The conflict between ethics and economy is cropping up again. Another comment on Luis Villa’s blog encourages me to write.

Chris Marino observes in this comment that the AGPL arose due to a perception of the ASP/SaaS ‘loophole’.

I’ve touched on this issue before: Gladys, Privacy, Liberty and the GPL

Chris, a dichotomy lies between rights restoration on the one hand and labour reciprocation enabled by copyright on the other.

1. Some people like the GPL/AGPL because it appears to oblige reciprocation of software enhancements.
2. Some people like the GPL because it neutralises copyright and patent’s suspension of liberty (restoring freedoms otherwise suspended).

The former is an inversion of the proprietary/closed business model. The latter is a neutralisation of the privileges that enable both.

If you don’t care about the ethics of copyright and patent then compulsory reciprocation of enhancements is an exciting, new, non-monetary business model.

If you have a problem (as I do) about the subversion of the word ‘free’ to warrant a violation of the right to privacy, then compulsory disclosure of source is a problem (except when used as an equal and opposite counterweight to anyone else’s threat to violate privacy).

Proprietary businesses claim, via copyright and patent, the privilege of being able to deny the public the liberty to copy, modify, reverse engineer, manufacture, or use software that infringes their privileges even in the privacy of their own homes. It is this same unethical privilege that can similarly be used by a labour-reciprocation licence to prohibit private modification or exploitation thereof unless source is disclosed.

It all depends upon the implicit or explicit contract the software developer expected was being made when they published their modifications (or original software).

1. That they’d enjoy a monopoly on copies, could keep their source secret, and sell copies of binaries, OR
2. That they’d enjoy guaranteed and perpetual access to their published software and source to any modifications that anyone else published or otherwise made available to the public – that these typically enhancing modifications constituted payment in kind to them and the community, OR
3. That no implicit contract has been made or can be made without violating the human right to liberty. That any contracts must be made explicitly, deliberately and willingly between the software developer and those with whom they are to make an equitable exchange.

But for the obligation to release source along with any software published, the GPL comes very close to nullifying copyright and patent.

But for its failure to obligate release of source to publicly exploited modifications, the GPL comes close to obligatory labour reciprocation, and but for its failure to compel release of all modifications in all cases, the AGPL comes even closer.

So the moment conversation starts drifting away from the mechanism of the GPL or any licence in achieving the kinds of deals that people want (imposed by copyright), and towards the question of rights (as opposed to commercial privileges), then it’s a whole new ball game. It’s no longer a legal mechanism requiring legal expertise, but a matter of ethics – that lawyers are wholly unsuited to, having had ethics drummed out of their systems at law school.

Free Culture Welcomes Free Riders

Incidentally, the term ‘free rider’ cannot be negative or pejorative when applied to permanent and non-consumable things such as human culture and knowledge. The ability to enable people to enjoy free use and access to culture and knowledge is the sort of thing that unites us is it not? To have people ride freely upon our cultural commonwealth is our aspiration.

However, that should not deny or prevent a free market in cultural work. If you want a bug fixed, no doubt you will find someone in a free market who will willingly exchange their labour in producing a fix for your monetary value of that fix. Nevertheless, we do not need to compel publication of the fix, nor do we need to enable the author to constrain those who receive it against their will.

Don’t forget that if many value the fix, then there is a greater monetary value that will accrue to the production of the fix, and similarly, a far wider distribution of the fix.

And if people value the source far more than the binary, then the source will attract a far higher price, which authors would be highly unlikely to forego if there was no incentive to keep the source secret.

I very much doubt Blender would have sold for as much as it did had only a freely redistributable binary been offered. But, the fact that the binary is far less valuable than the source would not make its sale unethical. If anything, its free distribution would help demonstrate the availablity and market for the source.

With a free market, once cultural works have been sold to the public, the market tends to saturate very quickly (especially for digital works), and it’s difficult if not impossible to sell people what they already have. Thus the problem for the software producer is not free riders (since the world is supposed to embrace them for culture), but in finding enough interested customers who value their work and will collaborate in collecting sufficient funds that the producer will find equitable in exchange. That’s simply a marketing problem and solved by the same mechanism that enables the diffusion of the works – the Internet.

Bounties, ransoms, digital art auctions: these are the mechanisms that enable the exchange of free culture for money – without copyright, patent, compulsory reciprocation, or violation of privacy.