Don’t Let “Intellectual Property” Twist Your Ethos
by Richard Stallman
June 09, 2006
Most free software licenses are based on copyright law, and for good reason: Copyright law is much more uniform among countries than contract law, which is the other possible choice.
There’s another reason not to use contract law: It would require every distributor to get a user’s formal assent to the contract before providing a copy. To hand someone a CD without getting his signature first would be forbidden. What a pain in the neck!
It’s true that in countries like China, where copyright law is generally not enforced, we may also have trouble enforcing free software license agreements, as Heather Meeker suggests in her recent LinuxInsider column, “Only in America? Copyright Law Key to Global Free Software Model.”
However, this is not a reason to press for more copyright enforcement in China. Although we would use it to protect people’s freedom, we have to recognize that mostly it would be used by the likes of Microsoft, Disney and Sony to take it away.
Ironically, we might have more success enforcing copyright in China than Microsoft, Disney and Sony—because what we would want to do is easier.
Disney wishes to stamp out semi-underground organizations that sell exact copies. With free software, regardless of precisely which free license is used, that kind of copying is legal. What we want to prevent, when the free software license is the GNU GPL, is the release of proprietary software products based on our code. That kind of abuse is at its worst when carried out by large, well-known companies—and they are easier targets for enforcement. So GPL enforcement in China is not a lost cause, though it won’t be easy.
No Chinese Laundry
Nonetheless, Meeker’s claim that this leads to a global problem is simply absurd. You can’t “launder” material copyrighted in the U.S. by moving it through China, as she ought to know.
If someone violates the GNU GPL by distributing a nonfree modified version of GCC in the U.S., it won’t make any difference if it was obtained or modified in China. U.S. copyright law will be enforced just the same.
Although this error might seem to be the central point of Meeker’s article, it is not. The real central point of the article is the perspective embodied in her use of the term “intellectual property.” She uses this term pervasively as though it refers to something coherent—something it makes sense to talk about and think about. If you believe that, you have accepted the article’s hidden assumption.
Loose Language
Sometimes Meeker switches between “intellectual property” and “copyright” as if they were two names for the same thing. Sometimes she switches between “intellectual property” and “patents” as if they were two names for the same thing. Having studied those two laws, Meeker knows they are vastly different; all they have in common is an abstract sketch of their form.
Other “intellectual property” laws don’t even share that much with them. The implication that you can treat them all as the same thing is fundamentally misleading.
Along with the term “intellectual property” goes a false understanding of what these laws are for. Meeker speaks of an “ethos” of “intellectual property” that exists in the U.S. because “intellectual property is in the Constitution.” That’s the mother of all mistakes.
What is really in the U.S. Constitution? It doesn’t mention “intellectual property,” and it says nothing at all about most of the laws that term is applied to. Only two of them—copyright law and patent law—are treated there.
What does the Constitution say about them? What is its ethos? It is nothing like the “intellectual property ethos” that Meeker imagines.
Failure to Execute
What the Constitution says is that copyright law and patent law are optional. They need not exist. It says that if they do exist, their purpose is to provide a public benefit—to promote progress by providing artificial incentives.
They are not rights that their holders are entitled to; they are artificial privileges that we might, or might not, want to hand out to encourage people to do what we find useful.
It’s a wise policy. Too bad Congress—which has to carry it out on our behalf—takes its orders from Hollywood and Microsoft instead of from us.
If you appreciate the U.S. Constitution’s wisdom, don’t let “intellectual property” into your ethos; don’t let the “intellectual property” meme infect your mind.
Practically speaking, copyright and patent and trademark law have only one thing in common: Each is legitimate only as far as it serves the public interest. Your interest in your freedom is a part of the public interest that must be served.
This is interesting.
First off, about the copyright vs contract law thing, the U.S. case “Software Freedom Conservancy v. Vizio Inc” case is currently apparently changing that with regard to the GPL family of licenses specifically. (And very likely could have implications for other copyleft licenses like some of the Creative Commons licenses.) Specifically, the SFC has requested and the courts have agreed to interpret the GPL through the lens of U.S. contract law. (I don’t know to what extent appeals might completely change that, but right now it seems like probably “the GPL is a contract” for the foreseeable future.)
I don’t know anything about how uniform or not uniform copyright and contract law are in different countries. So I’ll leave that topic alone.
It would require every distributor to get a user’s formal assent to the contract before providing a copy. To hand someone a CD without getting his signature first would be forbidden. What a pain in the neck!
I think this is basically entirely incorrect (though maybe reasonable to have thought back in 2006.) I think the way the courts are interpreting the GPL is in terms of a unilateral contract (a contrat offer that anyone is able to enter into by performing a particular action – kindof like a “be the 10th caller to win a 100$ gift card” or “lost cat, $200 reward”) that is accepted/entered into specifically by taking the GPL up on its grant that anyone may propagate the work.
The “Failure to Execute” section is wise, I’d say. The clause that justifies copyright and patent law in the U.S. Constitution goes:
[the United States Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
“To promote the Progress of Science and the useful Arts” seems like the bit where he’s getting the idea that copyright and patent are only legitimate in that they serve the public good. Trademark’s justified based on the “Interstate Commerce clause” but mostly exists to prevent brand confusion (intentional or otherwise) among consumers. (Though, as mentioned by Stallman near the end of this essay, there’s a large extent to which all three are applied only in the interest of special interests.)
If you appreciate the U.S. Constitution’s wisdom, don’t let “intellectual property” into your ethos; don’t let the “intellectual property” meme infect your mind.
Practically speaking, copyright and patent and trademark law have only one thing in common…
I get what he’s saying here. And maybe it would in some ways be best if there wasn’t an “intellectual property” community. But I think there is at least one more thing copyright, patent, and trademark law have in common: They’ve all been coopted by special interests to fuck over the public interest for private gain.
Plus I think using the term “intellectual property” more loosely can be very helpful. If you consider the story that started the Free Software Movement in the first place about the Xerox laser printer from 1980, proprietary software predated copyright first applying to software. Companies used NDAs to make software proprietary. And so contract law is relevant to proprietary software and FOSS. Disney is using Steamboat Willie as a trademark to retain some control of it. So, while it’s true that copyright, trademark, and patent (and contract) law are all different things, a lot of times they intersect in what concerns they might bring up.
In all, it’s a good essay to generate some discussion for sure.