August 2, 2009

Stopping the train of IP: some lessons in the politics of copyleft

Category: Academic,Fair Use,Hackers,IP Law,Politics — Biella @ 12:31 pm

I had my first bona fide twitter/facebook/identica argument. I stopped it pretty quickly as it is already pretty annoying to receive a parade of tweets; it is more annoying when it is a shouting match.

The content of the argument, however, was interesting. I had posted a short excerpt from RMS musings about how the Pirate Party position backfires on free software

I posted an abbreviated version of the following:

“I could support a law that would make GPL-covered software’s source code available in the public domain after 5 years, provided it has the same effect on proprietary software’s source code. After all, copyleft is a means to an end (users’ freedom), not an end in itself. And I’d rather not be an advocate for a stronger copyright.”

Jeremy was kind enough to take the argument off the 140 character twitterverse and post a thoughtful response. His stance is that copyleft and CC are actually part of the problem—representing some wimpy band-aid that does nothing to solve the problem of copyright and perhaps make it worse because it sanctions copyright as appropriate. In his own words:

However, because people can license things under copyright and ‘give them away’ or enter into other terms of contract. There is no felt necessity for resolving the real problem of copyright.

I respectfully but totally disagree. It is not that I inherently value the legal counter-power that copyleft licenses represents. It is just when viewed in historical context, copyleft was and is still no band-aid . A better metaphor is it was the tourniquet that saved the life of software, whose life was being slowly but surely suffocated by the mighty weight of IP law.

When RMS came up with his legal hack, there was literally a hundred year train (really older) barreling in one direction, going 1000 milers per hour whose sole purpose was to make property out of everything—software, seeds, modified bacteria, NBA scores–a trend that went nearly unabated through the 1980s and 1990s. One was not going to stop that mighty train and the 1000 pound gorilla (aka the trade associations) riding/driving the train. Indeed, Lessig made a valiant attempt at slowing down the train with Eldred and failed miserably (no fault of his)—so much so—that the court was not even split on the decision. It was overwhelmingly unwilling to stop the march on congress that allowed for greater and greater term extensions!

At the time Stallman took action, there was little to no room in the court of policy, in the court of law, and in the court of traditional politics to do much of anything to fix the problem. If he had waited ten years, I would not be publishing this entry on Word Press but some gawd awful proprietary system, probably run by AOL or something.

So Stallman fixed the problem as a hacker might: he understood the system so well, he used it to undermine it and take it down a different path.

Which gets me to my second point: when it comes to CC licenses, it is certainly the case that these might indeed affirm copyright as there is no clear standard of freedom. Further the language that Lessig likes to uphold as well as that of “choice,” which creeps close to a neoliberal ideology. This has been magnificently critiqued by lawyers, notably by Niva Elkin Koren in her piece Exploring Creative Commons: a Skeptical View of a Worthy Pursuit and Free Software advocate Mako Hill….

When it comes to the copyleft, I in fact don’t think it upholds copyright in any meaningful way. In fact, it signals the complete opposite. Now, I am going to dip into a little Derrida, which I hope does not deter some of the geeky readers. On the whole I can’t understand the guy but he has some great insights, when my brain can get it and I do my best to make him palpable.

One of his points is that naturalized proposition (like heterosexuality or until recently copyright) or social fact both presupposes and ultimately propagates what it excludes (also explored by Judy B as I like to call her and David Graeber).

It is just this structural quality of language and cultural concepts that Richard Stallman exploited when he established the first F/OSS license, the GPL. What is important to highlight is that while mainstream copyright discourse and related IP laws necessarily presuppose their opposition, they lack any meta-pragmatic indication of this presupposition. Most of copyright’s recent legal history represents a vehement disavowal, through economic incentive theory, of oppositional entailment of the copyright. The GPL more clearly speaks a meta-pragmatic commentary on its oppositional existence, an awareness even built into its informal name: copyleft, which explicitly indexes “copyright.” That is, it is created in direct opposition to copyright even if it makes use of it, which is why in the end, it does not serve the purpose, aim, or content of copyright.

In an essay on the law, “The Force of the Law: The Mystical Foundation of Authority” Derrida also makes the point that law is respected not because it is just, though it can be, but because it inherently carries with it a whole lot of authority, sanctioned by state power and all sorts of small and large acts (getting a ticket, getting thrown in jail) which keeps us all in our legal place. It also takes a whole lot of (effing draining, deflating) effort and gobs of money to challenge a law, which is one reason it carries this authority (his argument is far more sophisticated but I think you get the gist).

I would add that constitutional laws, like copyright, are doubly more authoritative as it they are buoyed by the foundation story/myth what have you of this country. That is, there is law, and there is Law, and Constitutional Law is of the latter kind.

And yet, RMS questioned or deflated the very authority of the law, which is precisely what was so transgressive and exciting about his actions. He took a a Constitutional mandate and redirected without the courts, without the judges, and for the most part without the lawyers (he, of course, used Eben Moglen’s help to draft the language).

