Date: Fri, 21 May 1999 12:59:20 +0100 From: Charlie Stross To: letters@lwn.net Subject: On copyright, free software, and being Restrictively Unrestrictive There's something of a row going on at present over the ideological or political trappings of the FSF, and specifically the GPL. Various people have been throwing accusations around ("Richard Stallman is a communist", for example). Others are saying that the GPL is restrictive and is an attack on non-open-soure software. I think these people are completely missing the central point. The free software movement is like the little boy standing by the parade, pointing at the Emperor, and shouting "but he isn't wearing anything!" The emperor in question is, of course, our current notion of intellectual property. Let's go and take a peek through the wonderful cinemascope time-viewer, and replay some interesting bits of history, Back before the Gutenberg revolution, if you'd suggested the concept of copyright to anyone who was literate they'd probably have stared at you as if you were mad. Copying information was a highly labour-intensive operation: a mass market for duplicated texts simply didn't -- and couldn't -- exist. Patents -- or their forerunners -- existed, in the form of royal grants to some individual or guild to have exclusive ownership of some tool or mechanism for production, and the guilds had their secrets, but the legal basis for ownership of trade secrets was different from the basis we understand today: you owned one because the King said he'd hang anybody else who muscled in on your turf (as long as you behaved yourself and paid your taxes). The contemporary explanation of patent rights would be incomprehensible, because the concept of a society based on a social contract and mutual observation of rights didn't exist: there was no mechanism whereby society (or its legislators) could agree to grant rights to inventors in order to encourage their creativity. Let's hit the fast-forward button a bit, and take the leap into the age of enlightenment -- post-printing-press, post-monarchical. Duplicating texts had become a problem by the nineteenth century. Earlier solutions included licensing printing presses, but in a society that encourages free speech there's no obvious justification for that. A situation arose where any aspiring novelist who published a book would be vulnerable to unscrupulous printers copying their work and re-selling it, pocketing the profits that accrued. Mass literacy brought its own new social problems. The solution to this problem was the idea of copyright; that the author of a work had the power to grant a right of copying over it. A sensible and moderate solution within the context of the time, because printing presses were big and pirate printers could be tracked down and sued in civil court. A similar approach was taken to inventions; it was merely common sense that an inventor who came up with a genuinely new innovation should have the right to reap some profit from it before carpetbagging imitators duplicated the idea and swamped the market. Patents originally were a sign of progress; by protecting inventions they made it feasible to publish details of them, rather than trying to maintain the secrecy surrounding them. This in turn encouraged a climate of invention. Secrecy, as we should all know, is one of the enemies of progress. And now let's hit that fast-forward button again and jump all the way to the present day. The concept of copyright has been over-extended. From protecting an individual author's rights to their work, it has been extended to protect vast corporations. From covering published books and pamphlets that some individual slaved over, it now covers what a Marxist economist would call alienated labour -- the capital accumulation of information. By extending copyright seventy years after the author's death our legislators haven't done anything for their surviving families, but have taken a large chunk of our common cultural heritage and handed it over to faceless corporations who can dole it out on a commercial basis. By extending copyright cover to music, the legislators have granted new rights: the music industry in turn is concerned with constructively extending their copyright in such a way that the consumers pay per performance, rather than paying a one-off purchase fee related to the recording medium. And so on. The patent laws have also been shown to be defective. Software patents run for the same 20-year period as normal patents: but in the febrile world of software, 20 years covers as many generations as 75 years in the automobile industry or 250 years in the construction industry. Meanwhile, patent agency staff who are manifestly untrained for the task grant patents on inappropriate inventions and things which simply are _not_ inventions, such as the algorithms underlying public-key encryption. By granting patents on mathematical principles, they are hampering the growth of the industry rather than fostering it; it's as if they had allowed some company to patent the refractive index of glass and claim royalties from any other company producing materials that shared that physical characteristic. And so, we come to the free software movement: loudly declaring "but your whole idea of copyrights and patents and selling something that can be copied freely is a load of crap! Charge for support and services, make the software itself free, and you won't have to deal with these internal contradictions!" Well, time will tell. Personally, I think the answer is a thorough overhaul of copyright and patent laws, drafted not from the point of view of the big multinationals (who want to be able to copyright database schemas and patent mathematical theorems if it helps them make more profits) but from the point of view of the original agreed social goals -- to protect the writers (and programmers, and musicians) from plagiarism, and to encourage the inventors to keep inventing and raising our standard of living. -- Charlie Stross (Linux columnist, Computer Shopper (UK))