[GTALUG] legal history of university AUPs, was Re: For Chris: Commodore BASIC as a scripting language

[Russell Reiter]

ETOn Mon, Aug 26, 2019, 5:11 PM D. Joe, <gtalug at etrumeus.com> wrote:

> On Mon, Aug 26, 2019 at 08:49:44AM -0400, Russell Reiter via talk wrote:
> > On Sun, Aug 25, 2019, 12:01 PM James Knott via talk <talk at gtalug.org>
> wrote:
> >
> >     I nominate Altair BASIC!  ;-)
> >
> >     http://altairbasic.org/
> >     https://en.wikipedia.org/wiki/Altair_BASIC
> >
> >
> > Interesting how legal jargon influenced its development. Harvard at the
> time,
> > did not have a written policy regarding authorized use of computers for
> > commercial purposes. They have since written one.
> >
> > https://hls.harvard.edu/dept/its/its-policies/usage-policy
> >
> > This gives them a measure of control over the purpose of the academic
> research
> > tools and the environment Harvard provides and protects the resultant
> research
> > from unauthorized commercial explotation.
> >
> > You'd think Harvard Law school would have understood law at the time.
>
> The law has changed signficantly since then, and probably in no small part
> *because* of what happened also in the meantime. It can be a challenge to
> see that history clearly through the veil of what has happened since.
>

I think this is why, in academic environments, security of tenure was
established. Ideally it allowed teachers to be able to challange the status
quo, who's stylings may change with each new administraton, in order to
provide a continuity of thought, through the right to freely express
oneself without the fear of censure or censorship outside the rule of law.
This holds true even if the terms of a signed contract of service to the
institution imply otherwise.

These days academic freeedom of expression seems to be only a matter of
what words a union will support or challange in the courts of justice,
given that few academics have the individual enconomic power to complete an
appeal to the SCC.


> The US Dole-Bayh Act (1980) really boosted creation of what we now know as
> the university "tech transfer" office, clarifying how universities can use
> the fruits of government-funded research.
>


The US patent office and also I presume the Canadian and other Five Eyes
partners, vette patents through a national security lense before granting
an open patent on a technologically driven invention. No matter what the
object is, the open patent can be denied in the interests of protecting the
nations security. However knowledge is the genie in the bottle and only its
master can keep it in the bottle.

Government can even use the information in the patent application in
subrogation and provide that information to its military establishment for
national defense purposes, without paying royalties to the author or
informing them the information is now classified as a military secret.

If you could find out that is what happened to your work and could prove it
on a balance of probabilities, you could sue to recover your loss.

This is the crux of an issue currently under debate in North America
regarding Huawei deploying a system of 4g devices in the US.

China is arguing any restrictions would be undue restraint of trade. The US
security establishment (in fairness this is just one part of governmental
interest in the matter) would be arguing the chinese position is a red
herring, in order to throw the scent off a hidden military purpose of
gathering SIGINT meta-data and perhaps even the data itself.


>
> I find it an underappreciated, underdiscussed contributor to research
> climates, climates that in turn led--at least as I read the history--to the
> creation of the GNU project, the GPL, the Unix wars, etc. ... a kind of
> deregulatory-driven "land rush" if you will, in which it was clear maybe
> for the first time that universities were first-class participants. But
> that shift from collegiality to competition didn't suit everyone.


> Then Apple vs. Franklin (1983) clarified that software qualified as a
> literary work under US copyright law.
>

Its interesting and not perhaps well understood that all written works are
fiction. Facts are established by finders of fact. People and organizations
may agree on what any literary works represent. When disagreements occur it
is is the trier of fact, through the Courts of Justice, who make the final
determinations during the essential parts of a trial; preliminary hearings,
motions, disclosure, agreed upon facts etc.

Judges may rely on the evidence, sometimes using experts on the forecasting
of allowable subject matter at trial. They then determine what the true
facts are. Expert testimony is allowed under DELPHI consensus, in the
belief that a structured groupthink is preferable to an unstructured
groupthink.

