A vendor selling a copy or imitation that is misrepresented as the genuine article is committing a falsehood, a deceit. This has been recognised as something that should be prohibited since time immemorial.
However, a vendor selling a copy or imitation that is honestly represented as a copy, derivative, or imitation of another work is committing no falsehood or deceit. This has also been recognised as something perfectly natural and to be embraced since time immemorial. Man has progressed precisely through a process of sharing knowledge, copying songs, stories, tools and techniques and improving them.
The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.
So, what happens when the public find themselves in possession of ever more powerful reproduction technology?
- The people are in fundamental conflict with those in possession of the privilege that suspends their liberty.
To say, because the 18th century privilege is still law three centuries later, that it is therefore the law that is right and the people who are in the wrong is to blind yourself to the reality of the conflict, to refuse to recognise the nature of people and information.
The Digital Economy Bill is simply yet another attempt to provide the privileged with additional legal sanctions, to effectively give King Canute yet more extreme powers to hold back the incorrigibly disobedient tide.
The Internet is essentially a system for instantaneously diffusing (distributing & reproducing) digital, intellectual works. A transferable 18th century privilege that requires that no-one distributes or reproduces an intellectual work without permission from the holder of that privilege is at best an anachronism, and at worst an unethical statute that should never have been enacted.
This writing is on the wall. If you hesitate to copy it and freely distribute it among your peers you are not dutifully respecting the privilege and law that suspends your liberty to do so, but committing yourself into ignorance and cultural suicide.
About this:
The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.
Are you sure? I believe that the law was actually a considerable liberalization, in that prior to its passage, the freedom to print anything was strictly limited to royally chartered guilds, the output of which was subject to review by the Church.
In other words, even authors didn’t have the right to print their own works. The act of printing itself was monopolized.
In 1709/10, this changed. The right to print (not copy, mind you, but to simply print) was vested in authors, who could subsequently name their own terms when negotiation with the guilds – which were barred from printing new material (i.e. less than 14 years old) without the author’s permission.
I don’t think this changes the thrust of you argument, but it’s important to understand how the law evolved of you want to see in continue its slow but ancient trajectory towards freedom.
Comment #000376 at
2010-03-11 08:32
by
Yes, prior to the Statute of Anne, there were de facto monopolies, and various edicts either permitting or constraining printing (and not just in England). However, 1710 marks the point at which the suspension of the individual’s right to copy published works was permanently established, the final nail hammered in, reserving such copying as the transferable privilege of a copyright holder.
I do not intend to imply that prior to 1710 people were blissfully engaging in free cultural intercourse. Far from it.
Everyone should read up on the history of copyright and all that precedes it to make up their own mind as to whether we are on a trajectory toward freedom or away from it.
Comment #000377 at
2010-03-11 08:56
by
Crosbie Fitch
Um, I think there may be another historical error here – specifically, your suggestion that copyrights were transferable beginning in 1710.
In fact, copyrights were not considered property – at least at the outset. They did not acquire property’s defining characteristic (legally transferable title) until the latter half of the 19th century. This development followed a century of cultural and economic development in which the publishing trade became enormously powerful. Only at this point did the notion of privilege as a function of property value become a matter of serious commercial consideration.
After all, copyright (really, print-right) was initially a mechanism for censorship. It was exercised by the church and crown, and existed not to govern the flow of commerce, but the flow of ideas themselves. Only after this restriction was relaxed could the commercial side of printing really take off. And again, it took more than a century before it was developed enough to demand its own modification to the law (specifically, the transformation of author’s rights into property rights).
Comment #000379 at
2010-03-11 17:55
by
Alex, this is not really the place to argue the minutiae of copyright’s complex history. My point remains that copyright IS a transferable privilege and was ESTABLISHED by the Statute of Anne in the 18th century. It is not inaccurate to describe it as a transferable 18th century privilege.
That various aspects of copyright have changed over the years doesn’t change that essential point. One can also quibble over the nuances and meaning of assignable vs transferable, that the latter term may not have appeared until later acts, but I don’t see that linguistic distinction as important as the one between right qua privilege (legally granted right) and right qua right (natural right).
When you say ‘another historical error’, what was the other one? Do you still dispute the accuracy of the first passage of mine that you quoted?
Here’s a more expansive description of copyright as enacted by the Statute of Anne – I embolden the part about assignablility, that it was not usually the authors who remained holders of the privilege:
During the course of the seventeenth century, copyright became intertwined with politics and censorship. The Company of Stationers, which received its legitimacy from a royal charter, rode through the turmoil of the civil war and restitution of the crown, but the previous arrangements to bring order to the trade slowly changed into arrangements to control the press. The Licensing Act that governed the book trade expired in 1692 and the House of Commons refused to renew it. There were many reasons, but one of them was the belief that the Stationers had abused their monopoly.
Chaos ensued. The book trade went from a tightly regulated enterprise to a wide-open free-for-all. The stationers petitioned Parliament for relief, and it finally came in 1709 with the Statute of Anne. The outcome wasn’t exactly what the stationers wanted.
