Recently, Stallman authored a short essay outlining some problems he sees in the Swedish Pirate Party’s position that the copyright term should be limited to 5 years.
Presenting the Pirate Party Position
Here are the relevant bits:
The monopoly for the copyright holder to exploit an aesthetic work commercially should be limited to five years after publication. Today’s copyright terms are simply absurd. Nobody needs to make money seventy years after he is dead. No film studio or record company bases its investment decisions on the off-chance that the product would be of interest to anyone a hundred years in the future. The commercial life of cultural works is staggeringly short in today’s world. If you haven’t made your money back in the first one or two years, you never will. A five years copyright term for commercial use is more than enough. Non-commercial use should be free from day one.
We also want a complete ban on DRM technologies, and on contract clauses that aim to restrict the consumers’ legal rights in this area. There is no point in restoring balance and reason to the legislation, if at the same time we continue to allow the big media companies to both write and enforce their own arbitrary laws.
Sounds pretty good on an initial read, no?
The idea that copyright should be limited in length to some amount is nothing novel, though reasonable people can differ on the exact length. “Reasonable people” does not mean media conglomerates. There is a difference between considering 5 or 14 years, and 14 or 120 years. The former is a matter for honest debate, the latter a dark mockery of the very concept of copyright.
Stallman Sees Something Surprising
Because the current concept of Free Software relies on using copyright against itself, anything that affects copyright necessarily affects Free Software.
Stallman, naturally, sees this immediately and raises some problems.
There can be non-copyright restrictions
Patents, EULAs, NDAs, and other such extra-copyright measures can restrict software just as copyright can. It will do little good to restore sanity to copyright, if proprietary vendors simply turn to other measures to restrict user freedom.
Some proprietary developers entertain EULA clauses most vile (and of legal questionability), restricting how you may use or even what you can say about the software. These extra-copyright restrictions must be removed as well.
“Freed” proprietary software is not Free Software
The major strength of Free Software is the availability of source code, necessary to study, change and improve the software. Availability of source code also prevents proprietary vendors from simply installing a “killswitch” in the software that renders it non-functional the day after copyright expires.
If the law were such that “killswitches” were recognized as a form of DRM – which the Pirate Party calls for a complete ban upon, this risk may be mitigated.
Consider how coming out of copyright might affect a film or piece of music: once the work is in the public domain, anyone may re-use or modify any portion of it. But, compare that to proprietary software in the public domain with no source code: the user can not re-use or modify any portion of it. Because of the nature of software, it is the freedom of source code that is important, not the freedom of the object code.
Now consider that Free Software would lose all protection on its source code after 5 years, after which proprietary vendors could appropriate the work, but without having to release their own source code! The effect would not be equal between Free Software and closed software. Proprietary vendors would benefit greatly from all the Free Software moved into the public domain, without making an equal contribution to society by releasing any source code at all!
Resolutions Reviewed
There are two proposed methods to deal with these issues; one from Stallman, and one from within the Pirate Party.
Stallman’s suggestion is to hold proprietary software source code in escrow, and then release it into the public domain after 5 years. In this case, it is true that Free Software would lose its protections after the 5 year period, but so would proprietary software, so this seems fair.
The issue I see here is proprietary vendors playing games about what constitutes the “source code” of a given program. All included libraries? Must the code be un-obfuscated? We can be sure that some proprietary vendors will not go gently into that dark night.
The suggestion from within the Pirate Party is that copyright length is extended as freedoms are extended to the user. The more free a work, the longer a period of copyright it enjoys. This offers the advantages of being non-material specific – it would apply to anything, not just software – and it adds a real market value on Freedom.
The issue I see here is the need to codify how Free a work is, which is not an easy process. The GPL is constantly under attack from commercial entities that want all the rewards of Free Software with none of the responsibilities; directly tying copyright to Freedom would only increase that problem.
The Issue to be solved
The real issue here is that if you use your enemy’s strength against him, what happens when you take that strength away? Because Free Software’s legal basis is firmly rooted in the strength of copyright, if copyright is weakened, then so is Free Software.
Of the two proposed solutions, I lean towards the idea of tying length of copyright with Freedom to Users. I like that it doesn’t not carve out an exception for Free Software – because I think the ideals behind Free Software need not be limited to software. I also like the idea of codifying into law how Free something is – though I fully realize what a political issue that would be and how hard proprietary companies would work to subvert it.
A third path would be to find or create some way to enforce the Four Freedoms without relying on copyright law to do so. Is there a different area of law that could be used? I am unaware of any non-copyright-based Free Software ideas. If there were no copyright, could the Four Freedoms be enforced?
Of course, it is unlikely that copyright will be reduced to 50 years – much less 5 years – so the point is largely academic.
That being said, I find it interesting to consider ways Free Software might be enforced without copyright.
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