<nettime> The case for "lagom" copyright

[Mikael Pawlo <mikael@pawlo.com>]

Hi all,

Mr Ted Byfield asked me to send this to the nettime-l. I am sorry if you
already caught the text on Newsforge, Slashdot or Declan McCullagh's
Politech list.

However, this submission is improved, while you get the links to the
replies by Mr Richard M Stallman and Mr Bradley M Kuhn and the discussion
on Gnuheter and Slashdot.

If you have already read this article, just scroll to the end to find the
link to the responses of Stallman, Kuhn et al. If you follow the Slashdot
link you will find extensive information on the meaning of "lagom" .-)

Best regards

Mikael Pawlo



The case for "lagom" copyright

- - -
Online under:
http://harvard.pawlo.com/newsf02.html
http://www.newsforge.com/article.pl?sid=02/01/12/161213
- - -

One of the big issues of free software during 2001 was whether Richard M
Stallman was for or against a codified GNU GPL. Hence, did Stallman --the
father of free software-- propagate a law to support his beliefs? 

Tim O'Reilly tried to press the issue in a couple of articles and seemed
convinced that Stallman and his colleague Kuhn was for GNU GPL legislation.
O'Reilly suggested a system where developers themselves choose the rules
under which they release software, not very much different from the system
in effect today. Eric S Raymond wrote a satire to prove how wrong Stallman
and Kuhn would be to suggest a GNU GPL law. Raymond posed Stallman and Kuhn
the question whether if they could get a law passed making proprietary
licenses illegal, would they? Stallman and Kuhn slightly tilted towards the
legislative point of view, but never gave a straight answer whether they
were for or against a codified GNU GPL. Stallman and Kuhn wrote: "We
believe, though, that with time, as more and more users realize that code
is law, and come to feel that they too deserve freedom, they will see the
importance of the freedoms we stand for -- just as more and more users have
come to appreciate the practical value of the free software we have
developed." 

Free software is very simple in its construction. It uses the provisions in
copyright law stating that the author has an exclusive economic right of
his work. Computer programs are regarded as literary works in copyright
law. Thus, the author of a computer program can enter into any agreement
regarding his work. The GNU GPL is such an agreement. The agreement is
enforceable both under the principle of freedom of contract between and
copyright law. As Stallman's legal counsel professor Eben Moglen has told
us on several occasions, the GNU GPL still have not been successfully
challenged. 

Copyright law is often questioned. In an article in Wired 1994, John Perry
Barlow wrote that copyright was not designed to protect ideas or bits of
information but only to protect ideas as expressed in fixed form. Hence,
according to Barlow copyright is dead in the digital age. 

Copyright was made to create an incentive for authors and scientists to
create and explore and give them a guarantee that they would profit from
their creations. A copyright system that is too strict in favor of the
authors will work as a hinder and not an incentive for creativity. In the
epilogue of his book Copyrights and copywrongs Siva Vaidhynathan states
that "a looser copyright system would produce more James Bond books, not
fewer. Some might be excellent. Other might be crappy. Publishers and
readers could sort out the difference for themselves. The law need not to
skew the balance as it has." 

Computer programs are written incremental. That means that it is important
to be able to reuse previously written code. Hence, you need to be able to
write the computer program equivalent of James Bond without the original
author being present in your project. The aforesaid is a strong argument
for a codified GNU GPL, while one of the cornerstones of GNU GPL is the
right to reuse previously written code. 

Would not a modern democratic society benefit from a plurality of
irreconcilable and incompatible doctrines? We need the GNU GPL, but we also
need proprietary software, open source software, *BSD-licenses, the Apache
license and so forth. That would make the case for GNU GPL legislation
void. However, as Lawrence Lessig taught us in his book Code and other laws
of cyberspace, the code may in itself work against plurality. If we choose
to believe Lessig we might want to reconsider regarding computer programs
in the same way as literature. 

In The Future of Ideas Lessig suggests a reform of software copyright law
forcing computer programmers to disclose their source code when the
copyright expires. Lessig would protect computer programs for a term of
five years, renewable once. Copyright protection would in Lessig's proposal
only be granted if the author put a copy of the source code in escrow. The
source code should be disclosed to each and everyone when the copyright
expires, perhaps through a server with the U.S. Copyright Office. 

