On FOSS, IP Laws, and Expanding Legal Choices

by Pamela Jones

September 26 2004

I think you might like to read this [ http://www.linuxinsider.com/story/Political-Agnosticism-Open-Source-Politics-of-Contrast-36906.html ], on a lazy Sunday. It's an anthropological look at free and open source software (FOSS). No kidding. So, get out your dictionary, because you might need it. At least, I did. It was originally published in the Anthropological Quarterly [ http://aq.gwu.edu/~gwaq/table.html ], and reprinted with permission by LinuxInsider.

The author, Gabriella Coleman, notes that FOSS has no politics. That is, it's not left, right, liberal, anarchist, communist, conservative, nothing. It's about freedom, as in free speech, software code being a form of speech, and it's about optimal science. Nevertheless, she writes, it is literally changing the legal world, by presenting an innovative, viable legal choice outside of the previous IP framework.

This is very perceptive of the author. You routinely see folks try to categorize FOSS as being of a certain political stripe. SCO's Open Letter to the community, for just one example, posited as true that the community is anti-property rights. That is completely false as a generalization. You saw the same thought in their letter to Congress and in public statements, implying that the FOSS community doesn't respect the law, are anti-capitalistic, and are illegal downloaders of music and software -- criminals, in short. That would be laughable if it were not so insulting.

Intellectuals sometimes write nonsense too, and it's not hard to find pontifications about Marxism and FOSS. Here's one recent high-falutin' example, Dan Hunter's paper, "Culture War" [ http://www.groklaw.net/pdf/culturewar.pdf ], where he tries to analogize the "culture war" to "elements of a Marxist class struggle," but of course fails, for reasons I will discuss later in this article, but briefly because he starts with a faulty premise. That usually results in a faulty conclusion, and it does here as well.

But the author of "Political Agnosticism Open Source, Politics of Contrast" gets it that FOSS has no politics and is about freedom, the freedom to communicate and the freedom to create state of the art software, through the advantage openness provides:

"Political intent and subjectivity are indeed noticeably absent in the constitution of the free software and open source movement, which differs from more formal political endeavors and new social movements predicated on some political intentionality, direction, or reflexivity or a desire to transform wider social conditions."

Whereas the danger to free speech used to be from the government, nowadays, the article points out, it's corporations that pose the threat, through their recent aggressive push for and subsequent interpretation of expanding intellectual property laws benefiting only themselves.

I might add parenthetically that these laws in no way reflect the world's shift away from corporate creativity to individual creative work, by which I mean such things as Groklaw, for just one such example of such creativity. There isn't a corporation in the world that, had I approached them with this idea, would have agreed to support it. That isn't because there is no way to do this for money. I could have set it up that way, or more accurately, I could now that I've done it. I choose not to, so as to maintain complete editorial independence. But even if the innovative idea of Groklaw had appealed to some corporation somewhere, for sure they would never have allowed me to be the one to implement the idea, because I was absolutely nobody, starting from zero. And they surely would never have let it be published under the Creative Commons license I chose. Current IP laws don't in any way reflect my needs as a creator, which is exactly why Creative Commons licenses were invented. But on a broader scale, current IP laws don't protect the individual creators of free and open source software. And that really matters.

Corporate views on IP law might be described, I think, as similar to a 2-year-old's concept of who gets to play with all the toys in the playground, regardless of who brought them. This results in a conflict between free speech rights of the majority and laws that restrict it in the name of the corporate property rights of a few:

"The indiscriminate application of patents to software algorithms and other encryption and copyright laws, such as the Digital Millennium Copyright Act (DMCA), are construed as threats to the free ability of programmers to write source code, which hackers and programmers have only recently come to conceptualize as a form of communication worthy of the broadest protections afforded by First Amendment law."

