Friday, April 04, 2008

Section, gerritt?

Here is some trenchant commentary by James Grimmelmann on the efforts of the study group convened by the Copyright Office and Library of Congress (back in 2005) to find ways of revising copyright law (especially Section 108, which provides exceptions for librarians and archivists) to "to ensure an appropriate balance among the interests of creators and other copyright holders, libraries and archives in a manner that best serves the national interest". I'm not going to comment at this stage, because James has done a more than adequate job. His views might be summed up, in his own words, as:
This isn’t a matter of rearranging deck chairs on the Titanic. This is more like rearranging deck chairs on the Titanic, if the Titanic were sinking because of the absurdly large number of deck chairs it was carrying.
Oh, and also:
Redrafting it [Section 108] would be like helping a hungover drunk pull on enough clothes to go out without being arrested, so he can go to a bar and get even more plastered.


Blogger Crosbie Fitch said...

A lot of Titanic passengers lost their lives. The ship was vital. It's sinking was tragic.

Copyright is far better compared to something like apartheid, an anachronistic continuation of the notion that commercial exploitation of others' liberty can be beneficial to those who've had that liberty suspended.

Copyright suspends the cultural liberty of the public for the commercial benefit of corporate publishers (a superior class).

So the fatuous idea that copyright may be better 'balanced', could be analogised to an idea that apartheid could be better balanced.

Abolish copyright.

10:46 AM  
Blogger Samir Chopra said...


Its worth noting though, that its copyright law in its current form that lets the GPL function as well as it does. Without its protections lot of formerly free software could disappear into proprietary repositories (with proprietary code added to it) and become a trade secret.

But your general sentiment that copyright needs extensive revision in this day and age is appreciated!


12:28 PM  
Blogger Crosbie Fitch said...

Ahem. You'll find that the GPL neutralises copyright - it does not depend upon it, for without copyright the GPL is redundant, i.e. without copyright, software publication behaves as if all software was GPL licensed.

It does take quite a bit of thought, but if you attempt to conceive of a world without copyright, you'll find that people have the same liberties that the GPL attempts to provide in a world with copyright.

GPL software would be unaffected. Copyrighted software would suddenly behave like GPL software (unless vendors required purchasers to sign contracts that effectively recreated copyright).

1:16 PM  
Blogger Samir Chopra said...

Crosbie, if there was no copyright and therefore copyright law, everything written would just pass into the public domain, right? What then would prevent a proprietary code writer from using trade secret law (which is not affected by the absence of copyright law) to keep their modifications to a public code base secret? That would be the form of non-reciprocal borrowing the GPL aims to prevent. Proprietary vendors don't need copyright law to keep their code secret; they only need it prevent copying of their executables. The code remains a trade secret. In a world without copyright law, GPL software would not be protected against the kind of non-reciprocal borrowing from code commons I described above. Getting rid of copyright won't get rid of trade secret law. If you could get rid of trade secret law as well, then perhaps the GPL won't be needed.

3:49 PM  
Blogger James Grimmelmann said...

Trade secret law is an uncertain route to protecting source code. Under orthodox statements of trade secret law, it won't prohibit someone from decompiling the object code and reverse engineering it. There have been cases that apparently rejected that proposition, but in at least some of them, the defendant didn't actually reverse engineer the object code, but instead gained access to the source directly through other means. In any event, I'd imagine that Crosbie would be quite happy to eliminate trade secret law as it applies to software along with his proposed elimination of copyright law, so I don't think Samir's last response is quite on point.

That said, the GPL doesn't quite take us to where we'd be if there was no copyright law; it takes us to a slightly better place.

If copyright law didn't exist, there would be enormous, perhaps insurmountable obstacles to successful Free software as we know it. Copyright law is the only weapon that the GPL has to keep downstream programmers from creating proprietary forks of the code which they then keep secret through obfuscation. Yes, they wouldn't be able to sue anyone who decompiled their programs, but they could still make it very difficult to build on their work. The copyleft source code requirement is one of the most important elements of the GPL, and it's hard to see how to impose that requirement without at least a little leverage from copyright law.