Derrida, drawing on Walter Benjamin, notes how the figure of the criminal inspires and garners our attention, admiration, and awe, because he stands outside of the law and thus also reveals the violence of the law—or the ways in which we are all bound by the law whether we like it or not. Now, Stallman is no criminal. But in creating the copyleft, RMS did some violence to copyright, demonstrating its oppression (as applied) and another path, again without going through the usual legal paths.

This is not to say that his path or that of CC are the only ones or the best one’s for IP in the future. This is not to say that all is peachy in Copyleft-Landia. I take seriously Peter Jaszi’s critique that a legal counter power might rob the argumentative power for fair use.

I, for one, would like shorter copyright’s for all sorts of media and genres. I want the type of fair use where I can include this photo in my forthcoming article and not think twice about it. And I would looooooooooove a policy or legal or traditional grassroots movement that would kick some serious ass in Congress or the courts. And indeed, having a vibrant example to turn to in the form of CC/Copyelft, is perfect ammunition for whatever traditional political path may crop up. I don’t think that its existence automatically entails death of or for the politics of fair use or any other anti-copyright measures. One must be crafty about how to conjoin various streams and movements because in the end, a diverse political ecology is what we need instead of a political mono-culture.

This is also not to say policy and traditional politics are not powerful in their own right. It is just in the historical circumstance of the time, when the legal push to make property out of everything was unstoppable, RMS’ solution was/is far more than mere band-aid.


  1. +1 to what Biella wrote.

    I totally understand the “break the frame” impulse that makes some people suspicious of tricks like the GPL, that use one aspect of a law to weaken or undermine other aspects. But you can break a frame from the inside too.

    Until we have a law that enables us to enforce copyleft without depending on copyright, copyright is the only mechanism for enforcing something like copyleft. But copyleft’s overall effect is still ultimately to weaken copyright, and to cause people to question it — people pay much more attention to consequences than to mechanism anyway.

    RMS created a viable opposition to the dominant narrative of copyright, and did it in a way that copyright couldn’t simply ignore, because to ignore it would have been self-destructive for that dominant narrative. Even efforts like Creative Commons help with this (despite CC’s lack of a clear standard of freedom), by creating variety where there had formerly been monotony, as Biella says in her second-to-last paragraph.

    Comment by Karl Fogel — August 2, 2009 @ 1:01 pm

  2. But here’s one question I have for any FOSS advocate:

    I agree that if a copyrighted proprietary work goes into public domain (whenever it does, 2 years, 5 years, or 70+ years after the author’s death), then the source code should be in public domain as well, and given that copyright registration of programs, to some degree, already require submission of source code, this is easily accomplished.

    However, would proprietary software writers have the option of keeping their source code secret forever by not registering the software for copyright protection?

    I think this is an important question, as, without this choice of proprietary software writers to forgo both legal protection and legal compulsion, you can’t really talk about “freedom”—where is my freedom to publish something without having to reveal all my trade secret?

    (Of course, the proprietary software companies going this route will be expected to protect their software some other way through technical measures, and it should be legal to reverse engineer it.)

    Comment by Byung Kyu Park — August 2, 2009 @ 4:31 pm

  3. Hi Biella,

    I think you far too quickly dismiss the claim that copyleft may function to reinforce the ideas of copyright – particularly in the minds of policy-makers and politicians. Whilst generally I would agree with your synopsis I don’t think you can dismiss the fact that copyleft represents an attempt to mitigate the worst effects of copyright on the development of computer software. Indeed a historical investigation of copyleft reveals precisely that fact. However, you are right to highlight the fact that copyleft *also* functions as a form of social ordering that is tangential to its formal role in allowing a space for software sharing. I discuss this in relation to an overly legalistic understanding of copyleft in The Politics of the Libre Commons and also reflect on the problem of Stallman’s overly moral framework in understanding copyleft (which I think is also a problem of Mako Hill’s position).


    Comment by David Berry — August 3, 2009 @ 3:34 am

  4. Well, just let’s look in the past and choose the best for the future: Why not making only source code copyrightable? (after all object code is a product by a machine and usually only human created things are protectable).

    If you want to make it more fit for our current world, make object code only copyrightable when the source code is published (or if you prefer sent to the library of congress / whatever central library that country has).

    That would give everyone at once the advantage of effectevely using their right to inspect what the programs to on their machine (some countries have that as a right, in Germany for example, though it is only useable by people being able to disassemble code), and also make a discussion about copyright times for software more useful.

    Comment by Bernhard R. Link — August 3, 2009 @ 5:44 am

  5. Byung: That is the odd thing about IP: the conventions around trade secret, trademark, copyright, and patents are quite distinct. Back in the day when copyright was not yet used on software, tradesecret was the one means developers and companies could retain full control over their software. It is just the case that if the company did not protect the secret sufficiently, people could then have full access to it. I imagine trade secret is not going anywhere and can still be used.

    David: good points and indeed, as a Blog Rant, I was perhaps too rash! You also point out in an article and in your book about the dangers of the CC/open source flirtation with neoliberal ideology, which I could not agree with more.

    Bernhard: compelling suggestion. I would love to hear from developers as to why they would support or not, such a move.. That is, what are, in more detail, the pros and cons of doing so?

    Comment by Biella — August 3, 2009 @ 7:22 am

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