The Statute of Anne was an attempt to restore order to the book trade and, at the same time, to address perceived abuses by the stationers. It provided two kinds of copyright. For past works, it extended the stationer’s copyright for a period of 21 years. For future works, it gave the author (or any assignee!) the exclusive right to print the work for 14 years, with the stipulation that the right could be extended by an author for another 14 years. There are two important points here. First, the statute allowed people outside the Stationer’s Company to hold the copyright (although it was the assignees rather than the authors who normally held it). Second, the statute attempted to break the monopoly of the stationers by limiting the term of copyright — a radical change for the stationers, who until then had enjoyed perpetual copyright.
From “Copyright and Authors” by John Ewing
Comment #000380 at
2010-03-11 18:44
by
Crosbie Fitch
Really enjoyed Ewing’s essay – thanks for the link.
However, I’m still surprised to see you glossing over what seem (to me at least) to be important details. After all, one of the things I’ve always admired about you is your unwillingness to be anything less than absolutely precise. Your systematic differentiation between rights and privileges is a case in point, and an prime example of the clarity that is so conspicuously absent from most copyright discussions.
That’s why I find your equation between assigning rights (sorry, privileges), and selling them outright to be so remarkable. Put simply, these are not the same. A rough analogy can be made in the difference between renting an apartment and buying one. Sure, you can say the apartment you rent is ‘your’ home, but of course, it isn’t really. Same thing goes for a publisher that has simply been assigned a publication right. Even if the assignment is perpetual, this arrangement can still introduce important limits (equivalent to rules against sub-leasing) that dramatically limit a publisher’s capacity to exploit the work.
From their perspective, this is an enormous difference. It may not be apparent to the author, who sees no practical difference between having to assign his copyright and sell it, especially when both transactions come with equivalent terms and result in the same thing (publisher places a bet by risking the costs of distribution / author gets paid something in the process).
However, when you consider what happens on the other side of the table, you’ll find that the ability to formally own, stockpile, combine, and resell these privileges leads to dramatic changes in their behavior of publishing enterprises (to say nothing of their commercial prospects). This shift is especially pronounced when you move beyond books, images, compositions, and other forms of expression that generally stem from solitary authors, and consider expressive forms that are born from collaboration, such as encyclopedias, films, symphonic recordings, mass media broadcasts, and grand architectural plans.
So again, there’s a vital difference between psudeo-property rights (such as the ability to assign, introduced in 1709), and the ability to flat-out sell, which didn’t come into play until England’s Copyright Act 1842 declared that copyrights were personal property in the fullest sense, and thus (and for the first time) capable of bequest. This significant development didn’t ‘go global’ until 1889, when the Berne Convention harmonized the different copyright laws maintained by its signatories so that they all included this definition of copyright as fully transferable property – nearly 200 years after the Statute of Anne.
On a separate note, while I enjoyed Ewing’s essay, I’m worried that his perspective may suffer from being too narrow, leading to a less nuanced view than the circumstances demand. For instance, while he may be correct to note that the Statue of Anne was not passed due to an abiding concern with author’s well being, it did reflect a (well-placed) concern that the unrestricted power of the Stationers had risen to the level of a national security threat. Ewing made no mention of this larger concern and I think his argument suffers for it.
In truth, matters were far less one-sided. After all, by this point the practical value of the scientific revolution had becoming abundantly clear – particularly with regard to astronomy, navigation, and the resulting conquest, accumulation of wealth, and ability to employ armies.
Even if the Crown didn’t care about individual authors, they recognized that a culture hostile to free inquiry and the liberal circulation of ideas would align them with historic enemies like Spain and Portugal (both in serious decline) and at a disadvantage in relation to powers like France and Holland (both ascendent, scientifically savvy, leery of domination by clerics, with the latter home of the Dutch East India Company).
So yes, the Stationers may have clung to some of their power through all-too-familiar means to do so (“pity the artist!”). And yes, we’re still living with some of the myths they managed to invent. But on the other side of the coin, they were fighting a losing battle against a new kind of progress (scientific) which has also continued unabated, and which, 300 years later, is having the last laugh by decoupling matter and media for good.
It’s a total shitshow, as you recognize better than most. And there’s a lot of deliberate obfuscation as a result – which is why I think it’s unwise to gloss over the exact legal meaning of some of the debate’s most central terms. If the object of the game is to disentangle the myths that persist, then it seem important to note that copyright as property – and not simply assignable privilege – is a 19th Century invention.
Comment #000381 at
2010-03-13 15:34
by
Alex, I’m not trying to belittle the difference between assignability and transferability per se. I’m only saying that quibbling about it may be interesting, but it does not invalidate my original article.
I made no claim regarding this aspect of copyright in the original article. It may well be an interesting historical detail, and I encourage readers to read up the history for such details.
You appear to be suggesting that I’ve made two historical errors. I don’t see that I’ve made any, but you may yet convince me otherwise.
Omitting what you regard as essential historical points may be an editorial shortcoming in your view, but I don’t believe this constitutes historical error on my part.
Do you disagree with any of the following:
1) 1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.
2) Copyright is a privilege enacted in the 18th century, and therefore can be described as an 18th century privilege.
3) Copyright is a transferable privilege and therefore can be described as a transferable 18th century privilege.
My use of ‘transferable’ is not to focus on the precise manner in which copyright is transferable or can be treated as a legal property, nor to imply that no legislative changes have occurred in its transferability/assignability since 1709.
I’m using ‘transferable’ to add weight to my point that natural rights are inalienable whereas privileges aren’t.
