17 April 2009

Of RMS, Ethical Visions, and Copyright Law

As RMS emphasises again and again, at the heart of free software lies an ethical vision of sharing and mutual respect. Although open source blurs that vision somewhat thanks to the glasses of pragmatism that it wears, the basic idea is still there. And yet we talk relatively little about that ethical aspect, which is a pity, because it is both important and interesting.

Just how interesting can be seen in this splendid essay "Ethical Visions of Copyright Law" from James Grimmelmann, who is Associate Professor of Law, New York Law School. As its title makes clear, the focus is on copyright, but Stallman's approach to subverting copyright to make it more ethical occupies an important place in the argument. Here's part of the introduction:

copyright law imagines that we are ethical beings, capable of being creative and of being touched by the creativity of others, inclined to be sociable and to return good for good. It has in mind a deontic vision of reciprocity in the author-audience relationship. Or, more succinctly, authors and audiences ought to respect each other.

That may sound like a platitude, but it isn’t. Everyone agrees that authors and audiences ought to respect each other, but they come to blows over how that respect ought to be expressed. The Recording Industry Association of America (RIAA) thinks that audiences don’t respect authors enough; the Electronic Frontier Foundation (EFF) counters that it’s the authors who aren’t showing enough respect for audiences. Meanwhile, free software advocates and fans of the commons sketch pictures of respectful exchange that look very different from the marketplace exchanges that both the RIAA and EFF treat as normal.

We can learn some very interesting things about the state of the copyright debate by looking closely at those disagreements. When the EFF tells the content industries not to “sue their customers,” it’s making an ethical argument that’s the mirror image of the content industries’ call for people to “respect copyrights.” The arguments are the same, just directed at opposite sides of the author-audience relationship. Compare those arguments with the genuine radicalism in the way that some free software advocates don’t care whether programming remains a viable profession. They see legal restrictions on user freedoms as inherently unethical; no amount of software produced or programmers employed could justify them.

As scholars, we should pay attention to these ethical visions, because they are descriptively important to how people behave, because they affect the persuasiveness of our policy arguments in the public arena, and because they make provocative claims about what intellectual property law ought to look like. This essay will find evidence of these visions in the language and structure of intellectual property law, and in the rhetoric that activists use as they make arguments about intellectual property. These ethical visions link copyright law’s rules to a model of how those regulated by copyright law could and should behave.

As you might expect, the Creative Commons movement also figures largely, and the essay picks out an interesting fact about it:

To summarize, there’s a significant ambiguity in Creative Commons’ response to the copyright system. It could be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they don’t need and don’t want to use. It could also be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they shouldn’t have and shouldn’t be allowed to use. In either frame, its licensing strategy is a natural response designed to encourage a healthier balance. But the latter frame, let us be clear, is a challenge to the default ethical vision of copyright itself, not merely a critique of authorial behavior made from within that vision.

Great stuff - highly recommended.

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saulgoode said...

What a great essay by Mr Grimmelmann!

It would please me greatly should he choose to write a follow-up in the same vein covering the ethics of patent law. ;-)

glyn moody said...

Beautifully written, too.

Yes, one on patents would be interesting.

Anonymous said...

If you go to a backery and buy a cake, is it unethical if you don't get the recipe as well?
If you buy a radio, is it unethical if you don't get the construction plans for it?
If you buy some software, is it unethical if you don't get the source-code?
If you buy a processor, is it unethical if you don't get the "hardware description language"-description of the processor?

Richard Stallman sees it as an ethical issue. Maby he is ultimately right. I simply don't know.
He's right that sharing is a good thing.
But is it really an ethical issue whether or not you get some recipe, construction plans or source-code??

glyn moody said...

That's a good question.

I think the answer lies in the differences between those things you mention.

If I get the recipe for a cake, will I be able to reproduce that cake? Approximately, perhaps, but there are many other elements not in the recipe - the skill of the chef.

If I am given the plans for a radio, can I build it? Well, some people could, but I couldn't.

If I am given the description of a processor, can anyone do anything with it? Only if you have the skills and access to right equipment.

Software, I think, is different. Software *is* the underlying code, and quite a few people can do something with it, or pay someone to do something with it.

So, to answer your question, maybe we should be given all those things, but they wouldn't be equally useful. Being given the code is very useful, since it is by far the easiest thing to build on; and that really is the point: sharing the underlying code allows more things to be built, which is why sharing is a good thing.

Crosbie Fitch said...

It is not unethical to sell cakes without recipes, aside from the responsibility to list certain ingredients for those who may have issues, e.g. peanut allergies.

It not not unethical to sell binaries without source either. The GPL obliges disclosure of source to derivatives in order to undo the closed source EPIPHENOMENON of copyright. Without copyright there is no epiphenomenon, no incentive to keep source secret - because you can't sell the binaries, you can only sell the work. And those who buy the work will insist on the source - just as MS demands the source from its coders - they'd get fired if they tried to sell binaries to their employer instead of the source to their work.

See http://culturalliberty.org/blog/index.php?id=278

Anonymous said...

Regarding the bakery and cake comment above:

Person wrote: "If you go to a backery and buy a cake, is it unethical if you don’t get the recipe as well?"

The analogy between recipe and source code, in the way you present it, is flawed.

Let me explain: the cake is the OUTPUT of the recipe. If a recipe is freedomrespecting (by allowing unrestricted use, modification, and distribution with out without modification), then this does not apply to the OUTPUT, i.e. the cake. Put another way: the cake (output) is not the corresponding source of the recipe-steps performed. (See http://hackerpublicradio.org/eps.php?id=1116 at tracktime 30:58)

To fix the analogy. Here's an example of a violation of "freedomrespecting recipes":
Assume a recipe-seller states: "all my recipes are freedomrespecting." You then decide to purchase from him a recipe-executor-black-box, and a number of recipes on USB-stick. At home you plug in the recipes-USB-stick into the recipe-executor-black-box and select "Grandma's ultraspecial chocolate cake". The executor-black-box removes some ingredients from the connected ingredients-containers (flour, sugar, chocolate, etc.). You cannot see what's going on inside, but after one-and-a-half hours... out comes a cake!
So you tell yourself: well that's great, but I want to bake this cake with my own hands and change the steps slightly. You connect the recipes-USB-stick to your own computer, expecting to find the steps. But low and behold: you find that the "recipes" are only in a machine-readable binary format, that you cannot decipher them.
This is a freedomrespecting recipe violation!!! If the recipes really were free, you would have received not only the binary format, but the steps of the recipe in human-readable english as well!

Now lets say you have aquired a freedomrespecting recipe for a cake (and here I really mean a free recipe, in that it is not obfuscated or coded; but instead a description of steps). Lets say you have a bakery and sell a customer the cake (baked according to the recipe): do you have to give the customer the recipe?
No, since the cake is the output. You are not selling the customer the steps to produce the cake.

But now you might try and apply this to software and say: "But look here: the binary program is the output of the source code. So if you pass on the binary program, you don't have to pass on the souce code, right?"
This would be a misunderstanding, since the program is NOT the output of the source code. Instead: the program is merely the output of a compiler. But the binary program is a direct transformation of the source code: The steps in the program, are still the steps in the source code. We say: the source code is the "CORRESPONDING SOURCE" of the program binary.
Thus with free software, the software ... in all the forms it is distributed: binary, etc. needs to include the "corresponding source", that give one the freedom to modify it.