Re: [ox-en] GPL Restrictive (and all the rest of those threads that this grew out of)
- From: Martin Hardie <auskadi tvcabo.co.mz>
- Date: Mon, 17 Nov 2003 18:57:38 +0200
There has been lots said by Russell and CC that I need to respond to.
I wasn't going to say any more on this but given some of the questions/points
from them I better.
But tomorrow. I am just too tired today. But i thought I should pass this on.
It is from one of the "cybereconomists" a professor of law at UC Berkely. I
need not state but may have to because of my recent forays that these are not
The End of Friction? Property Rights and Contract in the "Newtonian" World of
ROBERT P. MERGES†
" .... D. Digression on Informal Restrictions in Cyberspace
Thus far, we have discussed property and contract. Property, I have argued, is
distinctive because it allows enforcement against third parties not in
privity with the rightholder. Creators can then use contracts to craft
individualized restrictions on use in bilateral relations built on property
rights. In this section, I briefly consider a third regime: informal (i.e.,
not legally enforceable) restrictions on digital content. This is currently,
and will likely continue to be, an important source of norm-based rights in
the on-line world.
Property is a recent introduction into cyberspace. In the beginning, and still
in many communities, the prevailing norm was free exchange.44 This freedom of
exchange is a manifestation of the prevailing norm from the early days of
software.45 One prominent organization, the Free Software Foundation,
promotes this norm today through the institution of "copyleft," a copyright
license that requires transferees of free software to promise not to
incorporate it in a commercial product and to pass it on, even if embedded in
a larger program, to others free of use restrictions.46
By its own terms, the copyleft agreement is an unusual license; at the most
basic level consider the problem of determining damages when the licensee
frustrates the licensor's expectation of zero profits under the contract. But
what is most significant about the agreement is that it purports to restrict
subsequent transferees who receive software from a licensee, presumably even
if the licensee fails to attach a copy of the agreement. As this new
transferee is not in privity with the original copyleft licensor, the
stipulation seems unenforceable.
Even so, copyleft no doubt carries some moral force in the on-line community.
It therefore serves as an example of a non-binding, informal norm in
cyberspace. The copyleft license in this community is the equivalent of a
statement of good practices. Surely some programmers dutifully pass along the
license and police cases where subsequent transferees receive code without
such a license. In short, the notice is aimed at the perpetuation and
enforcement of a norm that holds some force in this community, and it is
therefore worth mentioning in a catalogue of rights in digital content.47
E. Summary: A Three-Tiered Regime.
In summary, a three-tiered information-protection regime exists in cyberspace
comprised of property rights, contracts (many, but by no means all, involving
property rights), and informal restrictions. The following chart (Table 1)
briefly lists major costs and benefits for each.
This footnote is interstoign and may help explauin a little what I am trying
to explore when I talk about rhetoric and logic of the different communities:
" 45. Indeed, the ongoing debate over software patents-pitting purist
programmers against bottom-line-oriented business types-has many earmarks of
a clash of cultures."