The inalienability of a natural right is a matter of natural law, not legislation. Legislation may stipulate that the holder of a privilege may neither assign nor transfer their privilege (as with droit de suite), but that doesn’t make the privilege an inalienable natural right.
Comment #000382 at
2010-03-13 17:17
by
Crosbie Fitch
CF,
I disagree with all three points, though with some moreso than others.
More importantly, I see the general thrust of this argument – that the 1709 law represented a sudden and sweeping suspension of liberty – as very unsound. Far from being the regressive act that this framing suggests, I see it as a fundamentally liberal proposition, and one that paved the way for greater liberalization – even as it introduced elements that grew into barriers to that larger trend.
When it comes to successfully framing present-day issues (i.e. to do so in a way that persuades more people of copyright’s illiberality), it seems to be critically important that the larger trend be represented correctly.
In response to your specific points, consider the following.
1) When saying “1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.” You make no distinction between mechanical and non-mechanical copies.
With regard to non-mechanical copies (i.e. transcriptions by hand) I don’t believe the law said anything one way or the other. After all, the process is so labor intensive as to be irrelevant to the act of publishing in any conventional sense of the word.
And with regard to printed copies, the public’s right had been well and truly derogated long before 1709. That was the whole point of the printing guilds – not simply to extend monopoly powers over specific works, but to monopolize the very act of printing. That is to say, prior to 1709, it was illegal to simply own or operate a free press. Moreover, the law that was superseded in 1709 gave specific authority to members of the Stationers guild to hunt down and destroy presses that were not owned and operated by the guild. To suggest that this environment was one in which “individual’s natural right to make copies” was respected is – frankly, absurd. How can a person be ‘free’ to do something when possessing the means of doing that thing is a crime? That’s like saying you’re free to write what you like – just don’t make any use paper, pencil, or ink.
Of course, the ability of anyone to operate a press – even to publish the King James Bible – was, itself, a major liberalization. Prior to the Reformation, vernacular copies of the Bible had been outlawed, as had – at one point – the freedom to even read the Bible. Forget about physically copying (an inconceivable liberty) – simply going to existing sources to create a direct mental impression instead of relying on the interpretations of clergy was considered a no-go.
So sure, the ‘right’ to copy may have existed (indeed, it did, and was well exercised in any number of matters, from agriculture to military strategies). However, like any other human right now widely accepted today, it wasn’t recognized by the prevailing authorities – at least not with regard to printed materials. Indeed, the right to copy anything may not have been regarded as a right at all, and was instead considered (if considered at all) as something reflexive, like the ‘right’ to eat, sleep, or breathe. And again, acceptance of this reflexive freedom had never been extended to books.
So with regard to point 2, no – copyright – in the absolute sense – was not enacted in the 18th Century. Yes, the first example of a law that reflects aspects of our own may have been introduced in the 18th Century (which is why this is called the first modern copyright law), but copyright taken literally – which is to say, the right to make literary copies – was firmly restricted long before 1709.
The importance of the 1709 law (in my view, at least) is that it separated the act of making copies in general from the act of making particular copies. By severely limiting the power of the state to limit the production of copies in general, the market for the making of copies expanded dramatically. The fact that more individuals took advantage of the law’s monopoly protection did not mean that the scope of copyright law changed dramatically. After all, it only applied to books (which has always been subject to limitations) and it only applied for 14 years (a major reduction from the perpetual monopolies that existed prior t 1709).
What we now see at the major expansions didn’t take place until the next century, when the duration of the law’s protection was amplified, along with the number of expressive forms that it covered.
Your larger point, that no true right is transferable – is well taken. Once you adopt the basic view that the rights of man are intrinsic and inalienable, you understand that the definition of a right is something that cannot be granted by law – period. It can simply be recognized and protected. Obviously, something transferable fails this test immediately.
What I find interesting is that the original 1709 law was closer to this original sense of right, as opposed to its more modern incarnation as a simple privilege. Throughout the 18th Century, hiring a printer seems to have been more like hiring an accountant or a lawyer. That it to say, they were authorized to exercise your rights on your behalf, but at no point were they allowed to operate independently, or contrary to your interests.
But once copyright became fully transferable (as opposed to merely assignable), this limited relation between author and agent evaporated. Once a right has been given title and sold off, the author had no further claim whatsoever, and the owner of the right had no obligation outside of the agreement to pay. Of course, some countries accepted the idea of the author’s moral right – allowing them to renounce any work that was altered insufferably – but that didn’t become a universal convention. And again – all this happened in the 19th Century. Even if the seeds of this development were planted a century prior, I think it’s misleading to suggest that they attained their present form immediately, or that the authors of this law actively condoned an interpretation of their act that did not, in fact, develop for another 140 years.
So put simply, Queen Anne predated the idea of copyright as titled and fully transferable property by a long time. While the development of copyright as property may represent a fundamental injustice, it’s unfair to lay it at the feet of people who were dead well before its introduction.
The most important point of all is that recognizing the public’s right to copy is actually a very new development. Because is has – for economic reasons – been considered a privileged (in that very few were privileged enough to afford a press), we’ve not considered whether the act itself is a fundamental right.