There is even a CRC process in play here, in that a decision of a lower
divisional court is reversibile on an appeal and that reversion may be
appealed to the Supreme court who will be the final deciders if they so
choose.

https://en.m.wikipedia.org/wiki/Delphi_method

>
> That Harvard policy makes reference to the DMCA (1998) which as I recall
> gave the impetus to one of the most recent last big round of rewrites of
> acceptable use policies, which previously owed a lot to restrictions on
> commercial use of university Internet connections.
>
> Only a decade before had the US finally acceded to the Berne Convention.
> So, birthright copyright is comparably fairly new in the US (in contrast,
> Canada acceded in the 1920s).
>

Canada is a creation of administrative letters patent under an Imperial
doctrine. Our recent constitutional documentation was a sort of an
afterthought, inspired in part by US authorities established in support of
equality in human rights.  Browder v Gayle et al.

On the other hand Plessy v. Ferguson aka Separate but Equal, has never been
fully repudiated by the US Supreme Court and still stands today, although
it is described as historically the worst decision of the US Supreme court.

One recent change of Canadian legal expression will come of age soon, bill
154 has passed, after many years of delay.

https://theonn.ca/our-work/our-regulatory-environment/onca/

The term letters patent, coined at a time of imperial doctrine in 1947,
will be changed to "articles of incorporation."  This following statute
regulating NGO/NPO's is expected to be affirmed in 2020, although it is
leading the current policy of governance in Ontario since 2010.

https://www.ontario.ca/laws/statute/10n15


>
> Amongst those of us of a certain age in the US, who don't have legal
> training, I suspect the lore persists that copyright restrictions apply
> only if the copyright for the work has been registered--this used to be
> true in living memory. How much this largely superseded notion continues to
> get passed along informally to subsequent generations one can only guess,
> but I think it remains prevalent, sometimes manifesting as
> shoot-the-messenger impatience in the face of licensing discussions: Those
> of us who prefer to use and create works with free licenses didn't make it
> inconveniently complicated, we're just trying to navigate an already
> complex situation in which works are born, as it were, non-free.
>

There is state societal doctrine which says that just because you originate
an idea you don't necessarily own that idea; that all ideas flow from state
provided benefit, and any profits then flow back to the state for the
communal good.

Todays Isims.

https://en.m.wikisource.org/wiki/Today%27s_Isms

This was an interesting read in its day. Governmental Activisim vs.
Governmental Passivisim are not explicitly addressed, however it sort of
restates the idea that history is the propaganda of the victors; albeit  in
that sense of the economics of providing writings of histories. At one time
who but a monarch could afford to pay a writer, much less underwrite
printing of a publication.

These days the isims are piling up, ableisim is described as discrimination
in favour of able bodied people; ageisim as discrimination against a person
based on that persons age; nameisim is discrimination against people with
certain names. etc...

Its interesting how expression changes. I have a friend who is called to
the bar and also uses Linux to some extent. He once said to me law is like
a shell script. I thought about that for quite some time and came to the
realization that law is a kernel. It is the forms which law uses in its
balancing of discrete preferences, which are akin to shell scripts. Each
type of form used in arguments of legal fact melds with the others to
confirm the validity of facts in question. A statement either passes the
sum of the tests and is validated or does not pass and is invalidated.
Remedy is argued again in further submissions.

Perhaps legal citations in written arguments in front of the courts were an
early example in the development of object oriented references in
programming. It is the final objective of legal decisions to modify the
objectional behaviour of people, at least within the boundaries of their
own jurisdiction.


>
>
> --
> Joe
>
> > There is
> > a necessary legal implication when drafting policy, like trespass to
> private
> > property. If the intent is to restrict use of private facilities, then
> that
> > activity which is not specifically listed cannot be restricted under
> those
> > writings.
>
>
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