Supporting Open Source While Opposing Copyright

[Note: this article was featured on Slashdot when it originally appeared, and has been edited slightly since then.]

Recently, Slashdot carried an interesting — and in my opinion mistaken — piece by Greg Bulmash about copyright and open source. Here's Slashdot's summary:

Reader gbulmash sends us to his essay on the fallacy of those who would abolish copyright. The argument is that without copyright granting an author the right to set licensing terms for his/her work, the GPL could not be enforced. The essay concludes that if you support the GPL or any open source license (other than public domain), your fight should be not about how to abolish copyright, but how to reform copyright.

The piece contains flaws in both its reasoning and its rhetoric, and deserves a rebuttal, in part because it reached such a wide audience.

The piece's most obvious problem is its conflation of copyright with "creditright". For example, here's how Bulmash asks us to imagine what would happen if the GPL (a copyright license that allows derivative works, but only if they are also under the GPL) were unenforceable:

You create some cool open source app. Then some megacorporation comes along, removes all your claims of credit, adds 10% more code, compiles it, and distributes the executable binary locked up in DRM. [...] Would that theft of your work act as a disincentive to creating more works? Would you say to yourself, "why bother slaving away to create this when some megacorporation can just steal it, put their name on it, and lock it up in DRM"?

This mixes up two completely different concepts: the right to be credited for a work, and the right to control distribution of that work. Attribution and copying are not the same thing: those who download songs illegally from the Internet do not typically replace the artist's name with their own, after all, and yet the RIAA is still filing lawsuits. So attribution is not really the issue here (and in general, letting data be copied freely actually helps prevent plagiarism, a topic covered in more detail here). In any case, no one objects to laws that protect credit. By all means, let's prevent the megacorporation from distributing your work without crediting you proportionally. But it would be a misnomer to call such protection "copyright" law, because it wouldn't have much to do with controlling copying. It would be a creditright, because it would simply enforce proper crediting.

That passage also shows a larger problem in Bulmash's piece, which is that, circularly, his language often assumes the very points he's arguing for. He talks of "theft" and "stealing", as though when the megacorporation gets your work, you somehow lose the work. Again, if he had objected to the theft of your credit, that would be perfectly reasonable, since the degree to which someone else claims credit for your work is exactly the degree to which you lose credit. But he's apparently talking about the theft of the work itself, and this makes little sense when applied to works of the mind. If I steal your bicycle, now you have no bicycle; if I copy your computer program, now we both have it.

All these problems can be seen at once in a paragraph near the opening of his article:

The problem with a large part of the anti-copyright crowd is that they don't understand or won't admit what copyright entails as a concept. That is the right of the creator of a work to exert some control over how it's used, who can copy and distribute it, and a right to have their authorship acknowledged.

Notice the rhetorical sleight-of-hand there: he presents copy control as a natural and uncontroversial "right" — and then accuses his targets of simply not understanding (or refusing to admit) that copyright entails that right! Of course that's not true: the abolitionists understand perfectly well what the laws are today, they're just trying to change them, on the grounds that the laws are bad. If Bulmash wants to argue that control of distribution should be a right, that's fine, but instead he just asserts the right as though it's a fact of nature, like the sunrise, beyond reasonable dispute. And again, he conflates control of distribution with acknowledgement of authorship.

Now let's move to the core of Bulmash's piece, which is his claim that open source software licensing depends on copyright. Here he does have a point, just not as broad or lasting a point as he thinks. For one thing, he tries to apply the argument to all open source software licenses, when it really only applies to the GPL. That's why all of his examples use the GPL, and not other licenses. The GPL is unusual among open source licenses in that it has a "copyleft" provision: it requires that if you make and distribute a derivative work based on a GPL'd original, your derivative must also be under the GPL. It is true that this provision currently depends on copyright law for enforcement, and on various occasions it has had to be enforced, sometimes publicly, sometimes behind the scenes.

But while Bulmash is technically correct that this part of open source licensing depends (today) on copyright law, he's missing the forest for the trees.

I'm not arguing, by the way, that total abolition of copyright is necessarily the best thing. I do think it's a defensible position, though, and that either abolition or very fundamental changes to copyright terms and restrictions are needed to save our culture from being stuffed into a vending machine and sold back to us dollar by dollar. But that's a topic for another article. With respect to Greg Bulmash, my point is just that copyright abolitionists are being perfectly consistent when they use the open source movement as an example.

66 Comments

I think in saying that a company

I think in saying that a company is going to lock up your work and take credit, Greg Bulmash is setting up a strawman argument which you then knock down.

The real scenario is when somebody takes something you wrote, changes it a bit, so that it's better, but yet incompatible in some way with what you wrote, and then releases it, in binary only form. Now you can't make further revisions to what you have written and have their changes as well. (Think along the lines of some network client/server system, and somebody embracing and extending the protocol to make proprietary features)

The GPL prevents this scenario. The GPL sets it up so you always have what is required to rebuild the software, meaning you can make whatever changes you'd like to their modified version (or alternatively be able to see what changes they made).pets

I'd hope that in an environment without copyright, such a thing did not beget any sort of competitive advantage (so that it wouldn't really happen), but who knows. I do support repeal of copyright, or at least a drastic shortening (I'd think perhaps a few year term would be long enough), but figured I'd point out this scenario

I think it'd be interesting for a court to rule that compiled binaries were not subject to copyright since they are not the original creative work, but machine generated with most of the expressive content gone.

Thanks

Just because something is law doesn't mean it's forever set in stone. Laws are created by humans, and can be changed whenever we feel like it. You don't need to go back that many years to find that women didn't have the right to vote, yet they do today, don't they?

Laws can and should change to reflect the wishes of the people affected by them.

Alex Ivamoto
[commercial link removed, but comment left, in accordance with our editorial policy]

You missed one point

I agree with most of what you said, except one point. The current writing of GPL does one more restriction than a society without copyright has --- if you distribute the binary, you have to distribute the source.

If we abandon copyright but do not allow us to continue imposing this restriction for all the derivative works, we may actually have less than what we have now.

Re: You missed one point

The point of the article is to explain how it is possible to have laws that allow GPL-like licenses to be enforced, yet that don't offer people ways to restrict sharing — laws that would be so different from today's "copyright" as to require a different name entirely. Perhaps I wasn't clear enough about this. I've edited the article a bit to emphasize this point, I hope it's clearer now.

not exactly

while they would be allowed to release without source, everyone had the right to reverse engineer, crack, lift a key from it, or just plain copy their binary.
of course, only dealing with copyright wont fix the main problem
we need to get rid of the "i was first to run to PTO with this specific idea" nonsense too.
and possibly lot more :)

Re: not exactly

I wrote in more detailed elsewhere on this thread. The key distinction I want to point out is that keeping a trade secret when interoperability is not an issue is very different (and much less disrupting to society and to markets) than keeping a trade secret that foils interoperability. The interoperability failures can lead to the creation and the consolidation of trade secret monopolies along many related markets. Markets are damaged with monopolies, no matter the reason. Revealing trade secrets (ie, sufficient blueprints or specs) in these cases (to prevent interoperability issues) should be a requirement much as we require standards in civil engineering and in the production of most goods. For software, "open standards" by themselves can be very subpar as compared to revealing source code. This is because most relevant software is very complex, requires a high degree of precision (the digital nature of computing), and can be changed rather quickly and easily after being installed. How much we can rely on a spec or standard in lieu of source code (blueprints) depends on the details of the open standards (eg, do we have underspecification and/or are there weak or no interop testing requirements), the amount of software involved and how much it is likely to keep growing, and on the actual participants: are they small and cooperating or do we already have a dominant player (perhaps monopolist and perhaps law violating monopolist), with the implied incentives to thwart interoperability against their installed base? - Jose_X

Excellent post.

