Re: [ox-en] [Fwd: <nettime> dossier: WIPO knuckles under on open-source software]
- From: Russell McOrmond <russell flora.ca>
- Date: Sun, 12 Oct 2003 13:31:28 -0400 (EDT)
On Sun, 12 Oct 2003, Graham Seaman wrote:
for me, that associates it with the people who think they can be
proprietors of ideas, programs, or whatever, because they either bought
the copyright, or bought a persons rights over their own creations by
employing them with a contract that says the rights (which IMO an author
always should have) belong to the employer, not the author.
The problem in this case is that the use of the term "non-proprietary
software" vs "proprietary software" becomes like "open source software"
and "Free Software" in that it is not the software that is different, but
the motivations.
Quite a bit of FLOSS is copyright by the employer, and quite a bit of
non-FLOSS is copyright by the author. While I may disagree with
intermediary rights in copyright (intermediaries should be licensed under
contract law, not be allowed to hold copyright), and believe that only
citizens and creators should have rights, I do not confuse this copyright
reform issue with FLOSS.
I don't think the majority of people whose names are on free software
think they are 'proprietors' of it - which doesn't mean either that they
don't, or that they shouldn't have, rights over it.
If this were true then there would be much less opposition to the
attempt to appropriate the Linux kernel by SCO ;-)
To be a proprietor means you have certain rights to control what you own
(remembering that with copyright you only own limited rights set out in
the copyright act, not the idea or even the expression of the idea).
Copyright does not (and/or should not) dictate what you do with that
control, and using business models outside of manufacturing or being
philanthropic are just some examples of the rights of being a proprietor.
If all software was simply in the public domain, which is what it means
legally to be non-proprietary, then that right no longer exists.
Just like the debate between Open Source and Free Software, we simply do
not know the motivations of these developers. You can't say they don't
think of themselves as proprietors any more than someone else can say they
think of themselves as freedom fighters (the FSF view, which I personally
believe is a minority of FLOSS developers).
For talking to people who are completely outside software, I think
'closed source' is actually the clearest term, though obviously you can
pick holes in that if you're on the inside. But that's if you're looking
for a term to explain, rather than accurately define, it.
Two words can never explain what we are doing ;-) We are talking about
a radical clarification of the creation of intangible goods that can be
seen as indicative of a post-Industrial mindset. This is the type of
stuff that takes books-upon-books to explain ;-)
I tend to say non-Free/Libre Software to both explain and be accurate.
I can then define what Free/Libre Software is (point to the FSF
definition, etc) and say that the "other stuff" is simply software that
does not fit that definition.
It happens that Open Source Software (as defined by the OSI) fits the
definition of Free Software (as defined by the FSF), and differs only in
the motivations of the creators. A standard Microsoft copyright license
does not fit the definition and thus is an outsider.
I find the use of the term "closed source" to mean the opposite of "open
source" ends up getting you into arguments about the definition of open
and closed in relation to source code. The Shared Source Initiative from
Microsoft is very much "open" to (mis)interpretation.
Good luck on this. If you come up with better *English* terminology
that is both easily understood and dictionary-lookup correct you may get
honorary degrees in linguistics for it. My short-form of all these debates
can be summed up in two words: English sucks ;-)
Logiciel Libre, Software Libero and other such phrases are just so much
more precise, and likely so much easier to find a two-word phrase to mean
the opposite.
Have you actually got an example of a case where saying 'proprietary
software' has harmed us?
I have sat in Industry Canada meetings talking to bureaucrats who were
surprised to hear that FLOSS was protected by copyright, and relied on
software license agreements (contract law) to enforce being FLOSS. They
were of the mistaken belief that Free Software was in the public domain,
and that FLOSS creators had waived all their rights. I had one person say
that it was because Free Software was supposedly non-commercial and
non-proprietary that gave them that impression.
I also believe the political success of the US delegations at WSIS and
WIPO opposing FLOSS is largely because of the (mis)use of the term
'proprietary software'. The WIPO meeting was postponed (they say
canceled, but I disagree) with the US saying that open source is opposed
to intellectual property (in this case including being opposed to
copyright) and thus has no place at WIPO.
The mandate of the WIPO is not to promote royalty-based business models
or promote the idea of treating intangible works of the mind as if it were
manufactured physical property. http://www.wipo.int/about-wipo/en/
The World Intellectual Property Organization (WIPO) is an
international organization dedicated to promoting the use and
protection of works of the human spirit.
FLOSS is methodology for the creation of works of the human spirit that
promotes use and protects the easy ability to create and use derivative
works. Given this it is just as (if not more) related to the mandate of
WIPO to be investigating and promoting FLOSS than promoting legacy
"software manufacturing" which discourages use and restricts creators from
derivative works (most software is a derivative work in one way or
another).
The name of the organization and the "intellectual property" language is
very unfortunate, but we should be challenging WIPO to fulfill their
stated mandate. This is a forum that we should be promoting our beliefs,
not a forum to be ignored.
My main point is to suggest that our use of the term "proprietary
software" is equally unfortunate as the use of the term "intellectual
property" as it suggests an interpretation of the phrase that is harmful
to our interests.
It seems to have become quite common even in the standard, non-linux etc
computer press, but I've never seen its use distorted in such a way it
seems harmful. I'm sure MS can twist any term we use though :-(
It is not that it is distorted. It is that if you look up the phrase in
a dictionary that you get a definition that is harmful to us. Microsoft
doesn't need to twist the term as it is us that is twisting already
existing terminology to suggest something different than dictionary usage.
We know we have political opponents here that will try to derail our
progress. When we were just a small group of activists spread over the
net it wasn't really important what terms we use. Now that our movement
and beliefs are being discussed within the bowels of most governments and
international agencies we need to try to be as clear as we possibly can.
