You Can Oppose Copyright and Support Open Source

kfogel writes "I'm submitting 'Supporting Open Source While Opposing Copyright' as a response to Greg Bulmash's piece from yesterday. I think there were a number of flaws and mistaken assumptions in Bulmash's reasoning, and I've tried to address them in this rebuttal, which has undergone review from some colleagues in the copyright-reform community."

Not all open-source is the same

[kungfujesus]

You can support BSD without supporting copyright, as it doesn't take advantage of many copyright protections. You can't support GPL without supporting copyright, as it would be unenforceable without copyright.

do we really need to hear this again

[Anonymous Coward]

Richard Stallman puts it so much better. I disagree with a lot of what Stallman says, but the man has thought about his message and tries not to waste words. I respect that.

I tire of the "here are 10-15 different arguments on my side, if any of them sticks then I win" style of debate.

Re:Abolishing copyright abolishes GPL

[Bronster]

No, but you could theoretically build a new GPL on top of something which wasn't copyright but provided the protections that the GPL needs. Copyright is not the _only_ set of base rules on which a GPL could exist, it's just the current one.

Re:Not all open-source is the same

[Whiney Mac Fanboy]

You can't support GPL without supporting copyright, as it would be unenforceable without copyright.

Bullshit.

It's possible to think that copyright is wrong, but accept the GPL as way of enforcing sharing while copyright exists. That's not an opinion I hold, but at least some seem to.

Different brands of freedom?

[RalphBNumbers]

Quoth TFA:

imagine if we had laws that did away with most prohibitions against sharing, but that enforced crediting and permitted authors to enforce GPL-like provisions requiring sharing.

So basically it seems like this guy doesn't want to do away with copyright, he just wants to change it so that any non-GPL-style license is prohibited.

The previous article suggested libertarian style freedom (free as in free to shoot your neighbor if he steps on your land), while this guy suggests communist style freedom (free as in "show your papers to get in line for free bread comrade").

the real issues

[bcrowell]

It's a little pointless arguing what copyleft would be like in a world without copyright, because we're never going to live in a world without copyright.

Let's focus on what we might really be able to achieve:

1. Under the Sonny Bono Copyright Term Extension Act [wikipedia.org], US copyrights will start expiring again in 2017. We need to make sure that when that day comes, there isn't yet another copyright extension.
2. We need to work against software patents, business method patents, and abuse of the patent system. We need to work for institutional change in the US patent office so they'll start rejecting completely bogus patents.
3. We need to repeal the DMCA.
4. We need to work to keep fair use legally healthy, and prevent it from being more and more circumscribed and forgotten.
5. We should work to change the law so that orphaned works can't remain copyrighted for a century, during which nobody is allowed to publish them.

Miss the obvious

[Spazmania]

Both of you miss the obvious.

Bulmash misses the point that without copyright, I can find the appropriate place in your machine code to insert my functions and then distribute the modified versions to my friends. That's 90% of the GPL right there... And the right redistribute everything is probably more valuable than being able to see your sloppy undocumented source code anyway.

Kfogel misses the point that without copyright the computer industry would have grown an entirely different direction from way back in the '70s. Without specific protection for the software component, companies would have tied software to the hardware. Think: dedicated Pac Man machines in the arcades. You can copy the Microsoft Office ROMS all you want, but it uses the registers and I/O devices only present on the patented Microsoft Office machine. No *general purpose* computers... Copyright is what made the general purpose computer sociologically possible. That world, by the way, would suck.

Re:Different brands of freedom?

[shark72]

"So basically it seems like this guy doesn't want to do away with copyright, he just wants to change it so that any non-GPL-style license is prohibited."

You can see the appeal here. All the free music and movies you want, but nobody gets to mess with your FOSS project in a way you don't want. Since most of us are coders, and not musicians or moviemakers (or, we're more likely to have friends who are the former, not the latter), it's an attractive idea to many Slashdotters.

Re:Abolishing copyright abolishes GPL

[bstadil]

There would be little point in enforcing the GPL if no copyright existed. You would have all the rights to use whatever code you wanted or could get hold of. Traditional "stealing" would be a perfectly legitimate way.