As a result of recent changes to IP laws to broaden their reach and give them increasingly broad enforcement capabilities, there is the culture war Mr. Hunter wrote his paper about, because not everyone views these changes in IP law as a force for good:

"It wasn't long ago that intellectual property law was seen as a wholly positive force in society. In those simpler times, intellectual property was thought to guarantee social progress, promote innovation, and (no doubt one day) cure baldness. But within the blink of an eye the golden period faded, and intellectual property became a mares' nest.

"In copyright, scholars and civil society groups lead a series of attacks on copyright term extensions, and on the diminution of the public domain. Within patent we witnessed increasing concerns about the extension of patent scope, and the grant of wildly overbroad patents: recently a number of civil society groups announced plans to challenge the grant of those patents which these see as the worst offenders.

"Internationally, criticism was leveled at the role of Western intellectual property policy on developing nations, in areas like plant and seed protection, drug pricing in Africa, and the development of indigenous high-technology industries. And in related areas like telecommunication spectrum allocation, and internet regulation there emerged movements seeking to protect commons property from private encroachment.

"At the same time, intellectual property owners decried rampant piracy, and daily foretold the death of their industries. Where once intellectual property was seen as good for all, we now survey a battlefield that pits private interests against the public good."

The last bit of that quotation highlights what is flawed in Mr. Hunter's theory, in my view, namely that he views FOSS as copyright "have-nots" fighting against copyright owners, and he tries to put it into an anti-property perspective. What he fails to notice is that the GPL and other such licenses are chosen for use by copyright *owners*. It's not copyright "haves" versus copyright "have nots". It's copyright "haves" with a different view of what is appropriate to do with their copyrighted property. That makes it impossible to view in a Marxist context. Some copyright owners, particularly in the software field, see the value of sharing ideas and others don't have enough confidence in their ability to keep coming up with any that they wish to erect a fence around their stagnant creations with a Keep Out sign.

All right. That is one choice, and there may be a place for it. What you might choose to do about your software might not be the same thing you'd choose for a novel you write. Or it might. But there is a valid argument to be made either way. But when one choice wishes to destroy the other, then we have a problem. And there is now a choice, thanks to the GPL, which began the discussion. And this choice says, if we all share our knowledge, we can all benefit from the common pool of knowledge, and that way none of us has to keep recreating the wheel and we'll all benefit from the rapid innovation and progress. Doctors do that. Scientists do that. Software seems to be ideally suited to this latter choice. IP extremists would no doubt patent the wheel if they could, of course, but this isn't about extremist choices on either end. And by the way, those wishing to limit copyright's reach include even judges. Here is Judge Richard Posner's view [ http://www.lessig.org/blog/archives/002119.shtml ] on fair use, copyright abuse, and a solution he proposes, "to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright". You might like to read his ruling in the WIREdata case [ http://groklaw.net/pdf/op3.pdf ], where he discusses copyright misuse. It begins like this:

"POSNER, Circuit Judge. This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program—a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed."

Yes, there are judges who understand the real issue, which is, should we allow corporations to strip mine the public's commons for private benefit? Is anything more important than corporations making money? That's really the bottom-line question. Some judges don't get that yet, but they still see that the DMCA is being used for things it shouldn't be, as you can see in the recent Skylink/Chamberlain [ http://patentlaw.typepad.com/patent/2004/08/federal_circuit_12.html ] decision.

Strip miners argue they should be allowed to ruin a mountain, grab what they perceive as valuable in it and leave behind its useless, denuded corpse and in the process destroy what everyone else perceives as valuable -- its beauty, the ecosystem it supports, the trees, birds, honeybees, flowers, grass for lovers' picnics, all the things that make life worth living outside of a commercial context. They wish to destroy that which both literature and the scriptures [ http://www.biblekeeper.com/bible-in-english/habakkuk_3.html ] call "the eternal mountains", and everything on them, for the sake of making a quick buck. Others, most of society, in fact, see that as a price too high for the majority to permit.

