Weakening Copyright is Weakening Free Software (Part 1, Background)

This is going to be a defense of copyright law, on the grounds that it is the primary enabler of the open-source software ecosystem. I actually believe that there are lots of things wrong with the current state of copyright law, that most recent “reforms” have made things worse, and that the DMCA is a disaster. However, efforts to push back copyright protections, especially by technically minded people and the “information wants to be free” crowd, are misdirected and could well produce effects against their interests.

Copyright In Brief

What It Is

First, a quick review: “copyright” is the legal basis allowing the author/creator of a “work” to control and limit the creation of copies of that work. Copyright pertains to lots of things (writing, music, computer software, video, art, etc.), but protects only the form of those things and not the ideas that they contain.

For example, you and I could both sit down right now and write physics text books. Assuming we both did a good job, the ideas communicated by the two books would be very similar or identical. But we’d almost certainly have created a different presentation and used different words, and both our books would be protected by copyright. Other people couldn’t copy your book without your permission, but I could make copies of mine because I created it myself and didn’t copy you, even though both books describe the same things. (Technical ideas, rather than particular presentations of ideas, are protected by patents, a completely separate field of law complementary to, but not connected to, copyright law.)

Though there are procedures and reasons to register your authorship of a work, it isn’t actually necessary in the U.S. Your right to control the copying of your work exists simply because you created it. There are limits to copyright. First, it eventually expires. Second, there are limited types of copying and excerpting described as “fair use” that cannot be prevented by asserting copyright, such as brief quotations or use of portions for the purpose of satire.

Why We Have Copyright Law

Copyright is so ubiquitous most people don’t think about why it exists or why it is enforced by the government. But there actually are reasons. One family of reasons are basically moral/ethical. People argue that people automatically own what they create, even if what’s created is more idea than object, and that making an unauthorized copy of something is essentially theft. And just like other thefts, it is the government’s place to establish the precise definition of the crime and to protect each of us from everyone else. This is a fine argument as far as it goes, but other people argue that it isn’t reasonable to equate taking a loaf of bread form someone with making a loaf of bread from someone else’s recipe without their permission.

Another set of arguments is more pragmatic, and looks at the question from the perspective of how the existence of copyright for an individual contributes to the public good as a whole. In this line of reasoning, by protecting an author’s ability to limit and control the number of copies of their work, it makes it easier for the author to make a living, and hopefully authors will therefore (on average, across society) produce more works than they would otherwise. Counter arguments here primarily question the degree to which creative works would actually fail to be created in the absence of copyright, and whether the restrictions on distribution of information that copyright creates damage society more than the actual benefits from enforcing it.

Copyright’s Part in Free Software

A computer program is Free Software if it is (1) publicly available for use and modification, and (2) people modifying it are obligated to also make their changes publicly available. Making software publicly available is something the author would do, and isn’t at all difficult today. Imposing the obligation to redistribute on people who author modifications to the software was the unique contribution that Richard Stallman when he coined the phrase Free Software and started writing and distributing his own Free Software as part of the GNU Project.

The obligation of modification authors to redistribute their work (and under the same terms as the original) is accomplished using copyright law. Because the original software is copyrighted by its original author (under U.S. law, whether the author wants it to be or not), the author must explicitly grant others the right to copy that software through a license before they can use it. Whether or not something falls under the name Free Software depends on the terms of that license.

Stallman created the GNU General Public License (the GPL) and uses it for the software he writes. The GPL obligates people who are modifying their copies to in turn publicly distribute and license their modifications under the same license as the original. He refers to this license as a copyleft, because while copyright law allows authors to restrict access to their work, the GPL mandates that the authors of modifications share their work.

Not all Free Software licenses are copyleft licenses. As long as a license gives people the freedom to redistribute copies of software (modified or not), it is a Free license. It is only if the license mandates distribution of modifications that it is a copy-left license.

Next the is Part 2 for some arguments against copyleft specifically, and a description of the “Embrace, Extend, and Extinguish” product strategy and Part 3 addresses different licenses and summarizes.