Sigh

[DTemp]

You can support copyright and NOT support ABUSE of copyright. Its the ABUSE of copyright that pisses people off.

As a professional photographer, if I take a good photograph, I don't want someone putting my picture up on their website and saying someone else took the photo. This is NOT me abusing my copyright.

If, however, a newspaper ran my photo on the front page, but I refused to allow anyone to cut out the photo and hang it on their refrigerator, and went from house to house inspecting refrigerators... THAT would be abusing my copyright. Sound vaguely similar to the MAFIAAs?

I hope you see the difference. Copyright is actually a good thing when not abused.

Not at all.

[EmbeddedJanitor]

The difference between BSDL and GPL is that GPL forces other (linked) code into the open. You need some sort of property rights (ie copyright) to stake a claim on your code and assert this bargaining power. With no copyright you would not have rights and thus not have the bargaining power and GPL would be dead.

Re:Not all open-source is the same

[Sam Ritchie]

I think GP's point is valid: supporting both GPL-style sharing & copyright abolition is inconsistent, as they're mutually exclusive - if you're a genuine copyright abolitionist, you'd support BSD instead. I don't think it would be possible to enforce the particular flavour of sharing currently enabled by the GPL with no copyright. TFA appears to propose some sort of nebulous copyright replacement legislation which would enforce GPL sharing - I might be missing something obvious, but it seems likely that it would just be copyright by a different name.

I suspect the intention would be for the copyright-that's-not-actually-copyright to tip the scales in favour of consumers, not-for-profit distribution etc, but exactly the same thing could be accomplished via copyright reform, so I'm curious as to how this approach could be copyright abolitionism at anything more than a technical level.

Just what do you mean by "oppose copyright"

[Anonymous Coward]

Sorry, but am I the only one who gets a little stuck on the part, "You can oppose copyright...."?

Yes we've all seen Megacorp decide to use someone's code and then incorporate it into their program. Or just use something in a commercial sense when it's clearly limited for personal use only. We've seen companies take advantage of contracts where anything an employee creates becomes fair game.

But likewise, I have a problem with those who believe that nothing should be copyrighted and we should just all share and share alike. Well, I'm totally for giving back to the community, but I don't find anything inherently evil about wanting to get paid for your work either. I think that also it doesn't help the open source community--it makes it appear that open source = long-haired, pot smoking communists to anyone outside the loop. It also makes businesses jumpy as to what remains theirs vs. what becomes public domain should they tinker with the code.

I do think there should be copyright reform. Just like you can't copyright a particular group of words...such as a title, you shouldn't be able to take a code snippet and declare "it's mine and mine alone." However, if you write a full program--just like if you write a story or a book--you should be able to copyright it.

Frankly I'd rather see something on, "You can support open source and copyrights at the same time."

Re:Sigh

[spud603]

You may have misread the article:
kfogel argues the distinction between "the right to be credited for a work, and the right to control distribution of that work." So under his paradigm, in a world without copyright folks would still be breaking the law for posting your picture uncredited or miscredited, but they'd be allowed to post the picture on their site with your name under it. I'm not sure if this would still bug you, properly credited, but that's the gist of TFA.

Seems to be a misunderstanding

[DaveAtFraud]

As with a lot of "there is no such thing as property" groups, QuestionCopyright.org* seems to not understand the purpose of copyright. Copyright is a legal construct created to encourage authors and other creative types to make their works public (e.g., published, performed, broadcast, etc.) by letting them retain legal control of the work. The import point is the person who creates the work gets to control its use.

People are motivated to create such works for any number of reasons. Some want the money that comes from charging for copies or viewing a performance, others just want credit. In any case, copyright is what lets the author determine who can access his or her works and under what terms. If we, as a society, don't give authors this control, there is a reasonable likelihood that a number of people who would otherwise create such a work will not because they don't want to see the fruits of their labor taken advantage of by others in ways they don't approve.

This brings us to open source software (OSS) and copyright. Some people license their work under a BSD license, some people put their work into the public domain, some license their work under the GPL and there are a number of other possible licenses. That there are a number of different OSS licenses and developers freely choose which license to release their project under means that the developers are making a conscious choice as to what kinds of restrictions they want on what they have created. This brings us to the GPL and similar licenses.