It is the same with IP law, which, thanks to recent changes, is being used more and more to strip mine the culture, erecting fences, and disenfranchising the majority of the world from being able to participate and enjoy it, not as consumers only, but, worse, as creators. Patents block creation, which is why the EFF is currently submitting a friend of the court brief [ http://www.theregister.co.uk/2004/09/21/patents_brief_ambiguous/ ] in the Phillips v. AWH Corporation case:

"'Aggressive patent holders are using vague patent language to cause havoc in the software and Internet fields,' said EFF legal eagle Jason Schultz. 'We're asking the court to rein in these claims by limiting their scope to only those things clearly laid out in the patent itself.'. . .

"The EFF says that at the moment, US courts are interpreting vague terms in patents as broadly as possible, and will uphold a patent unless it is deemed too ambiguous. This means 'improper patents of uncertain scope' are protected, giving plenty of work to legal departments, but stifling innovation and competition, it says.

"Joshua Sarnoff, counsel of record on the brief, and assistant director at the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, said that this could be the most important patent case ever decided. He commented: 'Claim meaning is the name of the game in patent law, and the Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society.'"

As you can see, the EFF isn't in this case asking for a ban on all software patents. Copyright merely limits and restricts a work for a time, but nowadays that time is longer than a generation can live, so it's effectively the same as taking the culture, putting it inside a fort, with a moat around it and a drawbridge that might or might not open to you, even if you are willing to pay. For example, when Internet Archive's Brewster Kahle approached publishers, requesting that he be allowed to digitize books that are out of print and thus making no money for the print publishers, they refused permission. Wired reports [ http://www.wired.com/news/culture/0,1284,64494,00.html?tw=wn_tophead_1 ] what happened next:

"Brewster Kahle, founder of the Internet Archive and Rick Prelinger, a film collector, want permission to digitize these so-called orphan works to create online libraries for free public access.

"In a suit filed in March, the plaintiffs in Kahle v. Ashcroft argue that multiple changes to copyright law have essentially made it impossible for works to return to the public domain. They want to have these changes declared unconstitutional. . . .

"'We want some system in place to filter out works that have no reason for continuing copyright protection from works that do,' said Lawrence Lessig, a professor at Stanford Law School who also represents Kahle and Prelinger.

"The government recently filed a motion to dismiss the case. The plaintiffs filed an opposition to that motion, and the government will file its reply in October. Judge Maxine Chesney of the U.S. District Court, Northern District of California will hear arguments on the case on Oct. 29. . . .

"'Because of the indiscriminate nature of copyright today, the burden of copyright regulation extends to work whether or not the original author has any need for continuing protection,' the lawsuit reads. 'That unnecessary burden blocks the cultivation of our culture and the spread of knowledge.' . . .

"'I think they've come up with a creative approach to try and re-litigate these issues,' said Allan Adler, vice president for legal and government affairs for the Association of American Publishers."

Again, the lawsuit isn't asking for the end of copyright law, just a balance to make it suitable to reality in a digital age and to take into consideration the original purpose of copyright law, to benefit the public. Specifically, it is asking for a return to a system whereby copyright owners would have to register their copyrights. In fact, the lawsuit is asserting that recent changes to copyright law have made it unconstitutional. Here's a bit from Stanford University's Cyberlaw Clinic's FAQ [ http://cyberlaw.stanford.edu/about/cases/kahle_v_ashcroft.shtml ] on the case:

"Kahle v. Ashcroft FAQ

1. What’s this case about?

It is about freeing our culture from unnecessary and harmful regulation. It is about a series of recent changes to copyright law that have failed to benefit copyright owners, but have instead created serious burdens on those who create culture in the digital environment.

"Plaintiffs in this case — the Internet Archive and its Chairman, Brewster Kahle, and the Prelinger Film Archive (formally, Prelinger Associates, Inc.) and its President, Richard Prelinger — are filing suit seeking a declaratory judgment that the current system of unconditional copyright is unconstitutional. . . . Plaintiffs contend, among other things, that unconditional copyright creates unreasonable burdens on speech in violation of the First Amendment, and creates effectively perpetual copyright terms in violation of the Progress Clause (the provision in the Constitution that grants Congress power to legislate with respect to copyrights and patents)."

