the concepts inherent in moral rights, such as integrity of the work and authorial attribution, can be logically extrapolated to any creation (such as a dance, a poem, a painting or source code, for example) by any kind of author (a choreographer, a poet, a painter or a code writer), United States case law and related commentary indicate that moral rights do not automatically inhere in source code and are not applicable to source code authors. Certain licenses provide protection to authors that is somewhat similar to moral rights, demonstrating that contract law is currently the best protection for authors in retaining certain non-pecuniary rights in their source code.

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What are Moral Rights?

Moral rights, in the realm of intellectual property law, are related to an author's relationship to his or her creation. An "author" is not solely someone who writes literary works, but refers to any person or persons who create something in which copyright subsists. This could be, amongst many other things, a painting, a choreographed dance or, as we will see, open source code. Moral rights do not directly protect the author's monetary interest in his or her creation, but rather a personal, reputation-linked quality in the creation. It is important to touch upon this concept in the realm of Open Source Software (OSS) because OSS is an increasingly international phenomenon and because the concept and potency of moral rights is somewhat flexible. As technology changes, so too do specific applications of legal concepts; in this case, moral rights may acquire a technology-related veneer that was originally unforeseen.

The breadth and strength of moral rights varies greatly depending on several factors, chief amongst which are jurisdiction and medium of expression. In several European countries, for example, strong moral rights vest automatically and inalienably in a gamut of creations, ranging from literature to photography. In the United States, our Visual Artists Rights Act (VARA), part of the implementing legislation for the international Berne Convention, applies moral rights exclusively to visual art. Indeed, "moral rights" in the United States typically refers to the right of an artist to prevent revision, alteration or distortion of his or her work, and does not depend on whether the physical work is owned by the artist or not. This is often called the "right of integrity." VARA also allows an artist to avoid association with works that are not entirely his or her own and prevents the defacement of those works that do belong to the artist; this is referred to as the "right of attribution."

In some jurisdictions, mostly those of European countries, moral rights include the "right of disclosure," for which the author has the final decision on when and where to publish his or her work; the "right to withdraw," for which an author may purchase at wholesale price all of the remaining copies of his or her published work if the author's expressed opinion were to change; and the "right to reply to criticism," for which an author has the right to reply to or rebut a criticism of his or her work and to have that reply published in the same place as the criticism.

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How Far Do Moral Rights Extend?

There are instances where the concept of moral rights overlaps other kinds of positive legal rights. An author may try to show, for example, that an alteration or distortion of his or her work actually created a "derivative work," and therefore violated copyright law. Other tangentially related concepts include defamation and libel. In a 1937 New York case, for example (Gershwin v. Ethical Pub. Co., 166 Misc. 39), a physician filed an action for libel against a publisher for the unauthorized attribution of an article to him; the court directed a judgment in favor of the physician and against the publisher, applying a form of the "right of attribution." There is no use of the term "moral rights" in the decision but the principle is the same as that described in VARA's menu of artists' moral rights. Other United States court decisions make a different application of the concept, however, especially in the realm of authorial rights in technology. In the 1998 United States v. Microsoft Corp. case (1998 WL 614485 (D.C.C.)), the court decided that "whatever policy justifications that may exist for a moral right of integrity in works of art are substantially weaker when the work at issue is a computer program, whose value lies in its functionality, not its artistry…. Although Microsoft undoubtedly enjoys some 'right against mutilation' in its software, there are significant factual questions in dispute on this issue, chief among them the extent of copyright protection in the specific portions of the software plaintiffs seek to modify."

While the majority of jurisdictions that recognize moral rights law extend its application to a broad concept of what comprises an "author," the United States has tended to contain any application of "moral rights," especially when categorized as such, to artists. In Weinstein v. University of Illinois (811 F.2d 1091 (7th Cir. 1987)), for example, the court said that the plaintiff was trying to assert the "droit moral, the Continental principle that an author may prevent mutilation or misuse of his work…. But no jurisdiction has created the sort of moral right Weinstein invokes, let alone created any moral right through judicial decision. A federal court is not about to foist so novel a principle on Illinois. There is no reason to suspect that the courts of Illinois are just about to adopt an approach that no American jurisdiction follows as a general matter." Extrapolating moral rights to open source software, courts have demonstrated a similar distaste. As Lawrence Rosen notes in his book Open Source Licensing, software "is not a work of visual art…so it is not subject to (the moral rights provision) of the law. But a license expresses the law of the contract, and in the case of the Artistic License, the law of this contract protects software authors' rights to attribution and integrity. It does what the copyright law doesn't do – protect the rights of software artists." The concept of moral rights, therefore, can be applied to software artists and authors through specific contracting, but United States law does not automatically provide for moral rights existence in any works aside from those laid out in the VARA. Different kinds of authors, such as the physician who did not write the article originally ascribed to him, have had some small successes in extracting a moral rights-like protection from courts, but no open source software author has yet to cull an analogous protection in the realm of OSS.

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Licenses Provide Moral Rights-Like Protection

Contract law, and in this case open source licenses, may provide some degree of moral rights-like protection. The GNU General Public License, for example, provides that, "if the software is modified by someone else and passed on, we want its recipients to know that what they have is not the original, so that any problems introduced by others will not reflect on the original authors' reputations," similar to the right of attribution. The Creative Commons License "Attribution 2.0," correspondingly, puts forth that

If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author").

The Mozilla License, interestingly, has a similar "right to attribution" component to its language, and also calls upon something similar to the right of integrity: "To protect each distributor, we want to make it very clear that there is no warranty for the free library. Also, if the library is modified by someone else and passed on, the recipients should know that what they have is not the original version, so that the original author's reputation will not be affected by problems that might be introduced by others."

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Conclusion

Moral rights do not automatically inhere in source code and are not applicable to source code authors. Several prevalent open source licenses provide protection to authors that is somewhat similar to United States-flavored moral rights, demonstrating that contract law is currently the best protection for authors in retaining certain non-pecuniary rights in their source code.

References

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