The GPL isn't just about attribution. People who just want attribution publish under a BSD license or something similar. The GPL is about creating a body of free software that stays free. As a number of court cases have demonstrated, there are all too many people out there who are more than willing to abscond with GPLed source for their proprietary products. Copyright law is what gives the GPL teeth to prevent this.

You can have free software without copyrights but it's going to be "free as in beer" software. Unfortunately, just like with beer, when the beer runs out, it doesn't matter if it's free. You still can't have any. If people aren't willing to develop without some level of control of the work after it's released, there won't be much free software. Copyright and the GPL means that at least some software will be "free as in speech" and, chances are, developers who continue to contribute to what they see is a greater good.

I guess I should rephrase what I said and say that you can have free software without copyrights but just not for very long. Lots of developers won't put up with having their work taken advantage of and will simply no longer create. Thus, the argument comes back to where I started, protection of an author's work is what incentivizes an author to create. Even if that incentive is just recognition by the developer community and knowledge that what they have created will stay free.

Cheers,
Dave

* I will give them a point for at least being philosophically consistent. Once you grant anyone the right to restrict the use of a creative work then it becomes difficult to draw a line as to when a restriction is benign or even beneficial (e.g., the GPL) and when it's not (please remit $0.25 (aka, two bits) to me for enjoying the above discourse).

Re:Not all open-source is the same

[timmarhy]

so your claiming the BSD license isn't any kind of copyright? i bet there's a few lawyers over at berkly that disagree...

bottom line people. copyright is not bad. america's copyright LAWS are bad.

Re:Not all open-source is the same

[lewp]

Many folks feel that, while copyright is altogether a bad thing, as long as it does exist we should make the best of it by forcing commercial entities -- who grouse about stronger copyright legislation being needed to protect business/"innovation" on the one hand, while shoveling BSD/MIT/Artistic/whatever-licensed code into their products as fast as they can on the other -- onto a level playing field.

Put another way, while you may want to get rid of copyright altogether when you can, if you are writing code now, you might choose the GPL because you don't want your code to put money into the pockets of the very people who will likely be fighting against you for copyright reform/abolition. Once copyright is gone, everybody has to "fight fair", insofar as anyone can be as "dirty" as they want with respect to using others' code without their sanction.

I'm not one who has strong opinions for or against the GPL or BSD -- I see the logic on both sides: so you can choose to live as if there were essentially no copyright, the BSD way, and help your "enemy", or turn the law against the people who use it as a cudgel with the GPL -- but most GPL advocates I have talked to seem to be more of the mind that "I'm not going to let my Open Source code contribute to the bottom line of the very people who have forced us into this proprietary hell in the first place", rather than "I want to 'protect my innovation' by taking advantage of copyright law." More simply, it seems to be a defensive choice more than an offensive one.

Either way, there are people both for and against copyright who choose both licenses regularly. I don't think, ultimately, what you feel about a world where there is no copyright has much to do with what license you choose for software right now. Most projects seem to choose their license with the practical considerations of the system we have in mind, rather than what they might like to see in the future.

Re:Seems to be a misunderstanding

[civilizedINTENSITY]

You left off the all important "for a limited time." Copyright wouldn't be such a problem if it lasted for 6 months to a few years, and source code had to be deposited at the time you applied for the copyright (to then be made public.)

Re:Not all open-source is the same

[Bill_the_Engineer]

The GPL would not be necessary if copyright didn't exist. The GPL relies on copyright only to propagate itself. Why would you need a viral license if everything was in the public domain?

Maybe because we wouldn't be guarranteed access to the source code.

Re:Not all open-source is the same

[smartr]

Neither BSD nor the GPL give a consistant vantage of what a copyright free world would be. The GPL portrays a more idealistic world free of copyright, this is to say people should provide source code for programs. If one was to apply this to the music industry, it would be consistant with forcing you to provide all the individual tracks used to make the music, and force those who wish to distribute new songs all the tracks they used to derive a new song. For the GPL, if you were to get rid of the open source clauses, eliminate any possibility of locking it down with any DMCA type theft, you would in essence have something closer to what it means to be free of copyright. The problem with BSD is that someone else can take your code and then not allow you to redistribute the portion of software they added. So if you're a copyright abolitionist, BSD is closer to putting the code in public domain rather than emulating a copyright free world. On the other hand, the GPL does open a door in terms of opening one's eyes to the needs of copyright reform.

