09 July 2010

Could Free Software Exist Without Copyright?

A couple of days ago, I was writing about how Richard Stallman's GNU GPL uses copyright as a way of ensuring that licensees share code that they distribute – because if they don't, they are breaching the GPL, and therefore lose their protection against claims of copyright infringement.

On Open Enterprise blog.


Crosbie Fitch said...

Keeping source code closed is an epiphenomenon of copyright - why publish source if you have a monopoly on copies of binaries?

However, without that monopoly there is no market for copies, so the market is for software development, and if you're buying work you're buying the documented source because that comprises the work you've paid for. Coders know this because they don't remain employed very long if they insist on only providing binaries for their wages.

So, it is unwise to propose that (if copyright was abolished) coders should still be legally compelled to provide source code if they distribute any binaries. This would violate an individual's natural right to privacy. Fortunately it is unnecessary even from a utilitarian perspective.

With copyright abolished there'd be no commercial incentive to sell binaries without source. Also, without copyright there are no EULAs.

Copyright and patent should be abolished. A reproduction monopoly of even a year would still represent an unjust derogation of individual liberty.

Glyn Moody said...

@Crosbie: that's interesting - perhaps you should chat to RMS about this...

Anonymous said...

"Could Free Software Exist Without Copyright?"

Of course it could; in fact, it does!

As long as you can see, use, change, and redistribute the source code, it is free software.

So, any software that is published under the public domain or a very liberal BSD-like license would exist in a copyright-free world.

Glyn Moody said...

True: but it's not protected against being enclosed, as the GPL ensures. The question is whether it's possible to do that in the absence of copyright.

Crosbie Fitch said...

This may be a heretical point, but the GPL is actually extremely weak at forcing source code visibility.

Consider the case where Psychomoft has released a binary derivative of a GPL work in order to sell copies of that binary AND enforce copyright against anyone selling illicit copies.

Firstly, no-one initially knows it's a derivative aside from the Psychomoft author and their confidants.

If the binary becomes popular, yes someone may suspect it is a GPL derivative and take steps to correlate the binary with the respective GPL sources they guess it may have been derived from.

Secondly, Psychomoft are only doing this because copyright exists and enables them to sell copies (despite relying on infringement yet to be detected).

Thirdly, even after someone has demonstrated the binary is a GPL derivative the copyright holder of the underlying work (licensor) must still prosecute Psychomoft the infringer, and even then not all jurisdictions will enable the 'discovery' of Psychomoft's source code to the derived work, and even if they do, it's not necessarily able to be forcibly published.

One can only rely on the penalty of infringement to
deter illicit incorporation of GPL code.

But that's just how effective GPL is in COERCING source code visibility.

The GPL is extremely effective in persuading source code visibility, but then that's because coders can grok the underlying libertarian manifesto in the license. That principle and the peer pressure to uphold it play a large part in reminding coders that it is antithetical to begrudge anyone access to the source.

It probably also helps that so many do believe that but for the GPL's obligation to disclose source code, no-one would disclose it. Though sadly there may well be such a tendency simply because it's a minor hassle to ensure source is also provided when the binary suffices in most cases. Making it an apparent legal obligation helps overcome this hurdle.

However, that's just the GPL today - with copyright enacted.

[See Part 2]

Crosbie Fitch said...

[Part 2]

For a more equivalent post-abolition world we should consider a different case.

This is the case where Loopysoft has released a binary derivative of a GPL work that they falsely claim to be a BSD derivative in order to evade providing the source.

In this case it is self-evident that the recipient is perfectly satisfied with a binary - whether it's a free of charge or they've paid good money. If they wanted the source they wouldn't have accepted/paid for the binary without it. Indeed, if they wanted the source they would pay the coder the price for their work or no deal.

In a post copyright-abolition world this is what providing a free demo looks like. Someone proposes paying $1,000 for software to be developed. The coder provides the binary free of charge to demonstrate the work has been done. The commissioner then pays $1,000 for the source code (the intellectual work they paid for). Don't like the demo, don't pay for the source. The last thing you want is the coder and commissioner being denied the ability either to provide a demo or be paid for their source because of some copyright indoctrinated law that prohibited binaries being distributed without source.

The need to incentivise source code disclosure only exists in a copyleft world because copyright disincentivises it. Post copyright abolition there is no disincentive to counter. When people pay for software to be developed they pay for source code. The binaries are for computers, cost nothing to make, and are consequently free of charge. People pay for work that is expensive. They don't pay for work that they can get their own computer to do for nothing (well, a few Joules perhaps). It's only monopolies like copyright that enable high prices to be put on things that cost nothing to make.

I also don't want to see FSF stormtroopers raid little Bob's bedroom because he uploaded a binary without source code.

In a world without copyright there would be no need to re-enact it in order to force people to surrender their source code. The best way of persuading a coder to surrender their (freely copyable) source code is to offer them money for it. And that's the dimensionally correct exchange: work for money, money for work. No violation of privacy. No derogation of liberty.

Glyn Moody said...

@Crosbie: fascinating stuff, as ever - many thanks.