Your article is positively excellent. My stance on the issue is that copyright itself is not at fault here. Copyright can be a good thing when APPLIED PROPERLY. Thats the problem here, not concept, but application. The current system of copyright (such as laws like the DMCA) and the patent office are horribly flawed and should be abolished. Many things today are granted powerful copyright protections when their content or concept is simply not deserving.

Actually, those "rights" are the letter of the law

Sorry, but there is no slight of hand. Those are the rights granted under the letter of the law. And if the law says you have a right to X, you really do have a right to X. It's not that hard a concept.

I really suggest you do some research. Might I suggest actually READING the Berne Convention, before you start making erroneous statements about what copyright is?

What copyright is

Copyright is something we came up with, we tend to call it a law, even though the law is the implementation, and copyright is the convention how to structure the law.

Since it is something we came up with, it is something we can, and will change. Sorry you're unhappy with that, but plugging the fingers in your ears and singing "lalala" (c) doesn't make todays problems with copyright go away.

There IS a sleight of hand

There IS a sleight of hand involved here. Sure, he and the law may both say that this right exists, but that does NOT make it an indisputable right for human beings. Therefore, he is attempting to undermine the possibility that the law is wrong, so I'm sure I don't need to mention other numerous cases where the law HAS been wrong.

No, they aren't rights

That's exactly the point: they're rights under the letter of the LAW, i.e. under the copyright law - which is the point the author makes. They're not intrinsic rights built into how the world operates. They're an invention.

And if you did some research you'd find out that copyright was invented specifically because it was recognized that authors had no such intrinsic rights, that they should not have any such intrinsic rights, but should be given some protection from publishers, who would otherwise take their works, publish them, earn money, and not pay any royalties.

history

Do some research and you'll find that copyright was invented specifically to encourage publishers to publish; the authors had no rights in copyright originally.

Copyright (it may have evolved differently in different cultures and different countries) essentially started as one of the many royal "patents" that kings and queens handed out to reward their allies, giving exclusive right to make and sell certain items to their friends and cronies, to help them stay in power.

Later, copyrights were granted for a limited time to the first to publish a work, to encourage publishing by preventing others from jumping on the bandwagon when something became popular and profitable. This might've made some sense when publishing was hard to do and expensive.

Only later were authors brought in to the deal.

Protection from Publishers

And of course, the publishers, being so concerned about the Artists rights that they will attempt extortion against children (see RIAA v almost anyone in the United States) would always make sure that the Artists always get every penny, cent, whatever, even if they're a bit tricky to track down.

Oh, wait a minute, didn't members of some obscure, reclusive band called the Beatles have to sue to get their royalties?

Letter of the law?

Sorry, but there is no slight of hand. Those are the rights granted under the letter of the law. And if the law says you have a right to X, you really do have a right to X. It's not that hard a concept.

Just because something is law doesn't mean it's forever set in stone. Laws are created by humans, and can be changed whenever we feel like it. You don't need to go back that many years to find that women didn't have the right to vote, yet they do today, don't they?

Laws can and should change to reflect the wishes of the people affected by them.

I really suggest you do some research. Might I suggest actually READING the Berne Convention, before you start making erroneous statements about what copyright is?

While reading the Berne Convention might be useful for someone that is a lawyer and works with international copyright issues, it is NOT a prerequisite before you can have a meaningful debate about the philosophical issues surrounding copyright.

In fact, it is quite the opposite. If we are having a discussion of whether to abolish copyright, you can't base the discussion on a document that puts into law a particular viewpoint surrounding the issue. We know what copyright is, what we are discussing is whether it is a good thing, not how a particular international treaty works.

Don't confuse laws with

Don't confuse laws with legislation. A law is something like 'If you get hit by a train you will die.'. Legislation can codify the law, but it cannot change the law. Legislation can make trespassing on tracks illegal, but it cannot repeal the death penalty for trespassing when a train is passing.

Declaration of human rights

I'm still waiting for an international declaration of human rights to include "control of distribution of one's artistic endeavours". This is not an innate right, its a legal one. Like the right to remain silent in the USA which doesn't exist in Canada. These legal rights are invented by people and written into law or struck from law. In democratic countries, what the majority thinks is true and right should probably be law, n'est-ce pas?

"Right."

Sure. But they're statutory rights, not natural rights. And they're exclusive, divisible, and limited by terms and exemptions.

left right & center

ahh makaoma blaz. kubva mamubvisa chekumeso kudai. Dai ndirini Greg ndatikutsvaga ndikakuponxdesa nemac10 lol.

Handina kuzoverenga nyaya yese nekuti ndakabatikana nebasa asi ndiri kuda kuziva kuti saka imi uri kuti chii chaizvo in summary.

ndini wenyu,

aKumudzi

Re: left right & center

Does anyone recognize that language? Is it a real comment, or should we just delete it? This isn't an English-only site, but we'd like to know that someone can understand a comment if we're going to keep it around...

-the Editors

You're close but have missed the point a little

Copyright abuse is not about crediting work vs. the control of that work. RIAA/MPAA couldn't give a shit about actually controlling the work except as a means to an end. The struggle is actually about monetary compensation for the work. This is why they're willing to throw people into jail for 5 years for backing up their damned DVD - it takes away their potential profit.

What we need is a system that:

1) Financially compensates the creator, not the middle man. Make it unprofitable to be a middle-man and institutions like RIAA/MPAA go away. There should be a cap on what anyone else can make from selling a person's creation.

2) Does not allow an artist/inventor/creator to control distribution or use of the work. Seek compensation proportional to losses, yes, but have to prove that what they're asking is reasonable. Suddenly the whole problem of patented drugs and treatments being overpriced and people dying as a result goes away. Even more beautiful, if someone's able to distribute a creation more efficiently than the creator, they can do it. This also takes care of sharing work creatively where no profit is derived (ie. creating remixes, "mashups" and the like).

3) Removes unreasonable punishment for copyright infringement. 5 years for backing up a damned DVD is not reasonable. Heck doing that with the whole collection shouldn't land you in jail.

Unfortunately a lot of very powerful people and their allies stand to lose big time if such fairness came to pass. It would also be quite difficult to set up a system that administered these principles fairly and was resistant to corruption. So I agree wuith others when they say it's unlikely to come to pass. Pity, because all of the above is achievable.

Here's a radical thought...

Here is a radical thought, why not just dust our hands and call what your wrote "the system". If I may put myself in your shoes for a moment I believe you wrote that thinking that this would not work until someone come up with an idea for ensuring that the creator actually gets compensated.