To me, copyrights and patents are blatently contrary to the 1st amendment of the US Constitution. I suppose the better question is if this blatent contradiction of government power is a completely negative thing. In essence, it is a regulation on the free market. You can still sell ideas without copyright (as is with GPL software). What you can't do is have an exclusive right to what people do with your ideas. I think this might discourage the disclosure of some manufacturing processes - particularly when dealing with patents. Last I heard, hacker ideals and reverse engineering makes it rather impossible to distribute software and hide a manufacturing process so to speak. The only real use then for patents in software in a free(er) market is to share information that would be held in a server black box (perhaps the old ibm mainframe model). Idealy, patents should not apply to any software being distributed widely.

sure..

[danielk1982]

The author is playing with words. At the end of the day a viral license like the GPL cannot exist without laws that acknowledge the "specialness" of intellectual property. You can't GPL a hammer.

>Imagine if we had laws that did away with most prohibitions against sharing, but that enforced crediting and permitted authors to enforce GPL-like provisions requiring sharing.

Considering that copyright law has no prohibition against sharing (after all, releasing your work as creative commons is as simple as cut-pasting a line of text) and thanks to GPL and similar licenses, copyright can have provisions to enforce sharing - I think I can imagine a world such as this - we live in it. What the author is arguing is that every work should be released with a mandatory GPL-like or maybe Creative Commons-type license.

>Thus, to say that the GPL depends on copyright is like saying that reading depends on scribes.

No.. the GPL is a license tested in court and found wholly within the realm of current copyright law.

>The basic argument of copyright abolitionists is that people should be free to share when sharing does not result in any diminution of supply.

I understand that argument even though I don't agree with it, but there's another point here. Is "free to share" the same as "forced to share"? After all, people are free to share MIT licensed code, but are forced to share GPL licensed code (provided that they made changes to it and distributed the binary .. yadda yadda..). The former doesn't need any copyright law, the latter certainly does. I think "copyright abolitionists" are trying to have it both ways here. The author certainly looks like a guy who is trying to reconcile something like the GPL (which I'm sure is perceived as a very good thing in the circles he hangs out) with his ideological beliefs about copyright. At the end of it all, it comes off as a clumsy argument.

Re:Not all open-source is the same

[Daengbo]

I understand you, but disagree. If there were no copyright, then I could take back from anyone without asking, much like the GPL. I could decompile and use that source however I wanted. BSD works which have been closed under copyright don't allow that.

See my post [slashdot.org] from the original story. RMS only created the GPL because there was copyright. If there hadn't been copyright, he wouldn't have needed it.

Re:If you are against copyright,you SHOULD oppose

[iamacat]

Every law is about forcing people and every law except those concerning violence, global destruction/environment damage or close personal possessions is optional and should only be passed if it benefits most people. If I am forced to accept copyright, the copyright owner should have some obligations in return.

Copyright law under pins everything

[OdinOdin_]

Copyright law under pins all legal protection over the rights on a piece of work. By attaching Copyright to a piece of work you are also staking a claim to ownership to be able to then license the use of the work from that legal vantage point.

The concept of "Public Domain" only exists from the vantage point of the original Copyright holder accepting continued legal liability for any future plagerism claim that may occur in relation to that piece of work (by puting their name to it); but then explicitly granting a free for all license on its distribution and use. There is no such entity as an "anonymous Public Domain" piece of work, since if no one stakes their claim to ownership then its legally possible for anyone to make that claim (as Mr Anonymous won't be able to defend himself in a court of law).

Why is "Copyright law" a bad thing for society, it seems a very passive law that grants the creator rights over ownership of a piece of work. From that legal vantage point the Copyright holder may do anything / license anyway they choose, being the "Copyright holder" they are granted that power by law. It makes no sense for any creator of work not to involve themselves in this process, since its costs them nothing and grants them everything.

Re:Food fight!

[heinousjay]

Clever turns of phrase seem to be about 90% of the anti-copyright toolkit. The other 10% is wishful thinking.

