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[FYI] Lessig on OSS, GPL, SWPAT, DMCA, DeCSS
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- Subject: [FYI] Lessig on OSS, GPL, SWPAT, DMCA, DeCSS
- From: "Ralf Stephan" <firstname.lastname@example.org>
- Date: Mon, 8 May 2000 14:55:20 +0200
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Ausdrucken, einrahmen, aufhängen...
Q: Do you think that there are other things that the government ought
to be doing to promote open source?
A: Well, I think Jeff Taylor's point in the essay on [TAP Online] is a
good one -- one ought to be anxious about government trying to come in
and help communities do what they are already doing well. One
extremely damaging form of regulation exploding in cyberspace right
now is patents. I was just at a conference here in Berlin two days
ago, and an attorney for an open-source company was describing a
project where in order to release a certain software package, they
were going to have to negotiate with 100 different patent holders for
it to be released in the United States. Closed-code systems are in a
better position to negotiate these patent rights than open-code
systems because . . . it is hard to negotiate a license when anybody
can take the basic fundamental structure. This is another reason to be
anxious about the explosion of patents in cyberspace because one
consequence could be the destruction of the open-source movement. And
for those of us who are skeptical that patents are doing any good, the
fact that it would do this harm is just another reason to be concerned
Q: Most of the time, the argument in favor of patents is that people
wouldn't invest their time and money in developing new things if they
might be stolen.
A: I agree with this argument as a possible argument, but the
important thing is not to let empirical claims become a priori truths.
The fact is that we have seen an extraordinary explosion of innovation
and effort in cyberspace, absent any of these patent protections. To
the extent that people will not invest their time and energy in
developing things unless they can be guaranteed some form of return, I
offer in evidence the Internet. And the Internet is proof of the
contrary assertion that, in fact, in a context of shared information
and shared productivity, people do produce and invest in a way that
does give them a return but not one that needs patent protection. What
we should do before we muck up the space with all these costly patents
is investigate whether or not they are necessary.
Q: You protest a provision of the Digital Millennium Act that
prohibits mechanisms used to foil technology that protect anything
that is copyrighted [the anti-circumvention provision], arguing that
it gets in the way of "fair use." Wouldn't the fair use argument
create a loophole through which netizens can listen to music, watch
movies, and read literature without paying the people who toiled to
produce them? And doesn't that discourage creativity in the end?
A: Copyright owners sold books, movies, and music to people, and the
law protected copyright holders' rights and also protected
individuals' rights. Individuals had a right to fair use to material
-- even if they hadn't purchased it -- and they could make copies and
reproduce the material if they wanted, independent of copyright
owners' rights. Now, one thing that the copyright law did not do was
give the owner a right to control the use of his copyrighted material
. . . and there wasn't such a technology to control the use of this
copyrighted material perfectly.
Now, what cyberspace has done is create the possibility for owners of
copyrighted material to control perfectly the use of their copyrighted
material. The first thing to note is that cyberspace has given
copyright holders more power over protected material than they had
before. Copyright law has always tried to strike a balance between
owners and the public -- not to guarantee owners perfect control, but
to guarantee them enough control to give them an incentive to produce
what they produce. The fact that technology is giving them more power
than they had before should raise a question in anybody's mind who's
concerned about balance in copyright law and whether holders are
getting too much power.
The Digital Millennium Copyright Act anti-circumvention provision is,
in my view, a perfect example of how the law is piling on in the sense
that the law is adding to the power that copyright owners have by
virtue of technology. The law is not allowed to eliminate fair use.
When you use law to protect private technology, it seems to me the law
should be as conditioned upon the values of the First Amendment as
copyright law is. If what follows from that is that copyright owners
don't have perfect control of their copyrighted material, then that is
a great thing, because that is exactly what the balance was before
cyberspace came along. Copyright has never been a law intended to give
copyright owners perfect control over the use of their material, and
cyberspace shouldn't give them that control.
Q: Do you think that with the ease with which it is possible to copy
digital music [etcetera] that it transfers the power too much in favor
of the public?
A: It could, but the technology can avoid that problem without also
giving the copyright holders perfect control over the content. So I
don't believe that people should have the right to send 10,000 copies
of their CDs to their friends. I think that is theft.
Q: But do you have to catch each person individually who does it?
A: No, you can have technologies that make it possible to trace back
to a particular person -- to identify who the pirate is and deal with
the pirate. But the extremely important fact not to miss in these
cases is what [happens in many of them is] not piracy. [Take] the DcSS
cases with the DVD movies. DcSS makes it no easier than it was before
to copy a DVD movie and distribute it illegally. All it did was make
it possible for that movie to run on the Linux operating system. That
development is not about enabling illegal copying; it's about playing
legal copies on a different operating system. So [that is a case]
where the actual hack is not about piracy. It is about enabling usage
that is perfectly consistent with copyright rights and that the
copyright law grants people.
Liebesgruesse aus Redmond!