Code Constraints

Published 20 years, 3 days past

Chris Adamson has an interesting post over at the O’Reilly Network about code in books and articles.  In summation: should code be given a special license, separate from the actual text?

While CSS isn’t code, exactly, the same basic questions apply to the stuff I’ve written.  Let’s take my most recent title, More Eric Meyer on CSS.  It contains a copyright statement that says, in effect, you can’t reproduce the book’s text, in part or in whole, without permission.  There is no distinction there between the explanatory text (“Margin collapsing is an interesting problem in some cases, and here’s why, blah blah blah…”) and the styles.  Taken literally, the copyright statement says that you can’t re-use any of the CSS I created in your own designs.

This is clearly in opposition to what I think most of us would agree is the expectation, which is that you can use styles (or code) as you see fit but you can’t take the ‘narrative’ text and pass it off as your work.  But where’s the dividing line?  Suppose that, for whatever reason, you really like one of the designs in Project 4.  We can agree that you should be able to re-use the styles presented, but a whole design?  Is that fair?  I can imagine many arguments both for and against, many of them variants on the classic slippery-slope argument.

In my particular case, the situation is even less clear.  As anyone who drops by the book’s site will discover, the project files are freely available for anyone to download.  You aren’t even expected to own the book as a condition of using them.  That makes them less protected, I would think, than if they were on a CD that accompanied the book—but how much sense does that make?  Again, I can envision several arguments on both sides of the issue.  The same questions would arise for any author that provided code samples for download, as many do.

There’s also the question of what rights can or should be granted to the reader with regard to code.  I might hypothetically make the styles all freely available to anyone, but only under the condition that attribution be given to the source (either me, the book, or both).  Wouldn’t you, as a reader, find that rather annoying?  I would.  “You mean I have to give Eric credit just to use two CSS rules that create this cool effect?”

I’ve always operated on the principle that any markup or CSS I write about is fair game, because otherwise what would be the point of writing about how to use it?  I can see it now: “use of the CSS presented in this tutorial, including any derivative works, without the written consent of the author is prohibited.”  Yeah, right!  That would be something like a dictionary prohibiting you from using any words you look up, including all modifications and misspellings.

So should books contain an explicit license regarding use of the code?  If so, what kind?  I expect readers and publishers will have different viewpoints, although the more clueful publishers probably won’t be too far away from the typical reader perspective.  There’s a part of me that wonders why we even have to be explicit about this at all—after all, there’s been a sort of tacit acceptance of code re-use to date—but in a litigious DMCA world, this is an issue that probably has to be addressed sooner or later.

As I ponder the subject, I’m currently contemplating putting all my code samples under a Creative Commons ShareAlike 1.0 license, both now and into the future, just to make sure the bases are covered.  Then again, perhaps an explicit Public Domain license would make more sense.  Which one would be better, or is there a superior approach I haven’t considered?  Let me know.

Comments (18)

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  3. Well, in the case of your book, I think the point is moot. As I understand the law, in order for a copyright or patent to be enforceable, the owner of said rights must enforce them. Meaning that if you reasonably know that someone is using material that you own the rights to, you must employ whatever means appropriate to force them to cease and desist.

    However, when you post that same code on the web, with the expressed intent of sharing it freely, you no longer hold that right. Obviously, you could reiterate your rights in a copyright statement on your site, in fact, using clearer language regarding what is shared freely and what is copyrighted – at least that’s one opinion.

  4. Eric,

    Hmmm, I hope you don’t come after me and the efforts I’m doing in my small part of the Web World to promote standards and good use of CSS. Actually, I can see that you so fairly share your talents, and I for one, very deeply appreciate your efforts. Ever since your great book, Eric Meyer on CSS, I’ve incorporated CSS early in my Web Page Development course at Heald College. It is an introductory course and many “experts” at our headquarters are of the opinion that CSS is too far advanced for these students. Because I never teach the dreaded FONT tag, among others, students seem to take to CSS in great “style” (pun intended) early in the course. So, please, never stop sharing. I’ve taken inspiration and your mentoring to bring to my students the wonders, frustrations, and delights of CSS. Please see my Web Site Colophon for my gratitude to your splendid contributions.

    Also, coincidently, The Monday, June 14, ’04 NY Times ran an article about a Professor Turow at U of Penn and his run in with DMCA!