Re:Abolishing copyright abolishes GPL

[kfogel]

A lot of the responses say this same thing; I'm replying here, but this reply could apply equally well to many of the other responses.

The whole point the copyright abolitionists are trying to make is that it is not necessarily good that an author be able control the distribution and use of their work. I know that seems unbelievable, almost immoral, to many people, and yet it is how creativity was for most of human history. Open source pretty much works that way now (it's the infamous "right to fork", even against the author's wishes).

The abolitionists are perfectly aware of what copyright law *is* today, they're just trying to change that. I'm not sure why this is so hard to understand: there's a law, some people don't like it, they try to change it. That doesn't mean they don't understand the law, it means they *do* understand it but want something different.

That's not possible

[EmbeddedJanitor]

And that is going to be Open Source? How? Requiring signatures and, essentially, NDAs, would make this not at all like the GPL. It makes the code private.

You'd end up essentially saying "You are obliged to both freely distribute this code and keep it secret" which seems a bit of a challenge. Frankly I think your idea is broken.

It is only copyright law that allows us to publish the code and defines the terms of use at a level that suites the copyright holder. This allows us to have various licenses.

Without copyright the writer has no rights and there are only two levels: secret (proprietary) and published (BSDL-like use as you wish).

Copyright is necessary

[kalidasa]

Without *some* kind of copyright protection, there would be no financial incentive to create content, and we'd be subjected to a whole world of reality TV and groupsourced "literature" and wikipedias - or all premium content would be "members only" and something like copyright would be enforced on a case-by-case basis with individual contracts that would have even worse terms than existing copyright laws. The problem is that copyright has been perverted into a dead hand; we need to reform the terms of copyright, not eliminate it. We also need to reform patents.

Re:Not all open-source is the same

[evilviper]

You've just made the exact point that the article is refuting.

The article is completely confused, and simply, completely, wrong.

It's trying to refute an article that was, in fact, correct.

If you oppose copyright, but can't do anything about the existence of copyright, you can at least put stuff into the public domain without allowing someone to wrap it up in copyright and resell it. That's basically all the GPL does,

Nope. The GPL doesn't just allow copying of binaries, it forces you to release your SOURCE CODE as well. THAT is a world of difference, and something it seems most everyone has missed in both (ranting) discussions.

Without copyright, you'd be able to copy binaries all you want, but you'd never be able to force someone to release the source code they used to create it. NEVER.

A binary is pretty useless if you want to create derivative works. You can only make the most basic modifications to binaries, without access to the source code. You can't port it to another platform (Windows -> Linux), you can't port it to another architecture (x86 -> PPC), you can't use bits and pieces of it in your own programs... etc. etc.

The GPL absolutely requires copyright restrictions to be able to work, at all. Otherwise, it just becomes the BSD license.

HA HA OH WOW

[Ayanami Rei]

You really didn't read the article, did you. You read it up until the point where you confirmed the position you thought it was taking, and then assumed the rest to be bollocks or whatever.

THE POINT was that the GPL would need to be changed if copyright laws were changed. The spirit of the GPL (Cohesion and Continuity, per the article) would be enforced by other clauses that would be created in light of whatever law takes the place of copyright, again per the article, "... be enforced using laws so drastically different from our laws today as to be unrecognizeable".

His position is that we can't just get rid of copyright, but we would have to replace it with something more modern. Something 21st century. Something that can be used to prove right of authorship and prevent plagaristic forms of derivative works, without limiting scope of distribution by the public, by default.

And the GPL would have to evolve to fit in that environment.

Re:Food fight!

[iminplaya]

You still aren't getting it! Without copyright there can be no restrictive licenses in either direction. There would be no "can't share/must share" rules. GPL will be absolutely superfluous, which is fine. Everything goes into public domain once it is released, and it will be released if it is to be used at all. So there will be much less of the hoarding you see today. We have the security of knowing that more than one person can come up with similar ideas. Amongst those people, some are more than willing to share, and the rest can do whatever they want. Everybody will be better off, except the greedy ones who always want more for themselves exclusively, seeking unfair advantage over the rest by putting a gun to our heads while saying, "don't touch this".