4:30 PM  
Blogger Crosbie Fitch said...

Copyright is nothing to do with privacy or trade secrecy.

I can take GPL software, modify it, and I don't have to publish my modifications.
This remains the case without copyright. I can take published software, modify it, and I don't have to publish my modifications.

And just in case it isn't clear, I wholly support the natural right to privacy. In other words I'm a firm proponent of intellectual property, rights pertaining to it, and so abhor intellectual property theft.

But, then I'm also a champion of cultural liberty and against its unethical suspension via the mercantile privilege of copyright.

The 'copyleft source code requirement' is actually the least important aspect, and really simply to nudge people to do what they'd have to do eventually anyway.

Ask Richard Stallman if he had a choice between abolishing copyright or keeping it, which he'd choose.

"If copyright law didn't exist, there would be enormous, perhaps insurmountable obstacles to successful Free software as we know it." is the kind of nonsense I'd expect from IP Maximalists.

Good luck figuring out how you need the unethical constraints of copyright to set people free.

5:58 PM  
Blogger Samir Chopra said...

James, fair enough. The existence of trade secret law as a way to hide code is not so crucial to my point as much as the fact that copyright law helps the GPL work, and that without it, a protective strategy for the FOSS community would not be available anymore. (And in any case, I hadn't assumed that the abolition of trade secret law was also on the table!)

Crosbie: I know that you can keep modifications private. Its the keeping-modifications-private in future distributions of the code that the GPL is designed to help with. Also, I don't think RMS has in mind the wholesale abolition of copyright (he makes a distinction between different kinds of works, and what sorts of protections would be appropriate for them; see this discussion for instance).

8:17 AM  
Blogger Crosbie Fitch said...

The mechanism of rectifying the ills of the proprietary software business model in the presence of copyright is going to be understood differently from why 'compulsory disclosure of source to published works' is entirely unnecessary in a world without copyright. The latter takes a lot more thought (given not many people have actually thought how things would work without copyright).

Consider vendor A who offers s/w X without source, and vendor B who offers equivalent s/w X', but with source. Both the same price $P, both cost the same to develop. No purchaser with their head screwed on is going to pay $P to vendor A for a mere binary, when they know that they can get the far more useful source from B for $P. In a competitive market (without copyright), binaries will necessarily be given away to help demonstrate that the source code is worth the money. In a world without copyright, software is the source code, source code is the product, the work, the value. So, there's no need to compel source code disclosure, because there'll be no money in keeping it secret.

From another perspective, try imagining a world without copyright (and software patents). Then tell me what liberties are suspended from software engineers. There are no liberties suspended. It is only copyright and patent that suspend any liberty. "Ah, but", you say, "we would need to introduce a new law to make it illegal to publish binaries without (unobfuscated) source code". No you wouldn't! You don't need to recreate the source code disclosure requirement of the GPL in a world without copyright - it was only tolerable in a world with copyright. A world without copyright operates quite differently. If you did introduce such a new law, it would be just as unethical as copyright itself. Would you send stormtroopers to raid the homes of kids who'd released binaries of some cool 3D graphics demos they'd just written (without publishing source too)? Or would you say, "Oh, well, as long as they hadn't based their code on anyone else's". And then we're right back to the idea that an author gets to decide who can or can't build upon their work, e.g. "You can only use/modify my stuff if you publish source". Let's get rid of all laws that restrict what you can or can't publish, unless: you impair truth, violate privacy, or endanger life (three rights that ethically constrain our cultural liberty).

Anyway, despite the curious notions RMS has in determining that some works may warrant copyright, do ask him which world he would prefer (Copyright+S/W Patents+GPL vs No Copyright+No S/W Patents+No GPL).

I think RMS hasn't properly realised that works that express someone's opinion do not need protection against copying or modification, but against misattribution (an opinion cannot be changed by modification). Misattribution concerns the right to truth which ethically constrains speech/expression independently of copyright's unethical constraint against reproduction or derivation.

1:31 PM  

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