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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]

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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 itšs 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