Re: [ox-en] GPL Restrictive
- From: Martin Hardie <auskadi tvcabo.co.mz>
- Date: Thu, 13 Nov 2003 18:25:01 +0200
Dear oekonuxers
I hesitated to send this ... I was not going to and then i said to myself
"what the heck" (anyone remember the Go Betweens and Lee Remick?)
This was a was private chat between Felix (virtually hit me later mate sorry
and I have addes a couple of things to our converstaion) and myself where he
told me that Ihad been reading too many SCO court documents for my own good!!
I want to write this properly soon but maybe this will just prompt some
reactions which might help me. I have added some mroe links re the
restrictive thing at the end
Anyway
here goes
Martin:
what I am trying to get a handle on is the rhetoric of the different sides of
this thing.
I read stuff from Microsoft or their ngo (its name I forget) that floss is
anti competive and the adoption of floss by governments is in breach of some
competition/free market treaties...
There is a line of US Supreme Court cases that say liberty equals freedom to
contract and that restraints on this are unconstitutional ... it says more
than that but it fits in nicely with the reports for example that some US
Congressmen wanted the gpl banned as it stopped people propertising (sic)
code.. that is it removes inchoate property from the market (see the link from
the age below)
so I am trying to think about this
On the other hand all the liberty stuff and freedom stuff from the other side
is to me at times equally hollow (comrades I am not talking about this list
here more the US libertaire stuff, Lessig, Benkler etc etc)
Both sides ignore (or the liberal in the us sense) side at least ignores that
the reason IP is being commodified is because of the necessities of capital -
iraqi bombers and file sharers are two sides of the same coin (I am speaking
shorthand of course!)
But you will be pleased to know that i have left reading sco documents but i
find the Moglens and others just dismissive of the rhetoric of the other
side and I dont think that helps. They are involved in a defensive and
promotional exercise and not giving us any way to understand where the other
side is coming from. it is important to understand the view of corporate
global sovereignty in this dispute.
For the Moglens to say the SCO arguments are nonsense is like Lessig saying
Eldred was a 100% sure bet. (sorry Lawrence you lost that one on a predicable
majority) It may be from their point of view but from the point of
view as law as a vehicle for corporate (imperial) capital the gpl
restrictive/Floss anti competetive stuff is not nonsense. It is hard market
reality (ie the future of info capital - 3rd capitalism as Yann Moulier
Boutang calls it).
I am arguing with myself at the moment about all this. SCO may not win but it
is the rhetoric behind it that has a chance over the longer term.
Hence any defensible position of FLOSS or community knowledge in general I
think has to try and go beyond what the US legal academics are trying to do -
ie fit it into some nice cuddly warm version of the market. Ntewoked, free but
still capital. To me this is just capture in the Deluzian sesne or inthe way
Hardt and Negri wrote about capital changing its spots to meet the challenges
thrown up at it.
I just read another one now:
http://www.law.georgetown.edu/faculty/jec/Lochner.pdf.
RE:
<you are free to set
the terms as you want it.
yes this is the "libertarian" (or that's what I am calling it for now) view,
the floss view,
but the Lochner/Renhquist view is that you cant restrict anyone
else form doing the same with gpl like provisions. Here in this world view
normal copyright is not restrictive as it allows you to exclude others and
produce commodities for sale. The pinnacle of all society and progress.
gpl is restrictive because it doesnt allow me to exclude others thus in this
view destroying its status as property or potential as property (pty as the
right to exclude others) the one thing the US of A was established to promote
in the first place (they believe - just ask Cheney or read Madison or the late
19th century or current US Supreme Courts etc etc as I have been for the last
few weeks)
here is the problem.
I need to go through all this to put some order into my thoughts and to bring
those Empire type characterisations of law I was trying to develope earlier in
the year as not being normative based but funcionally based into perspective
for considering Floss et al
I will try and have a draft something next week but work means that I have
less time in the day now...(laugh I am working as a trade mark lawyer!)
but is this rave any clearer??
http://www.theage.com.au/articles/2002/10/24/1035416921766.html
http://mm.gnu.org.in/pipermail/fsf-friends/2002-October/000221.html
http://www.brouhaha.com/~eric/editorials/gpl_evil.html
http://www.daemonnews.org/199906/gpl-evil.html
http://mail-index.netbsd.org/netbsd-advocacy/1999/06/07/0005.html
http://www.daemonnews.org/199905/gpl.html
Thanks
Martin
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