Let's say we do what you say but rely on the honor system for compensation. The creator sticks an address or paypal account or such on the work for you to pay him/her. You make it another rule that you have the reproduce this information in each copy. Not following any of the rules (breaking the honor system, if you will) would be illegal and have reasonable penalties.

There isn't anything in the system that makes people think they will be caught, but how is that any different from regular copyright? Do you ever fear the Feds busting down the door when you photocopy pages from a book? When you download a video game rom? When you download a torrent?

Maybe this isn't a radical idea and such a system would never work. In this case, the lesson is that if there was a way to make a new copyright akin to what you wrote (and what many like us would like to see) and make it enforceable, then it would be possible to make the current copyright system enforceable.

Hopefully someone will respond to this with additional insight. I've been thinking a lot about copyright recently and can't find any satisfactory solutions.

Here's a radical thought...

One of the main points of this site is that copyright doesn't actually bring much money to artists anyway (which isn't surprising, since that's not what it was designed to do). To be utterly clear about this: we're saying that copyright royalties do not play a major role in economically supporting most creative activity.

This is a difficult question to study quantitatively, rather than anecdotally, of course, but remember that caveat applies to all sides equally. When someone claims that copyright is a significant factor in allowing creative work — significant enough to justify its rather severe prohibitions on copying and on making derivative works — then we should ask: where's the evidence? What methodologically sound study actually shows this to be the case?

Thinking about how artists get paid is fine, it just doesn't have much to do with copyright. Look at how artists actually get funded and you'll see a dizzying array of sources, of which copyright royalties are not even the largest part. So when we talk copyright reform, and you respond with worries about how artists get paid, it's kind of a non sequitur. It looks, on the surface, like the same topic, but for the most part it's not.

a missing detail

I think in saying that a company is going to lock up your work and take credit, Greg Bulmash is setting up a strawman argument which you then knock down.

The real scenario is when somebody takes something you wrote, changes it a bit, so that it's better, but yet incompatible in some way with what you wrote, and then releases it, in binary only form. Now you can't make further revisions to what you have written and have their changes as well. (Think along the lines of some network client/server system, and somebody embracing and extending the protocol to make proprietary features)

The GPL prevents this scenario. The GPL sets it up so you always have what is required to rebuild the software, meaning you can make whatever changes you'd like to their modified version (or alternatively be able to see what changes they made).

I'd hope that in an environment without copyright, such a thing did not beget any sort of competitive advantage (so that it wouldn't really happen), but who knows. I do support repeal of copyright, or at least a drastic shortening (I'd think perhaps a few year term would be long enough), but figured I'd point out this scenario

I think it'd be interesting for a court to rule that compiled binaries were not subject to copyright since they are not the original creative work, but machine generated with most of the expressive content gone.

Think harder

1) Imagine a world without copyright.
2) You sell software
3) Who is going to buy your software without the source code?

The binaries are going to be free (if anything, to demonstrate the source code has been written).
Whoever buys the software will not pay good money for a binary. They will pay for the source code - the source code is the software.
Because copyright has been abolished they have their liberty to resell, republish, or modify that source code.

Liberty is not about forcing a software author to release their source code without payment, it's about preventing the author denying liberty to those to whom they sell their software.

The GPL doesn't really need to oblige non-obfuscation, but it does so simply to persuade licensors away from the withholding mentality engendered by the proprietary business model.

Check out this mailing list thread here where I attempt to explain further:
[FC-discuss] CC/fc.o/Tot

http://tinyurl.com/2qrr73

I'm trying to think harder...

You ask:
1) Imagine a world without copyright.
2) You sell software
3) Who is going to buy your software without the source code?

First, I'll answer #3 - The huge numbers of people who would not know what to do with source code would buy a binary without source code. People like you and I feel that "source code is the software," but most users feel that software is something they just need to activate to do a task.

As far as #2 goes - How could I sell software at all, if any customer I sell it to has the liberty to sell it for less, or give it away? It's true that I still have the software I created, but I have lost the ability to sell it as soon as it is widely available for free.

You're getting there

Plainly, many software engineers would rather sell their work than give it away.

As you mention in your #2 response, the moment you sell your software, the liberty to redistribute soon brings the price of copies thereof close to zero. But, what do you care? You've been paid in full.

The people who 'don't know what to do with source code' will probably have obtained one of these zero-price copies. It doesn't matter whether it's accompanied by source code or not.

The people who are buying your software development services are those who want you (or anyone else) to improve the software. And because they are going to be keen on a good deal, they'll only pay you if you provide them with the source code - so they can ensure that they get what they paid for, that they can check its quality, and have the option of getting anyone else to improve it. And of course, they are free to redistribute the source code to maximise the likelihood that it can be improved - what good is it to them to keep it secret unless to sell to someone else (until eventually, as you observe, the price hits zero).

Essentially, anyone who wants the source code pays for it - until the market's so saturated that the source code is free.

The coder still gets paid. The public get their source code and they keep their liberty.

You do not need to make it illegal to publish binaries without source code. If the market for copies becomes unviable the only remaining market is to sell source code - and binaries become an excellent means of advertising source code prior to its sale.

Remember, we're not trying to stop programmers earning a living, we're trying to stop programmers suspending our liberty. We have no right to violate their privacy in order to confiscate their unpublished source code without paying them what they want for it. However, we do have a right to do what we want with their source code once we've paid for it, i.e. run, study, copy, modify, sell, etc.

Copying ("not diminishing supply") is ok, here's why

You reference Einstein's pfennig quote with "If I steal your bicycle, now you have no bicycle; if I copy your computer program, now we both have it." That's great. It's great to share knowledge if you want to. It's also great if I have a very interesting and innovative idea, thought, method of creation, talent, etc. which I believe is, as Drucker puts it "of value to the customer," from which I ought to be able to profit, if I so choose. If you copy my formula for a new type of metal, my warehouse management algorithms, my recording of my performance, my story about a magical boy, or my jambalaya recipe, then yes, I still have it. Supply of these copyable works is not diminished, and I should be happy, because I still have my creative works. I'm not harmed, am I? You haven't lobotomized me, erased my hard drives, stole my files, or anything that would destroy my knowledge of my intellectual works.

Of course, now that you have my knowledge, which I acquired through an investment of my time and/or money, I should be happy when you begin to profit off my investment of money, knowledge, experience, or talent as well, whether or not you put my name on it. Your foundries, your big stores, your music sharing service, your bookstore, your corner restaurant are free to use my investment for your gain. What's wrong with that? You have not diminished my supply of product, have you? So, everything must be ok? Right? Since I sold my metal to my customers, created an efficient infrastructure that delivered value with low overhead which allowed me to pass savings to my customers, offered my recordings in the way and quality I deemed appropriate, entertained many with my writing, or always had a packed restaurant with people lining up for my jambalaya, I will continue to do so, right?

You will have your own customers, which have no overlap with mine, right? There are plenty of customers to go around, right? The supply of customers is not diminshed, right? So everyone will be happy, because demand is infinite, right? Just because you start selling something based on my works, and assuming you are competent enough to understand my works and implement them, you won't cut into my supply of customers, right? If you put my name on it, but weren't quite capable of producing at my level of quality, I shouldn't be concerned, should I? The customer won't be concerned, as long as they know it's from me. They'll know because it has my name on it, even though they didn't buy it from me, that what they have is exactly what I intended them to buy.

