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[FYI] (Fwd) FC: Should closed source be illegal, and the case for "l




------- Forwarded message follows -------
Date sent:      	Tue, 15 Jan 2002 05:35:42 -0500
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Should closed source be illegal, and the case for "lagom"
 	copyright
Copies to:      	mikael@pawlo.com
Send reply to:  	declan@well.com

[Mikael Pawlo is an associate of the Swedish law firm Advokatfirman
Lindahl and an open source advocate. --Declan]

---

Date: Tue, 15 Jan 2002 11:22:21 +0100 (CET)
From: Mikael Pawlo <mikael@pawlo.com>
To: declan@well.com
Subject: Re: Sweden

Here goes:


The case for "lagom" copyright

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

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?

Tim O'Reilly tried to press the issue in a couple of articles and
seemed convinced that Stallman and his colleague Kuhn was for GNU GPL
legislation. O'Reilly suggested a system where developers themselves
choose the rules under which they release software, not very much
different from the system in effect today. Eric S Raymond wrote a
satire to prove how wrong Stallman and Kuhn would be to suggest a GNU
GPL law. Raymond posed Stallman and Kuhn the question whether if they
could get a law passed making proprietary licenses illegal, would
they? Stallman and Kuhn slightly tilted towards the legislative point
of view, but never gave a straight answer whether they were for or
against a codified GNU GPL. Stallman and Kuhn wrote: "We believe,
though, that with time, as more and more users realize that code is
law, and come to feel that they too deserve freedom, they will see the
importance of the freedoms we stand for -- just as more and more users
have come to appreciate the practical value of the free software we
have developed."

Free software is very simple in its construction. It uses the
provisions in copyright law stating that the author has an exclusive
economic right of his work. Computer programs are regarded as literary
works in copyright law. Thus, the author of a computer program can
enter into any agreement regarding his work. The GNU GPL is such an
agreement. The agreement is enforceable both under the principle of
freedom of contract between and copyright law. As Stallman's legal
counsel professor Eben Moglen has told us on several occasions, the
GNU GPL still have not been successfully challenged.

Copyright law is often questioned. In an article in Wired 1994, John
Perry Barlow wrote that copyright was not designed to protect ideas or
bits of information but only to protect ideas as expressed in fixed
form. Hence, according to Barlow copyright is dead in the digital age.

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.

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. 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.

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. However, I am not convinced that
neither Strasser nor Lessig is right in their view of the software
copyright. But I choose to believe Lessig when he states that code is
law. The code layer in the networks may in my opinion affect the
freedom of speech at large. I do not think that copyright is dead in
the sense Barlow told us in 1994. Copyright is still around, and even
if itıs not effective in the digital age --as observed by Barlow-- the
courts enforce copyright. Therefore, we need to find a new way to deal
with copyright protection of computer programs. The Digital Millennium
Copyright Act and prohibition on reversed engineering is not the right
way to develop copyright. We need more transparency, but still we need
to consider the points raised by Mathias Strasser and Tim O'Reilly. 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.

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.



Mikael Pawlo


Related links:

The Economy of ideas by John Perry Barlow:
http://www.wired.com/wired/archive/2.03/economy.ideas.html

Lawrence Lessig homepage:
http://www.lessig.org/

The GNU homepage:
http://www.gnu.org/

Mathias Strasserıs article:
http://stlr.stanford.edu/STLR/Articles/01_STLR_4/index.htm

Tim OıReilleyıs My definition of freedom zero:
http://www.oreillynet.com/cs/weblog/view/wlg/526

Richard M Stallman and Bradley M Kuhnıs Freedom or power:
http://linux.oreillynet.com/pub/a/linux/2001/08/15/free_software.html

Eric S Raymondıs Freedom, Power, or Confusion:
http://linuxtoday.com/news_story.php3?ltsn=2001-08-17-016-20-OP-CY




______________________________________________________________________
___

                                   mailto:mikael@pawlo.com
                                   http://www.pawlo.com/




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