  5. Having never written a book I have a question. Do the author retain full copyright over his words or is there some kind of shared copyright between author and publisher going on? And if so wouldn’t it then be a Bad Idea for Eric to publish the code online with a Creative Commons License (since he would need to get his publisher’s permission first)?
    With that said I would prefer to have an explicit statement on what I can and can’t do with code from books (especially if it says “use it for what you wish free of charge”).

  6. Keith: Just because you put the files up for download, it doesn’t mean that the downloader can copy them, it even written at the bottom of each page:

    Unless otherwise indicated, all contents of this site and the book More Eric Meyer on CSS are copyright Eric A. Meyer and New Riders Publishing. All Rights Reserved.

    In the US, you have the concept of fair use that means that anyone can use a small sniplet of code and won’t need to attribute the original author, but this don’t work around the world (for example hear in Sweden we only have a right to cite, not a general usage right).

    There is some problems with using the ShareAlike license for this type of material (given that your goal is to promote CSS in all uses:-): If someone wants to use the code, she will have to publish the derived work under the same license, which could be complicated if they are for example doing work for hire on an old website with code from other sources.

    I would suggest using ether the Public Domain license or something like the three clause BSD Licence, the BSD License requires attribution but is otherwise quite like public domain.


  7. As I understand the law, in order for a copyright or patent to be enforceable, the owner of said rights must enforce them.

    No, you’re confusing Copyrights and Patents with trademarks. Of the three, it is only trademarks that need to be defended in order to be retained. That’s why you can have, so called, ‘submarine’ patents which are not enforced until a particular technology has become widespread.

    Without actually knowing what the Eric Meyer on CSS site says about the files for download, the simple fact that they are freely avaliable on the web independent of the book doesn’t affect the fact that they are subject to normal copyright law.

    My feeling is that, if you want to be certain that anyone using your code is on legally sound ground, you need to be sure that it is explicitly licensed. I tend to agree that a BSD-like license is the most appropriate (i.e. one where there is no restriction on the license of the derivative works but, perhaps, where an attribution in the source file is required).

  8. This is an interesting problem. Perhaps all code in your books and/or articles should be released separately from the said book and/or article. So your book and/or article would have a copyright on it that says everything in here is mine, you are not allowed to use it, however, the code mentioned in the article is available at (insert url here) under the (insert license name here) license which allows you to use it (insert license conditions here). In essence you would be dual licensing your code, one for the published copy of you code and another made available to the world at large.

    This sounds kind of silly because you could potentially nail someone for cut and pasting your code from an article that would have been perfectly legal for them to use if they had downloaded it from your site. I’m not sure how you would manage to prove that, but it would allow for the possibility none the less.

  9. I hate to think that if someone wrote about “background-color: transparent;” in a book that this person could come after me for using that same snippet of code in one of my sites.

    For this reason, I’m not sure you can secure the code: possibly an entire “paragraph,” provided that the paragraph creates a particular function, like one of Eric’s menu choices available at But then you have variant appearance and such, and you’re left with the same situation as Apple suing Microsoft for patent infringement for “look and feel” issues with Windows. It’s a tough call.

  10. IGraham –

    I have not been able to find anything to support my idea of copyright law, but I knew I was right about patents.

    From the Website of Ladas and Parry, Intellectual Property Law:

    A patent owner’s failure to promptly enforce its rights once an infringement is discovered can limit his or her remedies or may even preclude enforcement against that party.

    Regarding copyright, some of it may come under “Fair Use.”

    From Standford University’s Website:

    Often, it’s difficult to know whether a court will consider a proposed use to be fair. The fair use statute requires the courts to consider the following questions in deciding this issue:

    – Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it’s usually not fair.)
    – How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
    – How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use that if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).

    As a general rule, if you are using a small portion of somebody else’s work in a non-competitive way and the purpose for your use is to benefit the public, you’re on pretty safe ground. On the other hand, if you take large portions of someone else’s expression for your own purely commercial reasons, the rule usually won’t apply.

  11. Is CSS even able to be protected by copyright?

    I’ve also had a bit of trouble with this. Say i use something like: #main {margin: 1.25em 5em 0 5em;} Certainly that rule can’t be copyrighted, but it came right from Project 4, linked above, which claims copyright on it. Is it the whole .css file that’s copyrighted? What if I just use half of it? This type of thing hasn’t really been tested anywhere AFAIK.