It's all very clear to me now. You didn't take my bicycle - I still have it. You copied my ideas to provide value to customers in a particular market - I still have my ideas - you did not take them away from me. The market which values my ideas, and will pay a fair price for them, is now cut in half for me, because now there are two suppliers (me and you) where before there was just one (me). Just because you didn't reproduce it at the level I expect and demand, that won't have an effect on the fair price, will it? Especially not for my items, nor my future items. Indeed, neither supply nor quality nor reputation has not been dimished at all. That's a good thing, right? Of course I will be very happy to share my profits from my works which are of value to my customer market with you. It really is very clear. There's no reason at all to protect intellectual works, nor the methods of distribution.

Re: Copying ("not diminishing supply") is ok, here's why

I'm not familiar with Einstein's pfennig quote, actually (at least not consciously).

I think I detect some sarcasm in your reply :-), but let me just say: it is not society's responsibility to guarantee the success of some particular business model at the expense of others. Repeating the word "my" over and over, mixing up its associative and possessive senses without distinguishing between them, won't make me any more comfortable with a third party telling me what I can and can't share with others, or what I can and can't make derivative works from.

But also, as we've said elsewhere on this site, copyright royalties do not play a significant role in the lives of most artists anyway. So I think you're arguing for a theory, rather than a reality, of economic benefit here.

Re: Re: Copying ("not diminishing supply") is ok, here's why

But also, as we've said elsewhere on this site, copyright royalties do not play a significant role in the lives of most artists anyway. So I think you're arguing for a theory, rather than a reality, of economic benefit here.

But copyright royalties *do* play an important roll in the lives of most artists. Take writers for instance. If a book doesn't sell, it doesn't generate royalties, if it doesn't generate royalties then a writer usually must use their own funds to pay back an advance. It also means a writer might not get another book deal, etc. Same deal with musicians, if everyone's utilizing your work for free, what incentive is there for a recording company to offer you another contract?

Artists, and i'd imagine programmers too, like to do what they do, and why shouldn't they make a livelihood from it?

I think I detect some

I think I detect some sarcasm in your reply :-), but let me just say: it is not society's responsible to guarantee the success of some particular business model at the expense of others.

There's a vast gulf between "guarantee" and "support".

Copyright goes something like this: Intellectual works are the property of everyone (once they are released to the public). But we want to encourage people who create original work to do so, so we grant them a limited exclucivity (copyrights expire) to profit from their work.

If we remove copyright, there's no fiscal motivation to create any intellectual material. People would still write books, but professional authorship would be gone. The same is true in software.

Does anyone here truely think that HalfLife2 would exist if Valve could not make any money from it? Even most open-source programmers earn their money from works with copyright.

If you steal my bicycle, I have no bicycle. If you steal and put on bittorrent the program I spent the last year living off credit to devote to writing it, then I have no way to pay back my creditors. Even if my prgram is a huge success.

And I would point out that those GPL companies offer plenty of works under copyright.

Re: Copying ("not diminishing supply") is ok, here's why

"If I give you a pfennig, you will be one pfennig richer and I'll be one pfennig poorer. But if I give you an idea, you will have a new idea, but I shall still have it, too. " - Albert Einstein

Never did I say it was society's responsibility to guarantee the success of some particular business model. Like I said, referencing Drucker, business is about determining what is of value to customers, and determining how best you can provide to that value. If I think selling pet food online to customers is of value, and I base my business model on that, but it is a bad business model and fails, that is my fault alone. But if it is a good business model, and involves some unique intellectual property that enables it to succeed through increased value to the customer or decreased investment for me, and someone claims "information must be free" and copies some part of that business model / process / operation / software / etc. from me, and then proceeds to use it themselves, thus reducing my market share (but my idea's marketshare stays the same), then I have been wronged. The idea's future revenues are now split between two recipients of value exchange from customers.

Note also, that no where have I told you that you cannot share your ideas. You are fully welcome to. They are yours, to do with as you please, and for anyone to presume to tell you what you can do with them is highly offensive. If you wish to give them away, freely, do so. If you wish to sell them for some other object (idea / thing) of value, then do so. To rework Voltaire, I may not agree with your policy with regard to your works, as if they were mine, I would treat them differently, but I will defend your right to do so to the death. I would expect no less from you.

Since I expect no less from you, that means I expect no less from the society within which I live. The social contract which is the foundation of law provides method for you and method for me to claim exclusive rights of ownership over our ideas, and to then provide transference of those as we see fit. For RMS, that right is expressed in the GPL, with which I have no problem, and have complied with and even produced under, when I felt was appropriate. For you, fill in the blank. For me, depends on what I think of the potential risk / reward calculation. For a bunch of guys with a garage band, it's probably about simple recognition. For the map data company, it's all about making money.

You focused on artists and copyright. I speak of intellectual property as a whole. Royalties may only pertain to a part of an artist's income, but the highly accurate and researched map information of a map data company, or the route finding algorithms of a navigation software provider are completely dependent on licensing royalties. Both are under something called "copyright", and no matter what the history of the term, it is currently the process by which an entity can protect its work when a patent is not appropriate. If the argument is to remove any such concepts of protection, no matter what you call this protection, then what incentive does an investor have to create a business model in the first place? If nothing of your company can be unique, then what is the point?

Claiming service, packaging, customer relations, etc. as the "value add" as a viable business model is immediately problematic. If these become the only methods of differentiating one company from another, then significant time and money will be devoted towards these activities, and without doubt, new and innovative concepts will be created. These concepts will become the assets by which one company separates themselves from another. These assets will desire protection. Whether it be employee training, call center procedures, packaging designs, service websites, training manuals, or something new to help sell products, all of these things, once considered collateral to the item of real value, will become the new items of value. But since there is no legal mechanism to protect these things, there will be no incentive to be in a business providing them.

Copyright (or whatever you want to call it) is about rights. The right to do with my creations as I please, without interference from others. If I choose to give it away, fine. If I choose to offer my garage band tracks for 10 trillon dollars, fine. I have no right to tell you what to do, and you have no right to tell me what to do. As soon as that concept of right is removed, then neither of us is safe, since I will demand you stop giving stuff away that dilutes a market, and you will demand I start giving it away or just copy it from me and give it away yourself because you believe it has no value or that my time / talent / knowledge invested into my product had no value. If I declare you can't give it away, I take from you your humanity of giving for the greater good, self promotion, or self-acualization. If you declare I can't posit value on and ask a fair price for what I do, then you have taken from me my humanity as you ask me to work for free, and I become your slave. Neither of us wants that. I could spin off into Maslow's Hierarchy of Needs here, but I need to stop and go to work, which is something I do for my customer (my employer) in exchange for fair value (my salary), in which I generate intellectual property, assigned to my employer, with which we create products we believe have value to our customers, and we ask a fair price.

If the argument is to remove

If the argument is to remove any such concepts of protection, no matter what you call this protection, then what incentive does an investor have to create a business model in the first place? If nothing of your company can be unique, then what is the point?

So as I understand it, your argument is that you create some novel business concept, and in order to stop others copying it, you need an extensive set of laws...because if it isn't novel there's no point in setting up the business?