Returning – again – to the notion of rights as intrinsic qualities of being human that can’t be granted by law, and can only be recognized by law, it’s only now – when the means to copy and distribute have become so advanced that these acts seem like walking or breathing – do we finally start to consider that, perhaps, we’ve been wrong to ever think of them as privileges. Only now is it dawning on many people that this has always been a fundamental right. For those who measure the progress of history by the extent to which governments first recognize, then accept, and finally protect these rights, the ability to use the internet in the most natural fashion becomes the vanguard of legal development.
My suspicion is that this is truly uncharted territory. Even if the 1709 law did establish the trajectory of current thinking, its grant of privileged hardly overturned a robust and well-established concept of right. To the contrary, recognition of the natural right to copy literary works was so anemic that only now – 300 years later – is is even beginning to be discussed seriously.
To that end, I think the most important step is the reflexive framing of copyright law as a matter of privilege, and not a true right – which cannot be transferred, and can only be limited in response to a specific criminal charge, and the due process of trial in an open court.
Comment #000383 at
2010-03-18 16:05
by
You make many good points Alex, and I would have been more disposed to discuss them had they not been made in support of your claims of two historical errors on my part (of which I remain unconvinced).
I continue to see the three points I posed in my previous comment as correct. That you cannot agree with them helps explain your position that I have made historical errors.
Anyway, here’s another recent post you may be interested in concerning the Statute of Anne and the significance of 1709/10 in copyright’s history: Blawg Review #258
“Obviously the Statute of Anne, having been put in force 300 years ago, almost to this day, is no longer good law in any jurisdiction. In fact, almost immediately after it was enacted it began to be transformed. But it stands as a turning point in the history of English law-based systems by being the first true instance of copyright law as we’ve come to know it.”
Comment #000386 at
2010-04-06 11:37
by
Crosbie Fitch
Copyleft – the reversal of copyright’s abridgement of mankind’s cultural liberty, the restoration of freedoms suspended by copyright (and by patent to some extent) – is GOOD.
Without copyright we cannot have freedom?
Depressingly, there is an unfortunate tendency for copyleft supporters to conclude that because copyleft relies upon a copyright license to restore freedoms to the general public, that copyright is not only necessary and indispensable for ‘freedom’, but must also therefore be good – and so also to be supported.
Pointing out the irony of supporting a privilege that annuls people’s right to copy in order that a copyleft license can restore it doesn’t appear to ring ‘Internal contradiction detected!’ alarm bells in far too many copyleftists’ minds.
It is a ridiculous situation that people who would restore the freedoms suspended by copyright feel they must retain the very privilege that suspends those freedoms in the first place (in order to restore them). This is why copyright abolitionists receive very little sympathy from those in the free software movement. To be against copyright is to be against the enabler of freedom that is copyleft: the GPL is holy – without copyright there is no GPL – the abolitionist is a heretic.
As an instrument of injustice the privilege of copyright has no justification in the first place. While it is good that we use copyleft to restore freedoms suspended by copyright, it is ridiculous that champions of that freedom would attempt to justify copyright’s continued existence simply in order that the laudably libertarian licenses of copyleft can continue to undo it.
Freedom is the power to compel disclosure?
The best attempt at justification that copyleftists can come up with is the ethically worrying complaint that without copyright there would be no power to force or coerce people who publish binary derivatives to also publish their source code.
So I find it similarly ironic that instead of being at the forefront of a movement to abolish copyright that copyleft supporters assume they must support copyright in order to enjoy its power to coerce people to release source code to their published binary derivatives of other’s work.
Power corrupts. People enjoy too much the prospect of being able to control others, e.g. limit what others can or can’t do with what they publish, or coerce people to publish things they might prefer not to.
That this power to coerce disclosure of source wouldn’t exist without copyright should be a clue that it’s not a natural power and so not ethical.
Why is copyright/copyleft perceived as closed/open source?
We should examine why people think copyleft and the free software movement is more about coercing disclosure of source to binaries than it is about restoring freedom.
- Why do people want to coerce others to publish their source code?
- Who are these ‘others’ who will publish binary derivatives without source?
Given every developer espousing free software is evidently quite happy for source code to be publically visible to enable the considerable advantages of an open and collaborative software development process, there can’t be any ‘closed sourcers’ publishing GPL code. In other words, everyone developing free software wants their source code to be published. They don’t need to be coerced. So, who does?
It must be those ‘closed source’ publishing corporations that exploit copyright to sell binary copies at monopoly protected prices.
But why don’t they supply the source code too?
‘Closed source’ is an epiphenomenon of copyright
Copyright prohibits anyone from making unauthorised copies or derivatives, so the source would be of little use to anyone except those who’d like to help the developers pinpoint bugs – or competitors who’d like to reverse engineer the code and produce a cheaper equivalent. So, given how little benefit there is in providing the source (if not considerable disincentive), it shouldn’t be surprising that it isn’t provided. This is especially the case when you consider that copyright is actually pretty ineffective at preventing copies or improved derivatives.
Copyright doesn’t provide a reproduction monopoly to publishers of software binaries on condition the source remains unpublished. Keeping the source unpublished is entirely an option and decision of the binary publisher. But, it should be recognised that the decision not to publish the source is made soley because it is generally against the commercial interests of the vendor of copies. The more they can maximise the strength of their position as monopoly vendor of copies the better. Only they can produce improved binaries and sell copies thereof, because only they have the source. Certainly the source is provided in some cases, but this is usually reserved for wealthy clients who can afford the premium and legal/security overhead.
