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.

Follow me on Twitter @glynmoody