Posted by David Post:
Free Software and Copyright Law:
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238164855
Yesterday I attended a talk given by Richard Stallman here at Temple,
on copyright law's increasing dis-utility (and Stallman�s proposals
for reform of that law).
Stallman, needless to say, is [1]a fascinating character. He�s already
a major figure in the history of computing and computers, and it may
turn out that he�s a major figure in the history of the production of
creative works more generally � time will tell about that. Twenty-five
years ago, he had a ridiculous � borderline insane, really � idea:
[2]�free software� ("free," as he takes pains to remind us, in the
sense �free speech,� not �free beer�). Large numbers of people could
collaborate to produce functioning and efficient software systems that
would be outside of anyone�s proprietary control? Why would anyone do
that? Where�s the incentive? Who�s going to work �for free�? Who would
be in charge? How could they all possibly make it work on the
technical side?
Of course, he managed to pull it off � not on his own, to be sure, but
he surely deserves a great deal of the credit for the success of open
source software, software which now dominates a number of important
segments of the computer universe and which is becoming more and more
central to the business models of even the giants in the industry
(e.g., Sun Microsystems and IBM).
I have great admiration for men and women who manage to pull off
things that are borderline insane when viewed against the conventional
wisdom; it�s why I [3]like Jefferson so much. They�ve earned the right
to have their crazy ideas taken seriously � no small feat.
Stallman currently [4]has copyright law directly in his sights. Like
many people � [5]myself very much included � he has concluded that
copyright law is broken, in fundamental ways, that it no longer
functions to encourage the production of creative works, but in fact
has quite the opposite effect, serving primarily to stifle creative
activity. I couldn�t agree more with him on that. He�s got a specific
proposal for changes in the law. I�m going to wait until he commits
those to writing before I comment specifically about them � I�m not
entirely comfortable relying on my memory of his talk as a basis on
which to comment. But the basics were these: much shorter copyright
term for all works (in the neighborhood of 10 years or so, rather than
the insane life+70 we now have), and a division of works into various
categories that would get different levels of protection, from low to
high: functional works, works of opinion and reference, and works of
entertainment.
The devil�s always in the details, and I�ll have more to say about
this proposal when I see and understand the details a little better.
But here�s what�s really interesting about all this. Open source
software � paradoxically, or perhaps only ironically � is entirely
dependent on copyright for its legal foundations. The entire open
source system relies on a complex licensing scheme (of Stallman�s
invention), under which open source software is distributed under a
special license that (a) gives all users certain rights (to use, copy,
and modify the software) and (b) requires that any re-distribution
include the same provision giving users those rights. It�s a kind of
recursive non-proprietary licensing algorithm � quite ingenious.
What many people don�t understand about open source licenses is that
they can be (and are) enforced by asserting a claim of copyright
infringement against violators, not merely a claim for breach of
contract. That is, if you take open source code and copy it and modify
it and then re-distribute it without the provisions providing your
users with the rights set forth in the license that you received, you
will be infringing the copyright in the underlying work (in addition
to breaching your contract). That principle was reaffirmed recently by
the Federal Circuit, in the Jacobsen v. Katzer case, and it is of
fundamental importance to the whole open source movement. Why? Because
a breach of contract action is virtually worthless as an enforcement
device, while a copyright infringement action is a powerful weapon
indeed. There are many, many reasons why this is so. In a breach of
contract action, the plaintiff has the burden of establishing that
there was a contract � no small task, when the licensee here could�ve
picked up this software from any of a million different places, all
around the internet. Who�s got a record of the �contract� that the
defendant agreed to, and exactly where he/she agreed to it. And even
if you establish a contract, your damages for breach of the contract
are limited to the harm you suffered as a result of the breach �
demonstrating that that�s more than negligible is going to be
incredibly difficult. It makes a breach of contract action entirely
ineffective as a means for enforcing the open source license. But
copyright infringement�s another matter entirely. Once you show that
the defendant copied/modified/re-distributed your work, the burden is
on the defendant to show that he/she was authorized to do that by the
copyright-holder. And there are statutory damages independent of
actual harm to which you are entitled for copyright actions � now
you�re talking serious money.
Stallman understands this thoroughly � though the vast majority of
commentators on the open source movement have missed this point. I
suspect that his ultimate aim is not merely to substantially weaken
copyright (as in his proposal) but to eliminate it entirely, and I
also suspect that he relishes the idea that he�s been using copyright
law as the main weapon in the battle to destroy copyright law �
another nice little recursive algorithm.
References
1. http://en.wikipedia.org/wiki/Richard_Stallman
2. http://www.fsf.org/
3.
http://www.amazon.com/gp/product/0195342895?ie=UTF8&tag=inseaofjefsmo-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0195342895
4.
http://www.catfoss.kerala.gov.in/index.php?option=com_content&view=article&id=86:freedom-or-power&catid=35:articles&Itemid=66
5.
http://volokh.powerblogs.com/archives/archive_2009_03_01-2009_03_07.shtml#1235918170
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