As an epiphenomenon, ‘closed source’ falls with copyright
It has to be recognised that people have a right to privacy and if there’s anything they don’t want to make public, they don’t have to make it public (unless a greater right, life is at stake). There’s nothing magical about software that makes it any different from a cookie recipe. People have just as much right to produce cookies or binaries and keep their recipe or source secret – even if their product results from their modifications to published recipes or source. ‘Freedom’ cannot be invoked to sequester the recipe or source code from someone who sells a cookie or binary. Privacy delimits such freedom, not copyright – and unlike copyright, privacy is a natural right.
Let’s remind ourselves as to the objective. It is to restore the freedoms suspended by copyright and undo its epiphenomenon of ‘closed source’, not to empower SWAT teams to break down coders’ doors to seize unpublished source code to the binary derivatives they’ve distributed.
A similar error in using copyright as coercion occurs in the Creative Commons licenses that oblige attribution.
It is as much a mistake for the GPL to coerce disclosure as it is for Creative Commons licenses to coerce attribution. Like ‘closed source’, the lack of attribution is an epiphenomenon of copyright. This is because authors and artists who credit their (uncleared) sources open themselves up to copyright infringement lawsuits – by admitting they’ve copied. Without copyright there is no such disincentive. However, with or without copyright, it is ridiculous to threaten people with million dollar lawsuits if they fail to attribute their sources. There is no right to attribution. The right is to truth, to accuracy in attribution – in other words, a right against misattribution (qv plagiarism). Crediting one’s sources is a mark of respect that credits the creditor and credited alike. But you don’t undo copyright’s epiphenomenon of inhibiting attribution by coercing attribution – instead, you remove the threat from copyright that discourages it, by neutralising or abolishing copyright.
Similarly, you don’t undo copyright’s epiphenomenon of disincentivised source code publication by coercing the disclosure of source. What is ethical is to remove unethical constraints – not to contrive what would happen in the absence of privilege through unethical coercion (ends do not justify means).
Freedom needs no coercion, nor derogation of privacy
I contend that you can remove coerced disclosure from the GPL and still find that it undoes copyright’s ‘closed source’ epiphenomenon.
You undo or neutralise copyright and its abridgement of freedom by removing copyright’s constraints, by restoring the liberty they suspend in a license – and copyleft’s genius judo is in obliging the removal of those constraints in derivatives via the same license, thus liberating the public (including the licensor), not just the licensee.
However, you remove an epiphenomenon caused by copyright by removing its cause, the incentives for it, which is already achieved by the former: the removal of copyright’s constraints (ideally abolition). You need no additional coercion.
Compare coerced disclosure with liberty
Let us explore the difference between two copyleft licenses, one that coerces disclosure of source, the GPL, and one that doesn’t, the ncGPL (non-coercing – identical to the GPL except that distributors of binary/obfuscated derivatives don’t have to supply source on demand).
Those in the free software communities WANT to have the source open – or they wouldn’t participate, therefore the coerced disclosure clause of the GPL doesn’t come into play for this class of developer.
The critical example is of a corporation motivated by monopoly profits.
Why is such a corporation going to publish a binary under the ncGPL that it couldn’t under the GPL?
Remember, the ncGPL still breaks copyright’s ability to enjoy monopoly protected pricing.
Therefore the ncGPL holds no attraction to such a corporation – the largest publishers of binaries whose source remains unpublished/confidential.
Here are three of the obvious business models or propositions the ncGPL permits that the GPL does not:
- “As you can see from the attached binary, I’ve fixed the bug you asked me to. Once I’ve received payment I’ll provide the source.”
- “You’ll find via BitTorrent a gratis/freely copyable ncGPL binary we’ve developed as a promotional demo to help sell our secret source code (and thus cover our development costs).”
- “For a small fee we’ll develop a bespoke binary to your spec that you can freely copy or attempt to reverse engineer and modify as per the ncGPL, but because our source code reveals our exclusive technology we won’t let you have the source unless you pay us considerably more (to cover our R&D costs).”
These propositions could be made under the ncGPL or if copyright was abolished. They could not be made under the GPL, or if copyright was abolished and a new (unethical) law made it illegal to convey binaries without source.
There is nothing ethically wrong with them – being given a binary without source does not derogate from your liberty (it is copyright that is unethical, with its consequent epiphenomena antisocial).
These ncGPL business models do not engender copyright’s ‘closed source’ epiphenomenon that we suffer today because the ncGPL, like the GPL, defeats any market for binary copies. Either the binary is of interest to only a specialist client (bespoke), or it is given away as a free demo of the source to be sold. The likes of Microsoft and other sociopathic corporations exploiting the proprietary ‘closed source’ copyright enabled business model would adopt neither of these two ncGPL enabled models, and that’s because the potential revenue is equivalent to the labour expended – as opposed to the orders of magnitude greater revenue that a state granted monopoly can obtain. Moreover, the bespoke ncGPL binary developer must compete with ncGPL competitors who provide similar functionality with source included – a lack of coercion does not imply a lack of commercial incentive.
