Tim O'Reilly Responds to "Freedom or Power?"
Subject:   Copyrights are not really rights
Date:   2001-08-16 14:01:27
From:   okay
In his article, Tim O'Reilly states ...

First off, if you accept his definition of freedom as "being able to make decisions that affect mainly you" versus power as "being able to make decisions that affect others more than you", then clearly the GPL is just as much about "power" as any Microsoft license, since it is binding on all who use the software, and has the explicit goal of "world domination."

... but this already inherently makes the assumption that copyrights (on software, at least) are basic rights. If you believe that, then the GPL is just another license where a creator is exercising a right that is basically his, but if you don't, like many of us, then the GPL is merely a defensive mechanism to deal with the problems caused by copyrights to begin with.

So the question is, are copyrights really a basic right, the following point suggests that they are....

I want to return to the idea of freedom zero as my choice as a creator to give, or not to give, the fruits of my work to you, as a "user" of that work, and for you, as a user, to accept or reject the terms I place on that gift. If that is power, so be it. Both Richard Stallman and Bill Gates exercise the very same power every time they release a piece of software. But the burden of power is to use it wisely and well

...however, this misses the real point. Nobody has denied that a creator has a right to give or not to give. And nobody has even denied that he can give what he wishes on his terms, but this is not what happens. When an author gives something today, everybody is automatically bound to his terms whether they accept them or not. Even when the cat's out of the bag - they are bound, even if they receive it 2nd hand or 3rd party, or in alternate form - they are bound.

Can I send you a letter with $100 in it and a note that binds you to pay me back $200 tomorrow? Of course not, and it should not be done with software either. Perhaps a copyright may have been more convenient way for creators to enter into bindings in years past, but the cost to make this happen today will require severe micro-regulation in every aspect of the information age. Our society simply can not afford it anymore, or accept it. It is not a matter if they should find a better way, they half to because they are imposing an inherently flawed collection structure on us - not the other way around. Many people, like programmers (and soon to become everyone), can simply not accept the burden of this method any more.

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  • Copyrights are not really rights
    2001-08-20 17:08:21  guyberliner [View]

    You're precisely right, and this explains
    precisely why Tim O'Reilly abuses language
    to refer to a "freedom of an author to
    decide his licensing terms." In fact, such
    a freedom is impossible. Ever heard of "void
    where prohibited by law"? Licenses are contracts
    meant to enforce certain exclusive rights as
    secured by copyright & patent laws. Such rights
    exist ONLY where secured by these laws.

    For what purpose do such laws exist? The US
    Constitution makes it very clear, "for the
    advancement of the useful arts and sciences,"
    "Congress shall have the power to secure for
    authors exlusive rights to their works FOR A
    LIMITED TIME." There are many differences
    between ordinary property rights and the
    misnamed "intellectual property rights."

    First and foremost, the latter do not preexist.
    They exist only at the pleasure of the legislature
    and elected officials. Clearly, they exist only
    to benefit the public, not the small minority
    of people who actually directly earn royalties
    as a result of them. Why on earth would the
    majority of people direct their representatives
    to pass laws guaranteeing big profits to a small minority at THEIR expense, simply because of some fictive "right" that a small, self-interested minority might want to demand?

    The idea is that, by enjoying these monopoly
    rights, talented authors will be encouraged to
    devote more time to their work, and to make it
    widely available to the public. This serves
    "the advancement of the useful arts and sciences,"
    and therefore the interests of the general public
    (in theory, at any rate, and only so long as
    corrupt influence peddling and monstrosities like
    the DMCA don't overtake us, as they already have.)

    Unlike ordinary property rights, no one anticipates that any more than a small minority of people could ever in practice exercise such "intellectual" rights. Many people do commendable intellectual work in the course of carrying out many worthy trades -- carpenters, plumbers, etc. But they do not enjoy the privilege of "intellectual property rights."
    This is why the Framers of our Constitution gave Congress the power to recognize such rights. But they did not mandate it. And they clearly described the purpose such "rights." And that purpose has nothing to do with those who exercise them themselves.
    • Copyrights are not really rights
      2001-08-20 17:41:25  guyberliner [View]

      Clarification: The word "right" has at least two meanings that are quite distinct: one is narrow and limited, prescribed, for example, by a contract, or set forth in a law applying for a limited time to certain named parties. An entirely different kind of right is a "natural right," such as the rights set forth in the US Bill of Rights, or the UN's Universal Declaration.

      "Copyrights" are obviously of the former sort. Unfortunately, the ideological hacks who invented the term "intellectual property rights" have done us all the inestimable harm of muddying the waters by confounding a natural right, the right to be safe in one's personal property and effects, with limited, contingent ones: exclusive monopoly rights, AKA "intellectual."