  12. A lot of CSS stuff would not be eligible for copyright anyway. CSS that enables you to “do” stuff, like make horizontal menus out of list elements, is functional stuff that would require a patent, not simply an expression of an idea or a design. Patents need to be applied for and granted: you can’t just post a notice.

    Copyright doesn’t allow monopolies over functionality. What that means is that if there is only one way of accomplishing something, you cannot copyright it, because that would create a monopoly. Courts have ruled that if there are only a finite number of ways of accomplishing something, then allowing copyright of those ways would be a sort of group monopoly for the people who copyrighted those finite number of ways. This is why utilitarian writing such as rules for games, contest rules, and the like have not been protected, because in doing so you would in effect give the writer control over the game or contest structure itself.

    I think CSS falls in the same category as PostScript fonts: fonts are probably not copyrightable (because font design falls under the “useful objects” provision of title 17). Adobe claims their font products are “computer programs” programmed in the PostScript computer language, but they have consistently refused to litigate this. “Useful objects” can be copied–exactly– by anyone. No changes at all need to be made.

    To the extent anything is copyrightable, it would be the overall design of a web page. The CSS is not protectable unless patented, just as a particular type of offset press that produced a printed design would not be protectable by copyright–only by patent.

  13. As I understand it, in England and Wales; the basis for an action in tort of this type which a breach of copyright/patent would be, requires the claimant to establish a financial loss and plead what are therefore called special damages. The difficulty anyone who has given away his works faces, is establishing that financial loss. The US law with its *failure to enforce* provision seems similar. Unless the claimant could establish that his wizard CSS rollovers were a money spinner, and he had lost money as a result of the defendant using them the action would collapse. Our courts also use a catch all of *an undesireable brake on progress* which gives the judge a very wide discretion in these circumstances. But I hasten to add I am not a lawyer. Mere knowledge is not copyrightable at all.

  14. I don’t know the exact legislation in the US, but I assume the following applies in one way or another. In dutch copyright legislation, you have the freedom to use any material, as long as the result is different enough to let it count as a new ‘work’ in its own right. So I can take snippets of texts, code, images etc, and rework them in another article, program or graphic in such a way that the newly created work is ‘truly’ new. For instance: Warhol depicting a Marilyn Monroe photo or Campbell soup cans in such a manner that the result is considered a work itself. Or: a journalist basing a story on three or four public reference sources, but writing it in his tone-of-voice.

    Where the line is drawn (what is theft and what is an original ‘sampling’?) is ultimately decided in court: the copyright owner must defend his case that the work is an infringement of his rights.

  15. I’ve always operated on the principle that any markup or CSS I write about is fair game, because otherwise what would be the point of writing about how to use it? I can see it now: “use of the CSS presented in this tutorial, including any derivative works, without the written consent of the author is prohibited.” Yeah, right! That would be something like a dictionary prohibiting you from using any words you look up, including all modifications and misspellings.

    Now that is funny. And also quite true. I honestly, from the point of view of a non-lawyer type, don’t think you can copyright .css code anymore than you can HTML or Javascript. I only have to change enough of the code to make it non-identifiable as your code so that I could claim I wrote it myself. Very hard to prove otherwise with something as easy to “look at” at .css is. Now if I were reverse engineering your compiler code, then you would have grounds for litigation.

    All of that aside… keep up the great work Eric. You have no idea how many of us there out out here who truly appreciate the effort you put forth for people just like me.

  16. I’m not a lawyer either but I don’t see why code would not be covered by the books copyright. However, if the code was not originally written by the author would that constitute plagarism? Given the limited name space we code in, is seems possible that the author could write original code that accidently is identical to external code. How would the author’s copyright interact with something like the GPL?
    Given the way that things could get really messy I suspect that having a seperate copyright for the code to be a very sensible idea.

  17. It is ludicrious to think that one could copyright CSS stylesheets. It is one thing to copyright a book, considering that there are literally trillions of possible combinations of words that could produce trillions more unique meanings and ideas. CSS code is a rather limited vocabulary of commands that even random groupings could produce a readable display. Would anyone consider copyrighting a book written in a language that contained only three words or a photographer copywriting a photo based on a specific number of shades of gray in the work?

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