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A few years ago somebody created a bunch of really awesome and quite popular shell scripts.

They don't work in the latest version of Mac OS X, because a filepath has changed. All you need to do is edit the file path (in four different places) to make them work again.

The code is posted on a private website without any source control, the author hasn't updated them in almost a year, and this bug is fairly long standing now. It is clearly open source, and intended to be used/modified/whatever, but he hasn't released it under any license.

I want to fix the bug, and post it on GitHub, preferably under a public-domain style OSS license. I wonder what the legal ramifications might be?

The code is fairly simple (under 300 lines), but I couldn't rewrite it without reading every line of his code first.

At the very least it needs to be moved to a website that will not vanish at any time (there is a tilde in the URL... university account?), and the bug needs to be fixed since many of the target users don't know how to go in and fix it.

I have sent an email to the author, but my experience is when simple bugfixes aren't being applied to popular project, emails will never receive any response. For the purpose of this question, lets assume he will not reply to my email.

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Be sure you know what "public domain" really means. If something has a license, it's not public domain. –  Keith Thompson May 11 '12 at 0:04
    
A "public-domain style OSS license" is one that allows modification and/or redistribution with or without attribution, and allows relicensing under any other license. –  Abhi Beckert May 11 '12 at 3:24
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At least in US law (disclaimer: IANAL), "public domain" has a very specific meaning; "public-domain style" does not. If something is in the public domain, it is not covered by copyright, and therefore needs no license. (I suppose you could think of it as a special case, the null license, but I suggest that's potentially misleading.) In particular, you cannot take somebody else's copyrighted intellectual property and release it to the public domain yourself. –  Keith Thompson May 11 '12 at 5:27
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Provide a link to the web-page maybe we can find the license or somebody here may know how to contact the author. –  Loki Astari May 11 '12 at 6:26
    
@KeithThompson it is possible to create a license that provides all of the rights that "true" public domain provides. There are several popular licenses for doing so. It's a well known and well defined term in the open source community. Unlicense and CC0 are two examples. –  Abhi Beckert May 11 '12 at 6:41

7 Answers 7

up vote 23 down vote accepted

Short answer: absolutely not.

Everything a person writes, whether it is software or text, is automatically under copyright. The default state of any text is that it is completely owned by the author and no one has rights to do anything with it without express permission of the author. A few decades ago, an author used to have to assert copyright in order to retain it, but this is no longer the case.

You can even see on sites like this legal text down there that states that I agree that this post I am typing is available under a certain license. If that wasn't there, I'd retain all rights under the law.

Thus, if you cannot find any license information, then you cannot copy or modify it for any reason other than personal use.

Making something "open source" is a deliberate act and for you to treat it as such, you have to have found a license that tells you explicitly what your rights to the software are. This is even true of "public domain" software. That is, something is only "public domain" if it has either expired copyright (which mostly means it was written decades ago) or if the author has explicitly placed it in the public domain in writing.

In the case you describe, your only recourse is to contact the author and request that he allow you to do what you ask. To do otherwise is flatly illegal and in theory could lead to damages. (In practice, of course, you'd have to get caught.)

Edit: IANAL. Talk to one if you intend to do this.

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You might also want to look at the following two links: en.wikipedia.org/wiki/Abandonware and en.wikipedia.org/wiki/Orphan_works. They might provide some guidance. –  Locke Jan 15 at 16:59

It is clearly open source

and

he hasn't released it under any license

conflict. Just because you can see and even modify the source, doesn't mean it is open source. You cannot take this work and just give it a license, as it is not your work and you have not been granted a license to do so. You need the author apply a license to the work or make his intent clear in writing.

Insert "I am not a lawyer disclaimer" here.

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You cannot put the code under a different license. This is not your call to make; the original author still holds all the rights for his code. Since he put the code online, you can assume with good reason that the original author allows fair use and modification, and if your e-mails are not answered, you'll have to act on this assumption.

Put your changes under an OSS license, but leave a note with all the information about the original author and the missing license information in the code file. Then fix and redistribute.

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Legally speaking, you can't redistribute. The closest you can get is to create a patch file, point to the originally posted version, and tell people how to apply the patch. –  Steven Burnap May 11 '12 at 2:46
    
Fair use is a legal thing (defined in the copyright laws) not something the author implicitly allows. Just because an author makes something visible does not give you any rights to redistribute; these rights must be explicitly granted by the author. –  Loki Astari May 11 '12 at 6:18

You could try contacting the original author and asking if he would let you use the code under some suitable license and then go from there.

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You can provide patches. As the distributor of those patches, you're not liable for infringement anyway (they're trivial: filepath X has become filepath Y).

