February 20, 2001

Declaration of Software Freedom: Is software law or literature?

Author: JT Smith

- By Tony Stanco -


The following are the reasons that FreeDevelopers.Net based the
Declaration of Software Freedom on the Declaration of Independence.
The moral question between free and proprietary software ultimately
revolves around the issue, "Is code more like law (and ought to be public
and free) or more like literature (and therefore can be private

We must ask developers, who are renowned for their independent
thinking, to suspend disbelief and skepticism until the end, for new ways of
seeing the world at first seem strange and thus inherently wrong. But
people from the earliest times have turned to things they know well to
better understand things that are new. And the proper place for software
development in the world is a new question.

Since everyone intuitively knows what law and literature are, let's
look to them in a thought experiment to better understand the attributes
of software, and specifically to resolve the question whether the
software development paradigm ought to follow a free or proprietary model.

Law v. literature

What's the difference between law and literature? Both are just words
on paper. And both are created by men and women from their native,
intellectual powers. So why then does society treat them so utterly
different? Why is literature allowed to be private property, subject to the
capricious whims of a creator who can do whatever he wants with it, while
personal ownership of law is forbidden? In fact, in free and democratic
countries the creation of law has been studiously circumscribed, and is
subject to great control, huge regulatory mechanisms and public

While we in free and democratic societies have been thrust into a world
with these verities presented as gifts, who among us has stopped for a
moment of reflection to wonder why this is or how it came about? Has it
always been that law and literature were treated so differently?

Remembering back to high school history we can all recollect learning
of times when law was just the dictates of all-powerful kings. When law
was really just whatever the king wanted it to be at the moment without
restriction. Back then, writing good laws made them good kings and bad
laws made them bad kings. But either way, kings were the solitary
authors of law, creating real world effects for their subjects with their
mere utterances, just like literary authors today create fictional worlds
with their words. So, at the time, law was just the private property of
kings. Or to put it another way, law was the king's literature.

So in fact even not too long ago, the world was confused about the
differences of law and literature. Some places today still live under the
confusion. But for the most part, the world through bloody trial and
error has discovered that law and literature are somehow very different.
With countless political wars fought over who would get to write the
words to be placed in law books, the world came to slowly realize that law
creation ought to rest in the governed through some democratic means,
and not be the private preserve of a particular person. This is surely
clear to all thinking people in the 21st century and needs no
elaboration here.

What is the essential difference?

Over centuries, therefore, the world has established that there is a
difference between law and literature, and that the two ought not to be
confused. But has the world ever rationalized the essential differences
in them to explain the difference in treatment more specifically?
Because to apply effects to different circumstances as we are trying to do
here with software, one must understand the causes too, not just the
outcomes. So what really is it in law that makes it different from
literature? Again, both are merely words from people's intellect, so exactly
what is the essential difference?

For one thing, people don't have to read an ordinary book. Experiencing
literature is totally voluntary, whereas law is compulsory. Does that
explain all of the essential differences? It certainly appears to go a
very long way, but that is not the whole story. Law is not only
compulsory; it is coercive, also. Law, unlike literature, does not only tell
you what you need to know, it tells you what you have to do, too. And if
you don't do it, it sends the police to knock on your door at night to
politely, or not so politely, make sure you do it. And this is
ultimately the essential difference between law and literature.

Therefore, in the final analysis, law is essentially not like
literature, because it controls people.

So to briefly recap, over the centuries, starting with rational
predispositions of equality, autonomy and freedom, the world has deduced in
bloody and deadly cycles of reductio ad absurdum that if law is to
control people, the only legitimate creation of that law is a social contract
among the people as written in a democratic process by the governed

Which is software more like?

So the basic question at the beginning of the 21st century between
proprietary and free software comes down to the question whether software
is more like law (and ought to be public and free), or more like
literature (and can be private property). Under the analysis above, the
crucial question is, "Does software control people?"

Well, the answer is both yes and no.

Up until very recently, before computers were interconnected by the
Internet, they were isolated tools, not instruments of control. So, no,
historically computers do not control people.

But with the creation of cyberspace in recent years, where more and
more interaction between people is through computers, these machines are
fast becoming a nonhuman, digital police force, telling people not only
what they need to know, but coercing them on how to do it, too. Without
complying with their specific rules for participating in cyberspace,
people cannot properly function there. In other words, digital machines
are beginning to control how people interact with other people and with
the physical world in real and definite ways. So, the answer is quickly
becoming yes.

However, whereas a human police force takes its marching orders from
what we call law, the new digital, nonhuman, police force takes its
orders from what we call software. But both are functional substitutes for
ways to control people. And as such, with the beginning of the Internet
Age, software has begun to supplement the traditional function of law.

As a functional equivalent to law, by analogy to thousands of years of
human history, software, therefore, should not be created at the whim
of a king (or his current day manifestation as CEO), nor should it be
owned as private property. Rather like law, it should be public property,
and open to general inspection and deliberation, so that the governed
can participate in the formation of the social contract by which they
will be governed. As a result, software should be developed under a free
model, rather than the current proprietary paradigm that we have had up
until now.

In conclusion, as Richard Stallman has said for 16 years, free software
is really about Freedom. As such, free software is this generation's
moral duty, just as much as the establishment of democracy was the moral
duty of our ancestors for which we, the later generations, have been
the beneficiaries. It is this congruence between their revolution and
ours that justified, in our view, the use of the Declaration of
Independence as the model of the Declaration of Software Freedom.

For those who, inspired by these ideals, want to join FreeDevelopers,
please sign the Declaration at www.FreeDevelopers.Net/freedomdec.

For those who need appeals to their personal pecuniary interest and an
answer to the question, "How does this profit me?" please wait until we
unveil the proposed new commercial structure for the development of
software. It will be disclosed in the coming weeks.

(Ed: Tony Stanco is founder of FreeDevelopers.Net.)

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