January 12, 2002

Community commentary: The case for 'lagom' copyright

Author: JT Smith

- By Mikael Pawlo -

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 (see related links at the bottom of the story) and seemed convinced that Stallman and his Free Software Foundation colleague Bradley Kuhn were 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 toward 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 and
copyright law. As Stallman's legal counsel professor Eben Moglen has told
us on several occasions, the GNU GPL still has not been successfully
challenged.

Copyright law is often questioned. In an article in Wired 1994, John Perry
Barlow of the Electronic Frontier Foundation 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. Others 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 incrementally. 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 a James Bond book without the original
author being present in your project. This 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 lose about 100 years of protection,
the current copyright protection of life of author plus 70 year,s compared to five plus five years and then full disclosure.

In article published in Stanford Technology Law Review, Mathias Strasser
argues that any move toward 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 have 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 either Strasser or
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 it's 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
U.S. 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 Strasser and 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.

Related links:

The Economy of Ideas by John Perry Barlow:
http://www.wired.com/wired/archive/2.03/economy.ideas.html

Lawrence Lessig homepage: http://www.lessig.org/

The GNU homepage:
http://www.gnu.org/

Mathias Strasser's article:
http://stlr.stanford.edu/STLR/Articles/01_STLR_4/index.htm

Tim O'Reilley's My Definition of Freedom Zero:
http://www.oreillynet.com/cs/weblog/view/wlg/526

Richard M. Stallman and Bradley M. Kuhn's Freedom or Power:
http://linux.oreillynet.com/pub/a/linux/2001/08/15/free_software.html

Eric S Raymond's Freedom, Power, or Confusion:
http://linuxtoday.com/news_story.php3?ltsn=2001-08-17-016-20-OP-CY

Mikael Pawlo is an associate of the Swedish law firm Advokatfirman Lindahl.
On nights and weekends he works as an editor for the leading Swedish Open
Source and Free Software publication Gnuheter, which he co-founded with
Patrik Wallstrom.

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