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Re: [ox-en] GPL Restrictive (and all the rest of those threads that this grew out of)

On Fri, 14 Nov 2003, Martin Hardie wrote:

Yes this is out people in the FLOSS world view it. Fine. But the FLOSS
world is not the only world. How do the neo-libs, neo-classicists see
it? Why do they see it like that? What world does Law (capital L) belong
to? Whose interests does it serve? What is it's purpose? Whose interests
does it reflect?

  The best way I can explain the "other side" is as I presented it in my
submission to Canadian MP's on copyright reform in the overly simplified
"Software history" section. 

  I do not believe that the other side "neo-libs, neo-classicists"  or
other partisan interests who may actually agree with us on this specific
point, but the relatively small "software manufacturing" lobby.

You are not exercising a pure contract in their terms as it is not based
on market exchange, its excludes people from excluding others - this to
them is what property is about.

  This gets at the second issue, which is the question of whether patents,
copyrights and trademarks constitute forms of property or not.  In a
strict legal sense the term "intellectual property" may make sense just as
an insurance policy is intangible property.  Just as as being a life
insurance policy holder does not give property rights against the person
the policy was taken our for, being a copyright or patent holder does not
give property rights to the expression of a work (copyright) or the method

  This distinction of what the term "property" applies to is very
important.  The GPL is not a "giving away" of the property rights as a
copyright holder, but the exercising of those rights not significantly
different from non-GPL licenses from the copyright and "property" point of 

  The term "intellectual property" is also used by special interests
outside of its strict legal meaning to suggest that ideas, the expression
of a work or the method can themselves be property.

  Those in the creators rights or citizens rights movements tend to reject
the treatment of temporary monopolies on knowledge creations as if it were
a form of "property".  Existing laws and most legal interpretations agree
with this rejection.  Special interest lobbiests for the privilege of
intermediaries (the third constituency, separate from creators and
citizens) sometimes wish people to think of knowledge monopolies as a form
of property, and are using their media interests (given the mainstream
media are privileged intermediaries) to try to confuse these legal issues
for private gain.

Yes I think in part this is what I am searching for. Recall the comments of 
the head of the US Patent office - the GPL etc is anti copyright in its 
effect no matter what it says it is as it destroys the ability to create 
exchangeable commodities.

  You can recall the comments without being able to make sense of them.  
I believe this mindset is based on the treatment of knowledge as if it
were rivalrous tangible property. The problem with this rhetoric is that
the laws of nature (which exist above any man made laws) say otherwise.  
Knowledge is non-rivalrous regardless of whether any man-made laws attempt
to create monopolies on them.

  We can all debate the public policy merits of various forms of man-made
monopolies and have legitimate room to disagree.  When someone tries to
suggest that knowledge is rivalrous they are just speaking nonsense and
are best to be educated or ignored.

Seth I really like what you say here on this list but many people here
and now you have this faith that worries me.

  I don't believe he takes things on faith.  I don't have this type of
faith, and am critical of any of the analysis -- including (and sometimes
especially) from people on "our side".

  The clarification for me is that when Eben Moglen and others explain
things they back things up with factual references, while those who
disagree often only offer illogical rants and rhetoric.  Once you listen
closely to what each is saying it is easy to separate the facts from the

  Sometimes you need to spend time to figure out how the existing laws
actually work, but those of us who have taken that time have only had the
FLOSS interpretations of things confirmed time and time again.  I am not a
lawyer, but with the legal briefs and submissions I have made in the last
few years I have been able to make sense out of a lot of this.

Sure I agree that there are more ways than one that they can skin our
cat but the worse case scenario is maybe that in some way FLOSS becomes
public domain and then falls open to enclosure.

  All works under copyright eventually fall into the public domain, with 
derivative works being open to enclosure.  I guess I am not sure what you 
are getting at here.