The logical flaw, obviously, is that if there's no benefit in setting up a business with no novel feature to it, why would anyone copy your idea?

Your argument takes a very theoretical view of business, the reality is a lot different. Let me explain:

Firstly, very very few entrepreneurs get into business with a brand-new idea in order to create a company that their kids will inherit. The vast majority are hoping/planning to get bought out by a larger company after a few years.

This is because, Secondly, no-one cares about your new idea for a better mousetrap until you've proved that it's a commercial success. At the point you've proved it's a commercial success, your (potential) competitors can set up a 'me-too' business, or buy you out. For large companies, with a lot of cash, it is much much easier, simpler and cheaper, to buy you out than duplicate your idea.

And Thirdly, counter-intuitively, businesses need competition. A single provider to a market is a monopoly, and there's no 'market'. Having some other provider of the same good or service is what makes it a 'market'. Monopolies are bad for business, especially the business that has the monopoly.

The whole copyright argument is being argued from a distribution point of view because the music and video *distributors* are the ones who will lose out most if copyright goes away. The musicians will still be paid to play music, as they have been for thousands of years, same for actors. The only people who depend on strong copyright laws are the people who made a fortune in the last fifty years from the *distribution* of other people's work. Software authors are no different from musicians in this respect, we will still be paid to write code, because people will still need code written. What they don't need is some bloated distribution company sitting between them and the coder, and that distribution company is what copyright law protects.

Protect your data then

If one wants to protect their data as badly as you seem to want to, then make it a trade secret. In other words, don't make it public so others can copy it! Problem solved.

You know, it may be hard to realize, but many take pride in others wanting to copy their works and make good use of them.

Sharing is good, as some of us learned in our formative years (and others didn't).

GPL is about *continuity* of sharing, Copyright is about denial

That was a well-written and insightful article, Karl.

On the subject of the GPL continuing to operate in a non-copyright-ridden world, I think you might wish to highlight how absurd the pro-copyright stance really is in view of the well-defined goals of the GPL.

The GPL is entirely about two things: the enforced CONTINUITY of access to a shareable work (further sharing cannot be blocked), and the enforced COHESION of that work as a shareable entity (all its elements must be passed on). These goals are so remote from the goals of the Copyright lobby, which is to block such sharing, that there is barely any overlap at all.

Given the above, any legal framework that helps us to ensure continuity and cohesion of sharing will work just fine with a GPL-type license. The fact that the GPL currently relies on Copyright law to achieve the exact opposite of the goals of that law is merely an artificial tactic, and that needs to be highlighted at all times.

Copyright has as its primary (and perhaps only) goal the DENIAL OF SHARING of covered works, which is diametrically opposite to the goals of the GPL. While the GPL would certainly need to be rewritten for a Copyright-free world, that would be easy to do, since its goals are to ensure continuity of sharing, not its denial.

Re:GPL is about continuity of sharing, Copyright is about denial

Thanks so much for your kind words about the article, and I completely agree with you about the need to emphasize how radical the GPL really is compared to standard copyright law.

I'm perhaps less cynical than you about copyright's original goals. It does deny sharing, and this effect is huge and corrosive, but it was meant to do something different: to ensure reliable mass distribution of works, at a time when this was not as easy as copying a file across the Internet. Of course, copyright has been lobbied into a monster far beyond anything its creators would have imagined, and even the relatively mild restrictions they advocated are no longer necessary with today's technology. Nevertheless, I do not think it was a horrible idea when it was proposed — in the eighteenth-century.

But it sure has little to do with the GPL. "While the GPL would certainly need to be rewritten for a Copyright-free world, that would be easy to do, since its goals are to ensure continuity of sharing, not its denial." Couldn't have said it better...

Copywrong

I agree with your larger point - that it's perfectly compatible to support both the abolition of copyrights and open source. Open source is, in a sense, the "best we can do" under the current legal situation. It's a stop gap measure, a response that is only necessary because of the current laws.

However, you fail to assert any type of consistent argument for how and why a GPL-like covenant could and should function under a different legal system. Suppose I create a work and distribute it to you. Do I have control over what you do with the work or not? If I do not, then you're free to modify the code and distribute it in binary form only, with or without DRM. If I do have control, then why can't I forbid you from distributing it at all just as easily as I could require you to redistribute the source? You haven't articulated any principle or theory of copy-control which states why I should have only a limited and constrained control of what you do with the work I created.

The only reasoning I can find in the article is a sort of socialistic(1) principle of "sharing is good, so lets make everyone share." There are lots of behaviors which are "nice" or "good" that aren't (and shouldn't be) enshrined in law. Personally, I don't care to live under a legal system where someone else decides what I can and can't do based on how "nice" or "good" those actions are. I'd much prefer a legal system which protects my right, and yours, to do as we please. Whether such a system includes copyrights or not depends on whether you consider intellectual property to actually be property.

(1) I hesitate to use that word because of the negative connotations it has for many people, and because of the frequent, fallacious charges that Open Source is inherently socialistic. However, it certainly seems to fit here.

You've got "copyleft" wrong.

This is generally a good article but I have to take issue with this point:

The GPL is unusual among open source licenses in that it has a "copyleft" provision: it requires that if you make and distribute a derivative work based on a GPL'd original, your derivative must also be under the GPL.

That is nonsense. All open source licenses, including the non-copyleft ones such as the BSD license, require that derivative works be distributed under the same license as the original one. Under copyright law, only the copyright holder is allowed to relicense a work.

What "copyleft" refers to, instead, is that you must pass along the same freedoms that you received when you distribute a program, modified or not. That primarily means you have to distribute the source code along with the program, including the source code to any modifications you made, so others have the freedom to use and build on those.

- M.D.

Re: You've got "copyleft" wrong.

I don't think that's quite right, M.D.

A derivative work based on an open source (but non-GPL'd) original work is often under at least two licenses: the original license covers the parts that remain original, but a different license may cover the new work as a whole. It is possible, for example, for MIT-licensed or modern BSD-licensed code to be incorporated into a GPL'd program. While the license on the original code is unchanged, of course, the license on the derivative work must still be the GPL.

If what you say were true, it would never be possible to combine code under different open source licenses together to form new programs. Yet this happens all the time: I've both done it myself and had it done by others to my code.

Same licenses required?

Many licenses (including BSD) do not in fact require that derivative works be under the same license. You could in fact take any non-attribution BSD licensed piece of software and re-release it under the GPL. You wouldn't be able to enforce Copyright offenses as you don't actually have rights to the original software package (the BSD licensor does) but by releasing it under the BSD license you're free to do many things with it, including using it as part of Windows Vista if you like.

The GPL is in fact very unique in that it is viral and many opponents of it are very aware of this fact. The GPL 'pollutes' code so that distributing the result requires that it (the result) be also under the GPL.

BSD License

Actually, the BSD license places no such restrictions on derivative works. It merely requires that any derivative works or redistributions come with the text of the license attached. It certainly permits derivative, commercial, closed source, non-BSD licensed products.

No, he got it right. You are wrong.