Practically, GPL code bases could still be in use in both examples anyway, possibly with the binaries supplied without declaring them to be illicit GPL derivatives. Why? Because the developer isn’t egregiously infringing copyright (though the public might). They are not engaged in the manufacture, distribution and sale of copies – the mode of an infringer that copyright law is optimised to prosecute. If the law cracked down on those who prepared and supplied unauthorised derivatives, the police would be waiting at the doors of publishing agencies and record label A&R departments ready to bust budding new authors and artists who’d failed to obtain licenses for their samples, quotes, and clips, etc. Much as publishers might be happy for people to assume, artists do not and cannot practically perform copyright clearance in advance of creating their art (unless extremely wealthy). The same copyright law applies to software developers as applies to any other artist – even if the process is different. And frankly, I do not see GPL copyright holders hiring private detectives to scour the land for binaries that have failed to declare themselves as GPL derivatives, and then hiring expensive lawyers to prosecute the developers for preparing them illicitly.
Finally, bear in mind that the ncGPL is still like the GPL in requiring that no constraints may be applied to preclude anyone privy to the source code from releasing it. The ncGPL simply omits to coerce those who publish binaries into providing the source on request. The ncGPL would instead recommend making source available on demand instead of making it a license condition. Being identical to the GPL in all other respects it maintains the GPL’s condition against preventing recipients of source from copying or otherwise conveying it. Thus any employees of a company developing an ncGPL derivative would remain just as free to release it unilaterally.
I appreciate that it is widely assumed that the GPL is so successful precisely because it coerces publishers of derivatives to publish their source, but I contend that it needs no such coercion, it needs only to remove copyright’s epiphenomenal incentive to keep source unpublished, and that is achieved by neutralising copyright, nothing more. No additional coercion is necessary. The unnatural power of privilege may be undone by using that power against itself, but freedom is not obtained through the use of that power beyond its undoing.
NB The ncGPL is quite different to the BSD in that the ncGPL requires derivatives to be similarly licensed.
If the proprietary ‘closed source’ business model is incompatible with the ncGPL then it is incompatible with copyright abolition. If you can see that the ncGPL would achieve the same source code transparency as the GPL then you need have no fear that copyright abolition would maintain a significant ‘closed source’ incentive.
The restoration of liberty suffices (copyright & patent abolition)
Copyleft is superior both ethically and economically because it restores the public’s liberty, not because it coerces the publishers of derivatives to disclose source code. It is the restoration of liberty, the dissolution of monopoly, that removes the incentive to keep source secret, not the threat or coercion of a license condition.
It is safe for supporters of free software to support copyright and patent abolition unconditioned upon a prerogative to compel source code disclosure.
Thanks again for such a wonderful stream of crystal-clear thoughts.
Would have never thought of the implications of coercion on the GPL.
I think this is the first time I read about the ncGPL, and there may be a good reason: I’ve googled a little about it and couldn’t find any other reference to ncGPL besides this very same article.
Not sure what the plans are, but… are you planning about formalizing this proposed ncGPL into a proper license to be used by developers?
It seems to me that it could be a great way to massively spread the way of thinking promoted by Cultural Liberty and help others to think in terms of copyleft.
I wonder what Richard Stallman would think of ncGPL, as it seems to take the fight for free sofware and liberties one step further.
Comment #000519 at
2011-07-01 20:55
by
Julián Landerreche
Thanks Julián,
The ncGPL is just a hypothetical variation of the GPL. Possibly it might influence GPLv4, or failing that GPLv5, but because this article is heresy to copyleft dogma (that ‘open source’ is only open because of a license obligation to publish source), I doubt this article is going to interest anyone except those who’ve already recognised that power to compel others to publish source code is not exactly natural.
I published this article primarily to prepare an argument on the matter with Mike Linksvayer. We’d exchanged words on Identica and it was agreed more explanation was required on my part.
See: identi.ca/conversation/72676222
Comment #000520 at
2011-07-01 21:19
by
Crosbie Fitch
One of the things that particularly bothers me about licensing, libertarian or otherwise, is that it seems designed to be continue forever. In the first few centuries of copyright, at least the terms were finite and so works would eventually be freed. What concerns me now is that we may be heading into future of perpetual licenses, with nothing ever again going into the public domain.
As a non-programmer, my concern with closed source code is that can turn my work into ransomeware.
If I purchase software to edit video, say, and edit all my home movies in it using the proprietary format, my work is now locked inside that proprietary format.
Which means:
- I can’t take my partially edited file and work with it in different editing software,
- if the company goes out of business, or
- simply decides to stop supporting it
It’s all very well to say that no one should be compelled to publish sourcecode, but I disagree. Once the software is sold and out there, it must be open and accessible for consumer protection.
In the pre-digital world, I could cut my film on a Moviola or a Steenbeck, but was not locked into a relationship with a single manufacturer. Closed source puts consumers, artists and the culture at the mercy of manufacturers.
Comment #000521 at
2011-07-03 10:49
by
Hi Laurel,
If you have a problem with the term of licenses, you have a problem with the term of copyright. And as only licenses can restore the liberties that copyright suspends, if you hope for liberty you’d better hope that such licenses last as long as the copyright (in some cases they don’t).
As for obscure file-formats, these are a further epiphenomenon of copyright. If you can sell copies, then not only don’t you need to sell the source, but you don’t need to sell documentation of the file-format. Whereas, without copyright you have to sell the source (if you want to get paid for writing it), and if the source is published, the file-format is far easier to understand and document – moreover, the person paid for writing the source, is likely to get paid far more if they document the file-format.