The case isn't talking about Mickey Mouse; it is talking about works that are neither viable commercially nor in the public domain, what they call "orphan works":

"These are works that are not commercially viable and therefore not widely available to the public, but are nevertheless subject to continuing copyright protection. The Internet Archive wants to include many of these books, which we refer to as 'orphan works,' in the Million Book Project, but current law makes that very difficult.

"9. How does current law create 'orphan works?'

"Works that have no continuing copyright value don’t attract the interest of commercial publishers. They nonetheless remain subject to copyright-related burdens (i.e., the necessity of clearing rights) that prevent organizations like the Internet Archive from archiving them, preserving them, or making them widely accessible for study and creative re-use. Under our traditional regime of conditional copyright, these works would have been filtered out of the copyright system — many of these works would never have been registered, or, if registered, never renewed. But under today’s unconditional system, there is no filtering mechanism to separate these works from commercially viable works that legitimately are the focus of copyright.

"So if the Internet Archive wants to include an orphan work in the Million Book Project, it must obtain permission from the work’s owner. But figuring out who the owner is, and how to contact him, is difficult and expensive (especially in the absence of a reliable registry). Thus far, the difficulty of identifying rights-holders and clearing copyright under current copyright laws has largely limited the Million Book Project to government documents, old texts, and books from India and China, where copyright laws are less burdensome."

Publishers may ask, why should I give away something that might in the future be worth something? It's a valid question. But how about this for an answer? Why couldn't the tax laws be written so that any publisher gets a tax benefit for any such donation? If you donate a patent to a university, for example, you get a tax write-off. This paper, "Mining Intellectual Property for Profit" [ http://www.cepmagazine.org/pdf/120339.pdf ], says that both Dow Chemical and DuPont saved $50 million in taxes and maintenance fees and $64 million respectively by such patent donations. It's just a matter of the government deciding that there is a benefit to the public from supporting copyright donations to the public domain.

The DMCA as currently set up is also an issue, blocking as it does with its broad stroke legitimate research and study. By setting such broad restrictions and supporting aggressive applications of the law, the feeling by many is that narrow corporate interests are systematically strip-mining the public commons for the sake of a short-term buck. Actually, it's not even short-term any more, now that I think about it. Some perceive [ http://www.businessweek.com/magazine/content/02_19/b3782610.htm ] that as a price too high to pay. Others, like Microsoft, would probably like [ http://www.interesting-people.org/archives/interesting-people/200409/msg00170.html ] to have a monopoly on strip mining, with DRM as the primary enabling vehicle, as best as I can make out.

It is the political agnosticism of FOSS, Ms. Coleman notes, which "has facilitated an unfettered circulation of its technologies" with the result that, thanks to the licenses that govern the software, which have now spread in spirit to other fields of endeavor, there is now an alternative to the traditional view of what is legally proper or right. As an anthropoligist, that naturally interests her as a cultural phenomenon.

What is so clever about the GPL and other Open Source licenses is this: we don't have to overthrow copyright law to be able to establish an alternative. For example, my work is copyrighted as soon as I write it down, but then it is released, by my affirmative choice, under the Creative Commons license 2.0, attribution/noncommercial. By doing that, I expand your rights by voluntarily diminishing mine. I do that because I want the articles to be spread far and wide and quoted from, built upon and expressed by anyone, while still restricting rip-off artists from publishing a "Collected Works of PJ" and keeping all the money themselves, despite me doing all the work, and it is work, even if it's done noncommercially.

Mr. Hunter has the following description of his license, also one of the Creative Commons licenses:

"This document is released under the Creative Commons Attribution License, http://creativecommons.org/licenses/by/1.0/. This means you may do anything you like with this document -- wallpaper your house with it, perform it as a musical, create an audiobook from it, rewrite it using only 21 letters of the alphabet, translate it into Zulu, etc etc -- as long as you appropriately attribute it to its author."