The BSD license does not force derivative works to also be under the BSD license. It simply insists that the BSD notice be included so that the author is credited. There is lots of BSD code in lots of GPL code and that's perfectly fine as long as the author is credited with the original notice. Hell, there's lots of BSD code in Windows; it isn't BSD licensed, but it contains the original notice.
There are other licenses that act this same way such as MIT and ISC (which is used by a lot of OpenBSD code).

--TimH

Not exactly

Actually BSD doesn't require the derivative works to be distributed by the same license or any other. That's why it's possible to find BSD licensed code in commercial applications e.g. Windows.

This isn't a requirement making the license open source license and there are plenty of open source licenses which permit to distribute derivative works under any license.

SOURCE CODE

You've completely ignored the fact that the GPL forces access to the SOURCE CODE that created it. Without copyright, you'd get a binary, perhaps with proper attribution, but you're completely out of luck if you want to use parts of it in your own program, make changes to it, add-on to it, etc. Lack of copyright could never possibly force someone to do that. Lack of access to source code to some printer driver was the very motivation of Stallman to come up with the GPL to begin with... It has nothing to do with being able to redistribute binaries freely.

Source code, right now, is locked-up as a trade-secret, and has nothing to do with copyright laws. Getting rid of copyright wouldn't change that one bit.

Copyright restrictions and copyright are not the same thing

Mr. Fogel invokes the gods of logic in order to attack Mr. Bulmash's piece on open source. For the most part, Mr. Fogel is right -- the right of authors to control their work is a fallacy, and independent of the right to be credited.

Like Mr. Bulmash, however, Mr. Fogel is unable to step out of the box his convictions construct around him. Mr. Fogel narrows the definition of copyright to a point that is unwarranted and not truly based on firm background.

Copyright is a concept that means what it says: the right to copy. Mr. Fogel narrows this term down further by focusing on current copyright laws which focus on restriction and create a right of control for authors. Copyright, however, is a much more broad term while copyright laws are merely implementations of some form of copyright.

Mr. Fogel assumes that the term copyright itself will lose meaning if we abolish copyright restrictions. For example, he states as follows:

We probably would not call such laws "copyright", since they wouldn't prohibit copying. Even if we did call them "copyright", the word would mean something so different from what it means today as to render Bulmash's arguments inapplicable.

Mr. Fogel misses the point on what copyright means -- the right to copy.

Current copyright law has restrictions on this right to copy -- also known as "copyright restrictions." Mr. Fogel, on the other hand, believes that copyright's meaning are those very copyright restrictions themselves. This is untrue.

If copyright restrictions were abolished, as Mr. Fogel appears to desire, as does the abolition movement, the meaning of copyright would not alter. Abolition would alter the legal implementation of copyrights, but copyright would exist nonetheless.

This misunderstanding of copyright itself calls into question Mr. Fogel's assertions regarding creditright versus copyright. Neither terms exclude one another. Indeed, copyright is a tool often used to enforce creditright. If credit is not given to an author, the right to copy may be revoked.

Mr. Bulmash has strong points to be made, albeit with a lack of true understanding behind the abolition movement and the basic beliefs of the open source movement. At the same time, Mr. Fogel and other members of the abolition movement may be better served through more accurate use of terms. Copyright merely contemplates the right to copy, whereas copyright laws restricting the right to copy is simply an implementation of a type of copyright (right to copy) structure.

Acknowledging the nuances in terms will allow Mr. Fogel and other copyright restriction abolitionists to address the misconceptions of Mr. Bulmash and others more directly. Mr. Fogel relies heavily on the distinction between an author's right of control (which is not copyright, but a form of copyright) and an author's right to receive credit. Mr. Bulmash has a point that copyright laws restricting the right to copy may protect this right to credit.

By acknowledging the nuances in terms, Mr. Fogel will be able to meet this point more directly. While it may be true copyright can be used to protect the right to credit, mainly by revoking the right to copy for those who fail to credit properly, other remedies may be as successful, or even more so, in protecting this right. Civil damage remedies would serve similar functions without encumbering the sharing of information with copyrights. Encumbrances on information in the form of any right can be harmful.

Copyright is not the same thing as copyright restrictions. Abolishing copyright restrictions does not abolish copyrights, it merely changes them.

With respect to Mr. Fogel, my point is that copyright abolitionists are more accurately termed copyright restriction abolitionists, and their use of the term copyright is inconsistent with its true meaning.

Copyright was conflated with the right to privacy

For a book that debunks the myth of copyright as a right rather than a commercial incentive of exclusive privileges, see my review of Rethinking Copyright by Ronan Deazley.

An author has a right to publish (determine whether/when their unpublished work is published), but this right to control distribution of their private work ceases after publication, and becomes a state granted privilege. However, the fact that the former is a right has been used to pretend the latter is too - a right to suspend the public's cultural freedom, the artistic freedom of any other artist who'd like to build upon the art of others.

Why have we only just noticed this unethical suspension of our liberty for the benefit of printers? Because it's only now that we all have printers (rather than just a few corporations) that we're discovering we are not free to build on each others' work.

Re: Copyright restrictions and copyright are not the same thing

When you say "copyright" today, virtually everyone interprets it in the sharing-restrictive sense. When Greg Bulmash uses the word, he knows full well that's what his audience means by it, and he knows that's what they'll think he means by it. It is this meaning which I'm saying the GPL does not depend on.

My whole point is exactly that other kinds of law (tort law, contract law, different statutory law) could be used to enforce the GPL's sharing provisions, if we wanted.

-Karl

you want authors to make their source code available

You could abolish copyright completely and charge a 25% sales tax on any work distributed without "source code" being submitted electronically to the Library of Congress. It'll have much the same impact as the GPL.

But I'd prefer merely that copyright be reserved only for those who submitted their source code. It'll be a stronger incentive to provide source code its the only way to get any copyright protections.

Supply is, in fact, diminished

The problem with the 'supply is not diminished' arguement lies in the reference of the word supply. Of course copying a digital work does not diminish the supply of that digital work.

However, it does greatly diminish the supply of opportunity (real or perceived) of the work creator to benefit from the creation of the work. This is compounded when a large entity copies the work against the wishes of the work creator as a way to enhance the standing of the large entity. Numerous small entities (people) can also have the diminshing effect on a work creator.

So, the real question to ask before copying is why you have the right to tell a creator that they don't have the right to keep their works from you. Why does your right to know (use, distribute, etc.) trump someone else's right to protect or conceal?

Re: Supply is, in fact, diminished

You ask: "Why does your right to know (use, distribute, etc.) trump someone else's right to protect or conceal?"

Well, that's the key question, except that "protect" is maybe not the right word ("protection" from what danger, exactly?). I think "restrict" is more accurate.

In any case, to answer the question:

Our right to know (use, distribute, etc) should trump others' right to restrict or conceal when it's a better outcome for society. After all, in theory copyright exists only to benefit society anyway. If it's mistuned, then we should change it. It hasn't been around forever, after all. We invented this whole idea that there can be a single point of control over copying and use, and we invented it fairly recently at that.

If attribution were required to be preserved (while copying were permitted), then how would a "large entity" reproduce a work without proportionally enhancing the standing of that work's author? I'm not sure quite what you're worried about there...

In your parenthetical aside "(real or perceived)", one of the main points of this site is that the "perceived" applies far more often than the "real" anyway :-).