I do think that eventually those models will be out-competed by free
software and become obsolete (and in other fields too, not only software -
especially as the 'tangibles' become increasingly intangible. Copyright
law applies to hardware designs too, not just software. I don't think your
'clean' separation between physical and non-physical goods will be tenable
in the long run).
Patent law is a type of law that only (and barely ;-) makes sense in the
manufacturing sector. As more of our economy moves out of the
manufacturing-focused Industrial revolution and into some sort of
post-industrial economy, these laws will need to adapt as well.
A recognition of the separation between the creation of tangibles and
the creation of intangibles is needed today to allow the new economy to
grow without always being held back by old-economy ideologies.
To clarify the separation: Intangible knowledge is used in the creation
of tangibles. It should not be allowed to follow that the legal constructs
used to create a temporary monopoly on these processes or expressions
should be used for the intangible knowledge used in the creation of other
intangibles.
Extending patent law from processes involving the manufacture of widgets
(tangible goods) to processes involving the development of knowledge
(intangible goods) is a huge illogical leap that should never have been
allowed. Patent lobbiests and other special interests such as patent
offices and patent courts performed this illogical leap to protect their
legacy interests in a changing economy. Citizens and government must step
in and correct this nonsense.
However, this process can only happen if laws allow it. You sound more
optimistic than I feel about being able to change the law in a positive
direction - to me it seems more like a continual rearguard action, where
most of what's being achieved is just a slowing down of a process going in
completely the wrong direction (eg. the EU decisions on software patents,
which may yet be completely reversed).
I am involved as a citizen volunteer group called the GOSLING (Getting
Open Source Logic INto Governments) Community
<http://www.goslingcommunity.org/>.
I'm not standing by the sidelines but am constantly authoring policy
submissions to consultations (Current document is
http://www.flora.ca/copyright2003/ - feedback always appreciated,
especially before deadlines ;-), and have had the opportunity to speak to
many civil servants on the matter.
We need to realize just how powerful we are as citizens. I am not part
of some powerful industry lobby group and yet I have stood in front of
some pretty senior people in the Canadian government to talk about FLOSS
public policy. If there were more people who had this passion, even more
could be accomplished.
From my point of view, I'd see what you're trying to achieve as an
intermediate stage which is already a big improvement on what we have
now; from your point of view, isn't it useful to be able to point to
radicals who'd like to change the whole system and say 'look, if you
don't agree to these sensible and achievable reforms you're going to be
stuck with those lunatic radicals'? It seems to be quite a common way to
get reforms achieved - a kind of pincer movement.
Having the radicals there as a way to suggest a middle ground only works
if those radicals are taken seriously. Nobody is going to be "stuck with
those lunatic radicals" as nobody is paying any attention to them.
I have to work to separate my work from those radicals. I clarify to
traditional creators rights groups that I an *not* one of those people who
wants to abolish copyright. I try to clarify to Industry Canada
supporters of the tangible manufacturing sector that I am *not* one of
those people who want to abolish patents, just keep patents out of the
creation of intangible goods or other goods outside of manufacturing. I
use the term FLOSS to try to include all contributors to the movement,
regardless of what their particular personal motivations are (freedom
fighting, engineering proficiency/scientific peer review, code=law
accountability/transparancy, etc).
And if you do achieve everything you've listed above, I suspect the world
will look so different both of us will be revising our opinions about
what else (if anything) needs to change... :-)
For this we will just have to wait and see. You may think I am naive
but I believe it is a matter of "when" and not "if". When this happens we
will hopefully still have forums like this to see how views change ;-)
http://www.in3activa.org/dic/vr4ir.html (this idea seems to me as much a
stroke of genius as the original gpl, though in a different direction.
I only glanced at it but it looks like an implimentation or RMI (Rights
Management Information) recognizing public goods and not just private
goods. I think this is a great idea as it is a form of RMI to protect
creators rights rather than current RMI assumptions that only protect
intermediary privilege.
The assumption that the only way to compensate creators (the only
'material right' worth protecting) is royalty payments is a misconception
that needs to be fought very hard. In Canada we have something called the
"private copying" regime that collects a unaccountable tax on all blank
audio recording media (whether used for music or not, such as blank CD's)
and makes a royalty payment (through legacy industry associations) to
music copyright holders. I wrote an article in a publication that is
visible to policy makers in this area indicating just how much of a threat
to creators rights this represented:
http://www.flora.ca/cnm20030207.shtml
and
the free software act
http://freesoftwareact.fsc.cc/act.xhtml
This appears to be the 'head in the sand' approach I've seen before.
Free Software has many similarities to other open collaborative methods
for the production of public goods (both tangible and intangible). By
focusing on Free Software as if it were unique these people isolate
themselves from the greater public policy implications of their work.
Software not being a manufactured good, and thus should not have patent
law imposed on it, is not unique to software. In some political circles I
make reference to Chomskey's "Manufacturing Consent" and say that:
http://www.flora.ca/russell/
Information processes such as software or business models should not
be thought of as being manufactured any more than consent should be
thought of as something manufactured. We should not believe that
manufacturing consent, software manufacturing or business model
manufacturing is the only option, so these information processes
should not be thought of as patentable inventions.
I included this in a presentation on FLOSS public policy to an
e-Government class at the School of Management of Ottawa University. It
seems that the business students don't know anything about Chomsky as
they simply didn't get that joke ;-)
---
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
Governance software that controls ICT, automates government policy, or
electronically counts votes, shouldn't be bought any more than
politicians should be bought. -- http://www.flora.ca/russell/
_______________________
http://www.oekonux.org/