It's a cute description, but the "rewrite with only 21 letters" phrase highlights that creativity is yours to express freely. Be as creative as you like. Does a culture not benefit from such creative freedom? Not just culture, but Disney surely benefited from being able to make movies out of classic tales, like Cinderella.

And it's worth mentioning that Mr. Hunter's license is what makes it possible for me to offer the "Culture War" paper to you. Without that license, I could only use fair use snips, and who knows what that means? You are always on uncharted seas there. So, without his permission releasing the stranglehold that copyright puts on it, I'd have to write to him and ask permission and cross his palm with silver if he demanded it. I would do that, naturally, if I had to, but in practical terms, in most cases I just wouldn't use it instead.

Why? Because sometimes it takes too long. For example, I wanted to show you a hilarious picture the RAND Corporation made in 1954, showing their vision then of what a home computer would look like in 2004. It'd be perfect for a good laugh on a quiet Sunday, but although I wrote to the rights coordinator last week, I haven't heard back, and that isn't unusual. When there is a hassle like that, what ends up happening, due to deadlines, is that the work doesn't get used at all. Now I ask you, is that good for the culture?

Judges don't consider practicalities like that in their decisions sometimes. A recent decision about music sampling [ http://www.journalnow.com/servlet/Satellite?pagename=WSJ%2FMGArticle%2FWSJ_RelishArticle&c=MGArticle&cid=1031778085028&path=!entertainment!music&s=1037645508978 ], for example, showed that the judge has never tried to get permissions, because he thinks it's a lark. It's not, and some are predicting the result of this decision will be either the death of one form of music, hiphop, or its descent into mediocrity by stifling the artistry and creativity IP law is supposed to protect by making it too expensive for individual creators to practice their art. I'll be providing you with more information on this case later, but it's another example of IP law not protecting the rights of individual, as opposed to corporate, creators. The music industry did not invent hiphop. Sometimes, you don't even know where to find a copyright holder, which is one of the issues being raised in the Kahle lawsuit.

Ms. Coleman calls the GPL a neat legal hack. I agree. But I stress the word "legal", because it leaves the underlying copyright law intact and unchanged.

Patents, of course, take us into deeper waters. There is no hack outside of the GPL's no-patents clause, and even that doesn't solve the real problem. And what is the real problem? That patents shut down creativity, innovation and free speech, and in software, with its rapid development, it's the same as destroying innovation.

As Richard Stallman points out [ http://www.newsforge.com/article.pl?sid=04/09/09/1612239 ], software patents block your way no matter how hard you try to be "good":

"Software patents are the software project equivalent of land mines: Each design decision carries a risk of stepping on a patent, which can destroy your project.

"Developing a large and complex program means combining many ideas, often hundreds or thousands of them. In a country that allows software patents, chances are that some substantial fraction of the ideas in your program will be patented already by various companies. Perhaps hundreds of patents will cover parts of your program. A study in 2004 found almost 300 U.S. patents that covered various parts of a single important program. It is so much work to do such a study that only one has been done. . . .

"However, fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria. You cannot expect to defeat every patent that comes at you, any more than you can expect to kill every monster in a video game: sooner or later, one is going to defeat you and damage your program. The U.S. patent office issues around 100,000 software patents each year; our best efforts could never clear these mines as fast as they plant more. Some of these mines are impossible to clear. Every software patent is harmful, and every software patent unjustly restricts how you use your computer, but not every software patent is legally invalid according to the patent system's criteria."

If you'd like to hear that thought from someone else, more business-oriented, here [PDF] you go, the PriceWaterhouseCoopers study saying software patents are a threat to the European information and communication technology industry:

"Scientific research in the USA demonstrates that computers are often the catalyst for bigger changes. Information and communication technology (ICT) is not only the technological basis for a fast growing industry sector but also an indispensable enabler and driver for an inclusive, dynamic and knowledge based economy and a modern social society.productivity growth. . . .