-Karl

Agreed. The real question is

Agreed. The real question is does A's right to know trump B's right to conceal? Our system today assumes that B's right trumps A's right, because that is how property works. (in Proudhon's terminology, [Propriété != Occupation]; ie. you can "occupy" a bike, because you use it and use it as your own, but you can't "occupy" a hundred bikes; you can only own them, and at the expense of the bike-less.) House owners' right to sit on vacant space trumps the homeless' right to a place to live. Food owners' right to burn food (to keep prices up) trumps starving people's right to eat. Pharmacorps' right to profit trumps "underdevelopped" people's right not to die in terror and agony. In short: the rich people's right to be rich trumps the poor people's right to get their base needs satisfied, and even to live. The stakes are lower, at least so it seems, regarding copyright. The principle is the same. Read Eben Moglen's "dotcommunist manifesto" to get a clearer view of his (or, as he actually quite tastelessly puts it, "our") final goals. Then you'll get the point that GPL is strategic. Slavery is murder! Property is theft!

Disclaimer: not necessarily aiming this at you -- you may well support private property right in ideas. More siding with the author; you can well support GPL (for now) and still be against the current formulations of copyright laws, working for a set of laws based on other principles.

Intellectual Monopoly Rights

So I was thinkin' one day
And had this bomb ass idea
So I set up shop
And sold it away
But only if they can pay
Now I live elevated
While the rest squalor
Scraping together
The change they got
To enjoy my creation too
Eventually I die
And with it my thought
Till a suit takes over
To withhold this idea
Ransom from the human race
What a disgrace

So I was thinkin' one day
And had this bomb ass idea
So I gave it away
Completely free
To any that agree
Now I live elevated
While the rest rise up
To a level at least the same as me
Eventually I die
And my thoughts live on
So society takes over
Forever spreading this idea
Throughout the human race

Why must we be at the mercy
Of the prices they set
For the ideas
Anyone eventually would come up with
If it's really good
It'd take off on its own
Best ideas prosper

Didn't Richard Stallman oppose software copyrightability?

I keep thinking I remember that, back in the era in which it was controversial whether copyright would apply to computer programs at all, it was Richard Stallman's view that software should not be copyrightable (because copyrights on programs would be used to enforce licenses, "most" of which, in the words of the GPL's preamble, would be used "to take away your freedom to share and change" software). I don't have a source for this, and I wish I did. Maybe it's in Steven Levy.

In that sense the GPL "uses copyright, to paraphrase Toby Milsom, to counterfeit the phenomena of anarchism", as Eben Moglen wrote, because it tries to mimic (with respect to software that gets licensed under the GPL) what the world would be like if software were uncopyrightable.

There is still the source code vs. object code distinction -- if software were uncopyrightable it seems clear that at least the existing proprietary software industry would try to make heavy use of obfuscation of binaries. One point in favor of this is that portions of the proprietary software industry have already begun to use activation and tethering of obfuscated binaries to enforce their licensing policies in situations where they can't (or choose not to) use the legal system to enforce their copyrights in their software. If software were completely uncopyrightable, TPMs might take on a larger role in "protecting" the software from uses that users wanted to make.

Even though obfuscation might be easier to reverse if it were explicitly legal to reverse engineer for the purpose of defeating DRM and making unauthorized copies, it's plausible to think that some proprietary software developers would continue to enthusiastically embrace it in a world without software copyrights, whether because they believed they were entitled to copyright-like control or merely because obfuscation would appear to be their last, best hope for maintaining such control. And copyleft policies to prevent free code from being included in proprietary software would, in that scenario, be quite difficult to enforce!

I can imagine a tactical problem confronting a free software advocate who is completely neutral about the existence of copyright but uncompromising in the view that all software should be free. The tactical problem is that abolishing copyright significantly increases the pool of free or semi-free software, but also does away with the enforceability of copyleft as a tactic for fighting the use of obfuscation. This is a tactical issue, though, not a definitional issue.

The argument that you're getting into obviously arises when free software advocates who don't oppose copyright are wrongly accused of opposing copyright. They naturally want to find an effective way to respond and to show that they support copyright and free software. Pointing to the fact that free software has thrived under copyright-based free software licensing is one fairly effective way of doing that. Unfortunately, this argument is taken too far if it ignores the likely historical fact that free software as an organized and politicized activity also arose from concerns about what the copyright system, as it was starting to be used, would do to users' relationship to developers.

- Seth

Re: Didn't Richard Stallman oppose software copyrightability?

This is a very important comment parent made. Let's look a little more carefully at trade secrets that negatively impact interoperability by competitors (and the implied monopolies if we don't pressure for these blueprints). The key is that we are talking about trade secrets of blueprints and the effects this has on interoperability and competitiveness when one side does not share these blueprints but competitors do. Competitors share because competitors are small in size and resources. Really, competitors share because the products are far more easily created and improved by having access to blueprints (source code); thus, sharing among collaborators will happen at the level of blueprints (as well as at other levels). The group that shares contributes very directly to society and to further collaborative innovation by others. The problem is that not sharing such blueprints creates real impediments to competitors that want to interface with you at the binary functional level. Software is very complex, and it is too easy to have deal-breaker problems arise because of "tiny" errors or misunderstandings in unknown or modified or underspecified semantics of the interfaces due to complex hidden details present inside "black boxes". As components get attached to components, the little failures can cascade into huge unacceptable failures at the macro level. This interoperability difficulty can even be purposely made worse to an arbitrary degree for anticompetitive reasons to thwart interop by a vendor controlling a market (a monopolist) and wanting to hold ground and/or grow outward from there into adjacent markets. Notice that software is plagued with trade secret based monopolies. [We see this with problems of similar featured apps in failing to exchange many types of complex documents while achieving faithful sensory renditions and faithful embedded scripting behavior.] It's important to share blueprints on the opposite sides of interfaces to help ensure correct functioning across those interfaces. So trade secret based monopolies create real problems for society. Software is a social product that necessarily requires cooperation among many diverse components. Imagine if we did not have standards in architecture, civil engineering, across most physical products composed of many parts? To get analogous interoperability standards for software requires detailed blueprints because software is very complex and requires high precision interfacing. Relaxed "specs" frequently won't do and can be abused arbitrarily by a dominating player. It just so happens that copyrights can be used as leveraged to help promote the revealing of trade secrets where incentives would otherwise not exist. This is coincidence, but do note that we are talking about different types of monopolies. We leverage one potential monopoly in exchange for a less cooperating entity dropping the other type of monopoly. In the artistic world, we might consider that some animations or other multimedia features might incorporate many source components that get processed and built into the final product. For example, pictures can be composed of many components layered together to form a single "flat" movie frame, and 3D models that help generate the final product, if not known, can take much extra time to reverse engineer simply from a final movie. In these cases, it is much easier to recreate varied scenes, reuse characters, or simply extend the scenes when you have the internal models. This "source code" greatly speeds up time to market and the accuracy of renditions across frames showing movement and across related films. Another example would be creating objects using scalable representations (eg, as is done frequently in building flash videos). However, it appears the negative impacts of trade secret in these cases are much less damaging to society than with software, at least so long as artistic works tend not to require interoperability with other relevant works. Over time (especially as features become very complex (including software)), we will find the same problems with artistic works as are present in the software interface scenarios. So we see that source code has a high value but, because it is not the final product, it can be kept as a trade secret to gain advantages over those that make their source public. Here copyright licenses can throttle reuse of efficient and valuable source code by aggressive (monopolist) competitors to cases where the competitor also reveals source code back. The article and discussion here http://questioncopyright.org/balanced_buyout (eg, see my comment) explains how we might start to scale back on copyrights by pieces. We can, however, preserve copyleft protections as long as necessary. Copyleft is a check on trade secret monopolies since reverse engineering can be very difficult (even very very very difficult) but would be necessary when components from competing vendors would be required by that industry to interoperate precisely. We could instead outright abolish copyrights, patents, and then also trade secrets in cases where interoperability is required and mere interface specifications are likely to come up short. We could instead only require trade secrets be dumped by monopolists. - Jose_X