The combination of the original, copyrighted work and your patches is protected as a derived work. That means the combination cannot be distributed, but that's not needed anyway: the patching will be done by (or on behalf) of the end users.

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But he can not distribute the original (only the patches). If the originals disappear (one of the worries the OA indicates) then the patches become worthless (unless the patch is to add a space to each line (and the patch file thus includes every line) :-). –  Loki Astari May 11 '12 at 19:55

Note: for any non-open-source code on github, you can still fork it - at least on github. This is useful because many of us will see the title "code with no license ... can I fork it?" and come here wondering about github. (I did not reproduce the words "open source" in the question text for the reasons mentioned in other answers.)

This minimal license is a result of the github terms of service and clarified in the Open Source FAQ:

What happens if I don't choose a license?

You're under no obligation to choose a license. It's your right not to include one with your code or project, but please be aware of the implications. Generally speaking, the absence of a license means that the default copyright laws apply. This means that you retain all rights to your source code and that nobody else may reproduce, distribute, or create derivative works from your work. This might not be what you intend.

Even if this is what you intend, if you publish your source code in a public repository on GitHub, you have accepted the Terms of Service which do allow other GitHub users some rights. Specifically, you allow others to view and fork your repository.

If you want to share your work with others, we strongly encourage you to include an open source license.

Here is the exact language from the Terms of Service:

... By setting your repositories to be viewed publicly, you agree to allow others to view and fork your repositories. ...

By the logic on patching, I believe this means you may even be able to upload 'patches' to your github fork, but I am not a lawyer and you should consult one if you have anything worth suing for...

To be very clear, this answer ONLY applies to github - and the terms may change over time - although other collaborative sites may have limited or permissive licenses if you search for them...

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Since they're contradictory you'd have to ask a jury, not a lawyer. But I don't think GitHub's terms of service will override copyright law. GitHub does not own copyright to the code, therefore they have no right whatsoever to decide who can do what with it. The terms of service will protect GitHub but doesn't protect the person who makes a fork - they could be found guilty of criminal copyright infringement if they use the code without permission. –  Abhi Beckert Jan 17 at 12:35
    
@Abhi - I think that you are confusing Github making Terms of Service a requirement for site usage and the source originator's decision to accept the Terms of Service. It is the originator who is telling everybody he will "allow others to view and fork [his] repository" by accepting the terms of service and uploading the content to the public site. That being said, it may be a jury that will decide these things - but consulting one's lawyer is a good place to start. :-) –  sage Jan 27 at 1:02
    
allowing others to hit a fork button so they can modify the code and perhaps send a pull request is one thing - I agree adding code to github implicitly allows others to do that, but it doesn't give anybody the right to start redistributing the code elsewhere or upload it to the iOS app store and start selling it for example. That would require a license file explicitly permitting it. –  Abhi Beckert Jan 27 at 4:39
    
Sounds like we are in agreement, since the 'license' agreed to only permits forking and viewing. Technically it does not even permit downloading or executing - even without forking! In other words, every project you or I download that does not have a license would seem to expose us to risk. –  sage Jan 28 at 17:09

I would make the fix and publish it regardless of the legalities.

I'd just throw in a READ_ME.txt giving credit to the author and the link where the source was originally obtained from. If the author is freely giving the source to the public, he's probably a nice guy and not planning to sue you.

This could be bad advice, but it's what I would do.

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Hmm... Somehow I don't think the "nice guy" argument will hold in court... –  Yannis May 11 '12 at 0:03
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He's probably a nice guy and would not sue you, but if he's a jerk and decides to, you'd lose the case. Do you really want to be liable for monetary damages for something like this? –  Steven Burnap May 11 '12 at 2:45
    
While he may appear to be a "nice guy" for posting this source code, you do not know what other factors may affect the ownership of this code. For example, he may work for a company that as part of his employment contract contains a clause whereby his employer owns all copyright to any work he produces. You may quickly find that his employer is not so nice, and hits you with legal action over the infringement of their copyright. –  Gavin Coates May 11 '12 at 8:39
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Not good advice. The original developer could be a nice guy or they could be the software equivalent of a patent troll lying in wait to launch a submarine patent on an unsuspecting developer of a derivative project. –  Mark Booth May 11 '12 at 13:14
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Back in reality, if the author posted it with the intention that it be used by others, and it's since been abandoned, and the author doesn't respond to your attempts at contacting them, it's highly unlikely that the original author knows or cares, and republishing the work and your fixes without trying to make money off of them, with a disclaimer saying that the original license is ambiguous, is perfectly morally fine, and won't actually lead to any actual problems. If the original author reappears and asks that you take it down, then you take it down. But they won't. –  endolith May 15 '13 at 20:24

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