Without copyright you might feel you still need the power to break people’s doors down, severely fine them or imprison them if they publish a binary without source, but such power is unnatural and unethical. This article attempts to explain why such power is not needed, indeed why such power could even be removed from the GPL without affecting people’s incentive to publish source code with their GPL derivatives. I suggest that, without copyright, the civilised approach and ethical incentive is to offer software engineers money in exchange for the publication of their work. Do not make it a crime for them to publish a free binary demo of their work in advance of being paid for their work. Similarly, don’t fine musicians for releasing a free MP3 demo file in advance of selling the score and FLAC versions of each component track of their digital master. Demand only your liberty back, don’t deny an artist the privacy that enables them to sell their unpublished work.
If you don’t like closed source then you don’t like copyright. Don’t make the error of inferring that an ephiphenomenon of copyright warrants a new unnatural, power to compel disclosure. Just abolish copyright. Don’t replace one instrument of injustice with another.
Comment #000522 at
2011-07-05 10:39
by
Crosbie Fitch
Actually, Crosbie, I’m not keen on either closed source or copyright.
But there is a world of difference difference between:
(1) a software engineer publishing “a free binary demo” (or a musician publishing “a free binary demo” of their work) prior to selling a copy of their work,
and,
(2) a software engineer selling me a copy of their work with the source code locked up (or an RIAA corporation selling me anything locked behind DRM).
A publisher of anything generates income by selling copies. No copyright law anywhere in the world does anything to restrain any publisher from giving away free copies, in whole or in part. Nor would they. After all, that has long been one of the primary means a publisher has of promoting their wares.
Copyright uses the force of law to compel restrictions on people’s freedom to enjoy cultural works, just as closed source uses obscurity to compel restrictions on people’s freedom to enjoy software works. [The same software publishers who lock up their source code tend to avail themselves of copyright law and/or software patents to add the force of law to their assault on their customers’ liberty.]
I am in complete agreement with your statement that “It has to be recognised that people have a right to privacy and if there’s anything they don’t want to make public, they don’t have to make it public.”
Frankly, I would never advocate compelling software engineers to publish. Like novelists, software engineers are always free to write their code and hold it close, never publishing it at all. But, of course, like novelists, once software engineers elect to publish their software, they have themselves ventured outside of the private domain.
When I purchase a copy of a book that is “protected” by copyright, I at least have access to its entire contents. The effect of closed source software is akin to selling a copy of a novel, and then, after the customer has paid the agreed price for it, charging the customer a second time for the key to the final chapter. Effectively making closed source code ethically worse than copyright.
Most consumers are not aware we are being sold a pig in a poke. Disingenuous sales practices fool customers into believing we are purchasing software when in fact, thanks to the most outrageous legal legerdemain, we are merely licensing it. Even further, most users would never dream that it is not within our rights to use such software as we see fit, and are unaware they are legally restricted to using such software only according to the dictates of the publisher (who may, or may not, be the software engineer).
Consumer protection laws must at minimum compel a warning to inform consumers what they are getting. Software may be nearly universally adopted but neither software nor licensing is by any means universally understood by users. In the absence of such warnings, customers are essentially being defrauded. Society must be protected, particularly when the pace of innovation unfairly disadvantages human beings.
Still, society allows unfettered infringement of personal liberty only at its own peril, which is why I am disinclined to the idea of legal compulsion beyond consumer warnings. Education and freely available information will take up the slack. Even without such warnings and education, human beings are adaptable, which is why, as more people are becoming aware of the way closed source software infringes on their liberty, more and more are abandoning that Sisyphean treadmill.
If you give me something, like a “free demo,” it is conceivable that there might be strings attached. If you sell me something, even a copy, any imposition of restrictions, by either legal or physical means infringes on my liberty.
Comment #000523 at
2011-07-05 18:21
by
Crosbie,
I am not sure you are taking into account the TIVO’s of the world.
There are certainly current developers of derivatives of GPL software that do not publish their sources and other who take other steps to prevent you from running changed sources even if you have them.
It is of course one thing to have certain freedoms restored in a generally non-free game and another to have a free game restored.
Comment #000524 at
2011-07-06 17:39
by
Good point Drew.
However, where the GPL fails, the ncGPL cannot do better.
Expensive devices (Tivos or games consoles as opposed to binary files) with which binaries are included should still be treated as expensive device plus free software demo (per the ncGPL the binary can still be freely copied).
The source is unpublished because the developer hasn’t yet been paid for it. Offer them an equitable amount of money for the source and per the ncGPL you are at liberty to share it.
If I sell you a black box that does something useful, then without copyright or patent, that box cannot constrain your liberty. Sure, reverse engineering is hard, especially without the source code and designs, but you remain free to do it. That I could make that task easier by giving you further information still doesn’t actually impinge upon your freedom.
Alternatively, if I’d bound you with manacles and omitted to provide you with the 4 digit code to the combination lock, then I’ve bound you, but that’s because the manacles constrain your freedom, not because I’ve omitted to give you the code. Not providing information to someone does not by itself impinge upon their liberty.