The GPL is a license people

What I think is being missed here and is quite surprising is that the GPL DOES NOT *depend* on copyright law. The GPL is a LICENSE. It is an agreement by the creator of the works and the recipient/end user.

I can create my own license and say anything I like within that license and the implicit agreement is that as a recipient of that software you must abide by those terms or very simply not use the software. I have that right as the creator of the work and it is a legal agreement not dependant on copyright law. I could say for instance: "Everytime you start this software you need to stand on your head and sing "Daddy Cool" out loud. If you don't do this then you are not allowed to use my software as usage of this program is dependant on following my instructions." This is contract law, not copyright law. This is what the GPL and any other software license, proprietary or non-proprietary is based on.

On top of this as part of the copyright law argument everyone puts in the basic point: As part of this agreement you will not make copies of this software without our permission and here are the rules to get our permission: blah blah blah.

I feel kfogel and gbulmash both miss the point. The GPL is about freedom for the user, a universal right you could say to be "free from tyranny" while proprietary licenses are often designed more to keep the user locked into that companies' product (at the expense of the user) than protecting any supposed copyright. The GPL is about being free to do with something you paid for (or sometimes didn't pay for but got in a legal way) whatever you like. Just like when I buy a car or a pair of shoes or anything else, I can do what I want with the car. I now own it and can therefore do with it what I like. I do understand that copying does not take away someone's property. But that is not the concept that is important here. The concept that is important is that once I have paid for an item and get home I can do whatever I like with that item.

The difference between GPL and proprietary is:
1. GPL - you can do whatever you like with this software but because you are building on other people's work you have to share your changes if you distribute. Just like you based your work upon the changes of others.
2. Proprietary - if you change anything you have broken the licensing agreement and must stop using the software immediately. If you distribute we will put you in jail.

And that is the main issue here. The "copyright law issue" is to me just a smoke screen to label open source advocates as a bunch of commies and that is why this issue keeps rearing it's head and why it won't go away. The majority of the GPL versus proprietary (i.e. Microsoft) issue is about freedom.

The other issue that this is about is software quality. It so happens that the open source method of software development is resulting in higher quality software than proprietary companies can produce with their closed/secretive methodologies. This is not dependant on any judicial law, maybe it is a law of nature or something but the proprietary companies are struggling against this too as the two seem to go hand-in-hand: freedom and quality.

But Microsoft and any other company fighting this losing battle will try with every marketing dollar in their budget to ensure that in the press the argument is NEVER about freedom and quality.

Re: The GPL is a license people

Not quite, I think. You seem to think the GPL is based on contract law, but (as I understand it) that's not the case.

The GPL is a copyright license, which means that its enforcement mechanism is, currently, copyright law. The way the GPL operates today is that GPL'd software is copyrighted, and would be subject to the usual prohibitions against sharing, except that the GPL states that if you abide by certain conditions, you are permitted to copy and make derivative works.

If you don't abide by those conditions, but continue to distribute, the legal penalties for that are not based on (say) contract law, they are based on copyright violation. You didn't break a contract, you violated a copyright. That comes with its own special body of law and precedent, and you'd probably want to hire a copyright lawyer — not a contract law specialist, not a criminal law specialist, not a tort law specialist — to defend you.

(This is just my understanding from working with the GPL and related licenses for 15 years. I'm not a lawyer, though, and would certainly appreciate any actual lawyers sanity-checking my points above.)

Now, what I was saying in my article is that copyright law is not the only possible method of enforcing GPL-like behavior. So in a sense, you're supporting that argument by asserting that the GPL is enforced by something other than copyright law today. Although I think what you state isn't true at the moment, something like it could be true in the future, and that's why there's no contradiction between opposing copyright and supporting the GPL.

-Karl Fogel

Re: The GPL is a license people

Karl is right. The GPL relies heavily on copyright law, not contract. The essence of any contract is consideration, i.e. the price paid for a promise. When using software governed by a licence, there need not be any consideration paid to the licensor by the user. Copyright protects the rights of authors (or developers) to use, distribute (or re-distribute) and modify their work. One who wishes to perform one of these tasks requires the permission of the copyright holder. A licence is a grant of permission by a copyright holder to view, use, modify, or distribute a particular body of work for which the copyright is held.

The GNU Project has a good explanation of how copyright is used, which also (I think) explains why copyright law is presently important for open source and free software licences.

Copyright law is creatively used to secure the rights of the general community to use, modify and redistribute software as opposed to protecting individual proprietary interests. As technology evolves and the internet becomes even more ubiquitous, the law will need to adapt to reflect the needs and desires of the community. What we see at the moment is a tension between corporate (pecuniary) interests protected by copyright law and a push from various community sectors to override this law, either in the interests of software quality, information freedom, or even piracy.

My personal opinion is that copyright law will continue to protect the moral rights of authors (e.g. rights of attribution and against derogatory treatment), but evolve to formally recognise licensing arrangements such as the GPL. That being said, traditional copyright law will continue to protect the rights of authors. As such there will be something of a split in the two bodies of law, i.e. that dealing with traditional copyright, and that dealing with open source arrangements (it need not be limited to software). Whether this second body of law could be considered a subsection of or completely different from copyright law is a matter of debate. What is clear is that the legal basis for the protection is important, as it will determine what principles the law will adopt and what interests it will aim to protect.

Daniel

Implications of radical copyright

I know this is a rather old article, but one that is still relevant today. I actually came across this while looking at A Guide To Singapore City. Essentially, this is a content directory for people in Singapore to help with where they are. Something that I would find very useful as a foreigner there. The full info is not up on the site yet, but when it will be, there will probably be hundreds of different information sources that will be quoted and maintained. If the radical idea of copyright is correct, then any revenue that sites like this generate would by law be required to distribute part of their earnings to every single place mentioned on the site.
In fact, in such a case copyright prevents promotion of creative and helpful work, the complete opposite fo the stated intent of the copyright! Keep up the good fight!

Re: Supporting Open Source While Opposing Copyright

But it would be a misnomer to call such protection "copyright" law, because it wouldn't have much to do with controlling copying. It would be a creditright, because it would simply enforce proper crediting.

In EU you have copyright law which covers both moral (close to what you call creditright) and material (distribution) rights. So still both is under the same name, but at least distinction is official and people understand it easier this way.