FC: Should closed source be illegal, and the case for "lagom" copyright

From: Declan McCullagh (declanat_private)
Date: Tue Jan 15 2002 - 02:35:42 PST

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    [Mikael Pawlo is an associate of the Swedish law firm Advokatfirman Lindahl 
    and an open source advocate. --Declan]
    
    ---
    
    Date: Tue, 15 Jan 2002 11:22:21 +0100 (CET)
    From: Mikael Pawlo <mikaelat_private>
    To: declanat_private
    Subject: Re: Sweden
    
    Here goes:
    
    
    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
    
    
    
    
    _________________________________________________________________________
    
                                               mailto:mikaelat_private
                                               http://www.pawlo.com/
    
    
    
    
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