I’ve pointed out this error in the ‘four freedoms’ before. See The Seduction of Social Sanctity
Comment #000525 at
2011-07-06 18:11
by
Crosbie Fitch
Hey Crosbie, you drew me here from an article by Nina Paley where she wonders why some free software developers tend to make exceptions for opinion writings in what licenses they use and in rights they give (as if to preserve the integrity of opinions when they believe in allowing source code modifications). www.techdirt.com/art…
What I tried to explain in a comment there, as relates to this article, was that trade secrets in software are not easy to decipher and can lead to significant “harm”. There are security implications, and it is a path to significant lock in. A major reason to hide source is to facilitate a monopoly. It’s not that competitors want to know roughly how your software works in order to compete, is that potentially without exact duplication (bug for bug), they are at a significant disadvantage in terms of interfacing in important areas, including by understanding precisely the wide range of created user documents or data. A small misunderstanding (think of “Place paragraph in blue, 12 inches down” vs. “Place half of paragraph in red, 56 feet down”), can lead to horrendous results, even if the competing software is otherwise 10X better. We have network effects to deal with at a level that don’t exist for ordinary consumer goods. You can even create extremely complex protocols or security back doors where the details are changed in real-time over the Internet (eg, where the details aren’t known until run time when the missing key bits are downloaded, encrypted and time spread). The evidence can then be removed. It took a long time to decipher the Rosetta Stone. How much easier would it have been if we simply had a manual to the language? The issue with software is not identical to this, but, there are costs, like with any other reverse engineering, and one where the changes may occur very frequently (and compilers can take a tiny change in source code, in logic, and produce a very different iteration of the compilation because the mappings are many to many not one-to-one). Imagine the Rosetta language changing every hour as we are trying to “crack” the code (of the moment).
[some more…] As I mentioned on that thread, I think without copyright, we would come closer to cracking the codes or at least to better determine that the code is changing a lot. The real solution is to have people avoid the monopolies; however, software’s effect is not something we see, and lock in and network effects take hold and create unfair market places. Calling something unfair is a judgement call, but just as brand and past good experiences lead people to avoid many restaurants and go to particular ones, the problem with software is that it has network effects (“everyone” goes to the same ones) and also it really is easier to change food restaurants because you don’t have to invest a lot in learning the new foods or in interfacing with existing foods you’ve eaten in the past.
My decision on copyright: I would like no copyright (as you do) but not if it would only apply to software. My view is that society would gain so much overall from no copyright (or a weak version) that it would make up for risks in software.
Note, that the GPLv2 is “flawed” in at least 4 important ways. Patents are not resolved. We have “tivoization” (v3 issues). We have online hosting companies (AGPL issues). The copyleft creates inflexibility. These problems make it easier to agree that no copyright across the board (culture including) would be the best.
Comment #000528 at
2011-07-16 22:41
by
Jose_X
Hi Crosbie,
Great essay, apologies for taking nearly a year to read it in full. I’m mostly in agreement, but allow me to highlight two fragments that I disagree with.
“power to coerce disclosure of source wouldn’t exist without copyright”
Not necessarily. Regulation, including the variety backed by coercion, could force disclosure. Such could have nothing whatsoever to do with copyright. For example, a medical device regulator could penalize anyone installing medical devices without source disclosure.
“you remove an epiphenomenon caused by copyright by removing its cause”
Yes, but non-disclosure of source is not exclusively an epiphenomenon of copyright. Trade secret is a well-worn strategy that would make sense in some cases, not in others.
I agree that overall copyright and patent abolition would be a boon to software freedom. But it wouldn’t completely eliminate closed source, nor other avenues for requiring disclosure.
…
I have a post somewhat related to the points made above, see gondwanaland.com/mlo…
It also touches (see note 5) on possibility of a copyleft license that only neutralizes copyright, adding no regulatory conditions, as you’ve dubbed the “ncGPL”.
Congratulations on seeing copyleft more clearly than most who know of its existence. :)
Comment #000595 at
2012-06-11 19:02
by
A vendor selling a copy or imitation that is misrepresented as the genuine article is committing a falsehood, a deceit. This has been recognised as something that should be prohibited since time immemorial.
However, a vendor selling a copy or imitation that is honestly represented as a copy, derivative, or imitation of another work is committing no falsehood or deceit. This has also been recognised as something perfectly natural and to be embraced since time immemorial. Man has progressed precisely through a process of sharing knowledge, copying songs, stories, tools and techniques and improving them.
The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.
So, what happens when the public find themselves in possession of ever more powerful reproduction technology?
To say, because the 18th century privilege is still law three centuries later, that it is therefore the law that is right and the people who are in the wrong is to blind yourself to the reality of the conflict, to refuse to recognise the nature of people and information.
The Digital Economy Bill is simply yet another attempt to provide the privileged with additional legal sanctions, to effectively give King Canute yet more extreme powers to hold back the incorrigibly disobedient tide.
The Internet is essentially a system for instantaneously diffusing (distributing & reproducing) digital, intellectual works. A transferable 18th century privilege that requires that no-one distributes or reproduces an intellectual work without permission from the holder of that privilege is at best an anachronism, and at worst an unethical statute that should never have been enacted.
This writing is on the wall. If you hesitate to copy it and freely distribute it among your peers you are not dutifully respecting the privilege and law that suspends your liberty to do so, but committing yourself into ignorance and cultural suicide.