That much said, Lessig is very reluctant to make open code a law. In The
Future of Ideas, Lessig states that the government should "encourage" the
development of open code. Such "encouragement" should not be coercive.
According to Lessig there is no reason to ban or punish proprietary
providers. But this view is hardly consistent with Lessig's view on the
future of software copyright law. In Lessig's future system proprietary
providers are severely punished. They loose about 100 years of protection,
that is life of author plus seventy years compared to five plus five years
and then full disclosure. 

In article published in Stanford Technology Law Review Mathias Strasser
argues that any move towards more open code would be highly undesirable
from societal point of view, as it would destroy the market-based incentive
structure that currently encourages software producers to develop code that
consumers find attractive. By applying the utilitarian incentive theory and
the Lockean labor-desert theory, Strasser tries to explain why the current
copyright system is the best. 

Stallman and Moglen has yet to convince me that the GNU GPL and free
software philosophy is the final answer to intellectual property protection
of computer programs. However, I am not convinced that neither Strasser nor
Lessig is right in their view of the software copyright. But I choose to
believe Lessig when he states that code is law. The code layer in the
networks may in my opinion affect the freedom of speech at large. I do not
think that copyright is dead in the sense Barlow told us in 1994. Copyright
is still around, and even if itıs not effective in the digital age --as
observed by Barlow-- the courts enforce copyright. Therefore, we need to
find a new way to deal with copyright protection of computer programs. The
Digital Millennium Copyright Act and prohibition on reversed engineering is
not the right way to develop copyright. We need more transparency, but
still we need to consider the points raised by Mathias Strasser and Tim
O'Reilly. It is important that the incentives for larger businesses remain
even if the code is more open through a change in the copyright law. If
such a change is made, we need to consider the unique characteristics of
computer programs. We should not continue to compare computer programs to
literary works. Books are not software. 

What we need is balance. In Sweden we have one word that I have not
encountered outside of Sweden. The word is "lagom" and it defines the space
between too much and too little. What we need is lagom copyright protection
for computer programs. 


Mikael Pawlo


Related links:

The Economy of ideas by John Perry Barlow:
http://www.wired.com/wired/archive/2.03/economy.ideas.html

Lawrence Lessig homepage:
http://www.lessig.org/

The GNU homepage:
http://www.gnu.org/

Mathias Strasserıs article:
http://stlr.stanford.edu/STLR/Articles/01_STLR_4/index.htm

Tim OıReilleyıs My definition of freedom zero:
http://www.oreillynet.com/cs/weblog/view/wlg/526

Richard M Stallman and Bradley M Kuhnıs Freedom or power:
http://linux.oreillynet.com/pub/a/linux/2001/08/15/free_software.html

Eric S Raymondıs Freedom, Power, or Confusion:
http://linuxtoday.com/news_story.php3?ltsn=2001-08-17-016-20-OP-CY


- - - 

Replies and comments:

Richard M Stallman
------------------

http://www.newsforge.com/comments.pl?sid=02/01/12/161213&cid=31

Short abstract:

"Whether these freedoms should be instituted by law is not, for me, a
question of principle. It is just a practical question of means, and the
best choice might vary from time to time or from place to place. Since
Congress shows little inclination to ask me what to do--I can't, alas,
offer the sort of campaign contributions that a Microsoft or an Enron can
provide--there's no practical need for me to think about how to advise them
on this question today. Basically, I don't really care whether non-free
software is legally possible, as long as in practice it rarely happens." 


Bradley M Kuhn
--------------
http://www.newsforge.com/comments.pl?sid=02/01/12/161213&cid=20

Short abstract:

"In the future, perhaps our congresses, houses of parliament, and political
leaders will be ready to have the debate about how copyright for software
could be changed to truly serve society. The Free Software Movement should
be ready and poised to enter that debate when it begins. However, we at the
FSF by and large don't actively propose ideas of how software copyright law
could be changed to serve society better. It just seems silly to play
"what-if"---focusing on a message that our politicians aren't ready nor
willing to hear. So, we focus on battles we can likely win: opposition of
extending copyright law any further, and a repeal of the DMCA and DCMA-like
laws worldwide."


Slashdot
--------

Discussion on Slashdot:
http://slashdot.org/article.pl?sid=02/01/12/2149231&mode=flat


Gnuheter
--------

Discussion on Gnuheter (in Swedish):
http://slashdot.org/article.pl?sid=02/01/12/2149231&mode=flat



That is about it.

Regards

Mikael
_________________________________________________________________________

                                          mailto:mikael@pawlo.com  
                                          http://www.pawlo.com/

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