   The laws could be changed such that software copyright licenses somehow
become unenforceable.  This type of anti-copyright movement is already
happening in some countries where it comes to music where compulsory
licensing is coupled with collective societies to strip copyright holders
of any ability to exercise their rights in copyright, replacing it only
with the largely useless "Right of Remuneration".  This is in essence what
the "private copying regime" is the beginnings of in Canada.

  The issue for us to remember is that any movement to oppose software
copyright will affect non-FLOSS software in the same way as it will us.  
Microsoft will not want to have their rights under copyright replaced with
a right of remuneration any more than we do, making FLOSS and non-FLOSS
software copyright holders allies in any fight against anti-copyright

  There are places where things will differ, such as a replacement of
software copyright with software patents which would benefit non-FLOSS and
exclude FLOSS.  This is not the argument being brought forward in much of
the currently visible discussions, and our largest private interest
opponent in this area is actually IBM who is carrying out a largely silent
patent-based war against FLOSS.

Yes it would be a bright sunny day if someone who had the FLOSS or even
a liberal view of the world

  I believe it is an incorrect assumption to believe that FLOSS represents
a liberal view of the world.  It really can be seen as an example of a new
mode of production in post-Industrial economies that is beyond partisan
rhetoric.  Those in opposition really are just the incumbent special
interests who are trying to postpone evolution.  The transition does not
uniquely fit on either the "left" or "right" of traditional politics any
more than the invention of the electric light bulb and resulting
"progress" was partisan.

  Was "the Internet" a liberal creation?  It was largely a success because
of the end-to-end principle which facilitated the creation of peers who
could use "commons-based peer production" methodologies to innovate.  It
is no coincidence that the rise of FLOSS coincided with the rise of the
Internet given they are best understood as two co-dependent aspects of the
same movement. Internet innovation could not be claimed to be a partisan
success story, but is a form of progress which happens to be compatible
with many political philosophies.

It sounds like Lessig pre Eldred. (and he still hasn't learnt - he still
says they got it all wrong doesn't he?).

  The Eldred case is very different than the discussion of the Internet,
peer production, FLOSS or even specifically the GPL.

  The Eldred case related to the "temporary" aspect of the copyright
monopoly, and what amount of time constitutes "temporary".  This is a 
debate where I have a strong opinion, but recognize that there is 
legitimate room for disagreement.  This is also not a done-deal and is an 
area of policy that is still active and can still change.

  The GPL is a copyright license that is based in exercising ones rights
as a copyright holder which is an entirely separate conversation from the
scope of copyright itself.

  Opponents of creators rights in copyright such as the US patent office
(who believe that software patents should replace software copyright) are
going to be against the GPL not because the GPL is opposed to copyright,
but because these special interests are opposed to copyright.  A
protection of the GPL is a protection of copyright against opponents of

  "Software manufacturing" lobbiests are opposing the GPL because the GPL
(and peer production in general) offers economic production and business
model alternatives which in a free market economy will largely replace the
incumbent business models which created monopoly dominance to a few
special economic interests.

  In every economic change there are winners and loosers, and "software
manufacturing" will be loosers in a transition to peer production while
the rest of the economy and society as a whole will be winners.  It is
just as easy to understand why "software manufacturing" would oppose FLOSS
as it would be to understand candle makers opposing the introduction of
the electric light-bulb.  Understanding incumbent special interests does
not mean one should agree with them and stall progress.

Take care, tell me to shut up if I am boring anyone.

  I think this is an interesting conversation.  I do hope that people can
get past some of the partisan politics.  Just because FLOSS or the GPL
happens to be compatible with a given political philosophy does not make
it partisan and exclusive to that political view.  Commons-based peer
production methodologies, FLOSS and the GPL happen to be compatible with
many political views which are incompatible with each other.

 Russell McOrmond, Internet Consultant: <> 
 Ottawa residents go to the polls on Monday, November 10, 2003
 Democracy is not for spectators - it is your right and duty as citizens
 to participate!


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