"342 There are particular threats to the European ICT industry such as the current discussion on the patent on software. The mild regime of IP protection in the past has led to a very innovative and competitive software industry with low entry barriers. A software patent, which serves to protect inventions of a non-technical nature, could kill the high innovation rate. However, opinions on software patent in its current proposed form vary a lot. Many large companies operating on a global scale, including European ones, seem to be in favour of a software patenting regime. But most small enterprises are strongly opposed. Only very few European companies have prepared themselves for the consequences of a software patent regime."

And to wake you up this morning and illustrate the broad spectrum of those seeing that the IP landgrab is going too far, take a look at this [ http://news.com.com/Conservative+group+savages+anti-P2P+bill/2100-1028_3-5381593.html ]. America's oldest conservative group, The American Conservative Union (ACU) is taking out ads opposing the INDUCE Act, claiming it will "crush innovation". You can view the ads by clicking on the link on that page, which takes you to this PDF, where you will find this text:

"Hollywood is once again trying to crush innovation to maintain its entertainment distribution monopoly. And this time they’ve enlisted Republican lawmakers to help them do it. Their latest production, called S. 2560 (the “Induce Act”), could outlaw a wide range of hardware and software, including peer-to-peer. S. 2560 not only attacks consumers’ right to use technologies, it attempts to make the intellectual property rights of Hollywood fat cats more important than the personal property rights of Americans.

"S. 2560 will be a boon for Hollywood’s trial lawyer friends. It creates a new category of lawsuits designed to harass companies developing technologies and equipment that Hollywood deems unsuitable. Technologies that keep America competitive and deliver more diversity, efficiency and choice to consumers in a way unequaled by Hollywood’s entertainment distribution monopoly. Compromising property rights and encouraging predatory, costly litigation is not a conservative position."

I am mentioning all this with a caveat. Groklaw is neutral as to politics, and this isn't an invitation to discuss which political group is right or wrong. That's all off topic on Groklaw. This material is illustrative of a higher level of abstraction, not an invitation to political debate.

Benjamin Franklin was an inventor. But he refused to patent his inventions, and here's why:

"As we enjoy great advantages from inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously."
-- Benjamin Franklin"

Was Benjamin Franklin unAmerican? A hippie dreamer? A communist? You may say that was then and this is now, that it's a new world. Yes. But is it better? Because of his stand on patents, the Bioinformatics Organization names its annual humanitarian award The Benjamin Franklin Award in Bioinformatics [ http://bioinformatics.org/franklin/ ]. Here is what this organization does [ http://bioinformatics.org/about/ ]:

"The Bioinformatics Organization, Inc. (Bioinformatics.Org) was founded to facilitate world-wide communications and collaborations between practicing and neophyte bioinformatic scientists and technicians. The Organization provides these individuals, as well as the public at large, free and open access to methods and materials for and from scientific research, software development, and education. We advocate and promote freedom and openness in the field as well as provide a forum for activities which facilitate the development of such resources."

You see, freely and openly sharing ideas is the embodiment of what this organization calls "the best traits of a scientist". When IP laws make it impossible for science to progress, just so the entertainment moguls and one small segment of the proprietary software industry can make money, has it not gone too far? Stop and think: Linux was not started by a corporation. It was developed by individuals, and now it is literally changing the world. That, of course, is why Microsoft wishes it could kill it off. But is that in the best interests of the world? Without a doubt, that is the issue. Should not the IP laws protect and enable such individual creativity?

This isn't a discussion about downloading music illegally, as much as SCO wanted to describe it in those pejorative terms. It's about progress, about innovation. If any country decides to limit its own progress in science -- and software is science -- just so the few SCO's and Microsofts of this world can make a little more money before they die off, then it had best hobble the entire globe, or it will inevitably be left behind in the dust, out-innovated into insignificance.

And if they think that won't affect the gross national product, not to mention safety and security, they aren't thinking deeply enough.

06:00 AM EDT

Copyright 2004 http://www.groklaw.net - http://creativecommons.org/licenses/by-nc-nd/3.0/