Pawlo's copyright debates

[PILCH Hartmut <phm@a2e.de>]

Under

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

a swedish lawyer and 'opensource advocate' stirs confusing debates about
how copyright should be reformed.  I am afraid that these debates may be
receiving undue attention and detracting from the fact that copyright
(except perhaps copylock enforcement by DMCA and EuroDMCA, which should be
treated as a separate issue independent from the specific right that is
protected) is creating at most very small problems compared to those
created by software patents.

The article starts with an ill-conceived question:

> 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?

What is meant by "codified GNU GPL" ?

Does Pawlo mean a legal definition of the "public license" concept and
certain laws that operate on this definition, such as "if a university
receives state money for developping software, then this software should
be under a PL" ?

Or does he mean a legal requirement that all software should be under GPL?

His text insinuates that "codified GPL" means "banning proprietary
software" and he creates the impression that this option is being
seriously discusses and Stallman is "tilting toward it".

> 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.

This again makes no sense.

The incremental nature of programming (and book-writing) is not an
argument for banning proprietary software or for changing copyright but
rather for opposing software patents.

It is at best another argument for considering free software to be more
valuable than proprietary software and for demanding that public money
should lead to the former rather than the latter.

> 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.

Again everything messed up.
"open source software" comprises GPL and *BSD, so it doesn't fit into this
enumeration.
More importantly, nobody (except perhaps Pawlow) is proposing a ban
on licenses of whatever kind.

> 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.

This again is an artificial conflict.  Strasser does not argue against
Lessig's proposal of modified copyright.  Lessig's modified copyright
works basically in the same way as conventional copyright, but takes
account of the fact that 10 year old software is mostly without commercial
value but its source publication is of interest to the public (e.g. for
making old systems compatible, historical records better accessible etc).

> 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.

Why should it be ?

> 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.

I still find the comparison fruitful.  The source vs object distinction is
applicable to all information works, but it is more important for those
works that function and interoperate than for others.

The one basic principle of authorship right is that an author has a
special right to control what is done with his individual creation, but
not with ideas used in that creation.  I can't see a reason to deviate
from that principle in the case of software.  The problem of the term
being too long also applies to most works (especially scientific
journals), and the requirement to escrow source code at some office could
also be useful for almost any digital work.

> 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.

I prefer to replace "copyright" by "authorship right" or "individual
creation property right".  This concept is already quite balanced, and one
can always talk about further adjusting the details.  However it is
strange that people create such a lot of artificial issues at a moment
where authors are being expropriated of their individual creation by means
of patents and thus the whole construction of individual creation property
is being dismantled anyway.

-- 
Hartmut Pilch                                          http://phm.ffii.org/
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
100,000 signatures against software patents      http://www.noepatents.org/