Over the past 50 years, however, that balance has shifted. Largely thanks to the entertainment industry’s lawyers and lobbyists, copyright’s scope and duration have vastly increased. In America, copyright holders get 95 years’ protection as a result of an extension granted in 1998, derided by critics as the “Mickey Mouse Protection Act”. They are now calling for even greater protection, and there have been efforts to introduce similar terms in Europe. Such arguments should be resisted: it is time to tip the balance back.

The Take-away

It’s a brief but well-written article that lays out simple and hard-to-contest problems with the current copyright situation.

Not only is it encouraging to see a publication like The Economist discussing the issue, but take a look at the comments – nearly everyone acknowledges there are major problems with the current system.

The point of this is that these people are not hippies, zealots or communists. They aren’t gathering around The Economist to let their Freak Flag Fly. These are normal, rational and concerned people.

The Effect

I suspect that such popular (and rational) opposition to excessive copyright terms, protection and enforcement is a major reason why abominations such as ACTA must operate hidden and behind closed doors. It has become increasingly difficult for corporate interests to publicly shape copyright law in their favor, because it is so out of balance there is no acceptable justification for it.

Of course, instead of seeking out a reasonable balance through public discourse, the choice is to forge ahead in secrecy and refuse to inform the public on what they are doing.

If The Economist and people in general think that copyright laws and enforcement are out-of-whack now, having been developed in the open, imagine how insane they will be when the only entities allowed to even participate in shaping them are organizations like the RIAA and the Pharmaceutical Research and Manufacturers of America.

If WordPress were a country, our Bill of Rights would be the GPL because it protects our core freedoms.
- WordPress Blog

I’m a fan of WordPress: not only is it the best blogging platform I have ever used, but it is also a big proponent of the GPL.

WordPress is a great example of high-quality, useful FLOSS software – one that has a successful business build around it, in fact.

The Problem

WordPress has always taken the position that themes should be released under the GPL, and even consulted the SFLC. The end result? “PHP in WordPress themes must be GPL, artwork and CSS may be but are not required.”

But not everyone agrees.

A different lawyer’s view

I recently ran across a couple of interesting posts from Mike Wasylik over at Perpetual Beta  arguing that the GPL should not apply to themes.

The first (and better, IMHO) is “Why the GPL does not apply to premium WordPress themes“. (The second, and lesser is “Why the GPL/Derivitive Works debate doesn’t matter for WordPress Themes“)

Here’s a shocker: I actually like Mr. Wasylik’s criticism, not because I fully agree with it – I don’t – but because the author lays out a reasoned case. I do not exaggerate when I say this is the first rational criticism of anything related to the GPL I can recall seeing.

Compared to the normal “GPL==communism” trash that passes as discussion in many circles, Mr. Wasylik’s writings are damn near scripture.

Criticism is important

I greatly appreciate rational and thoughtful criticism of the GPL, because I do not think the GPL is some perfect guarantee of Software Freedom. It’s clear that GPLv2 didn’t quite get the job done, as Novell and Microsoft gleefully demonstrated, and there’s no reason to assume that GPLv3 is perfect and will never need to be revised.

The focus – as ever – should be on ensuring Free Software. The GPL is a tool - perhaps the best one possible in our legal environment - but only a tool, and should not be confused with the end goal of Freedom!

The first article

Amid the legal jargon and such, I see the basic question as this: can a (GPL) platform dictate the (GPL) license of programs running on top of that platform?

Here is the justification of support given:

The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.

But I disagree with this in general and in specifics.

First, I do not think that a (non-GPL) platform can dictate a (non-GPL) license of programs running on top of that platform. I do not think that Microsoft could say that GPL programs can not be developed on top of Windows! So, the inverse here - while not exactly the same -is close enough to give me pause.

Second, it is true that in PHP,  include() basically joins the portions of code together just as if they were written that way originally. But that’s an artifact of the language. The point of the include() is not to modify WordPress, it’s just to “call” the template, just like an API call or fork() or whatever.

Third, I simply don’t see templates as modifying WordPress anymore than CSS does. I suppose the template system could permit such interaction that the argument could be made – its not unreasonable – but conceptually I don’t see it.

To a large degree, Mr. Wasylik provides logical and legal support for his argument here – and I think he makes a very interesting case.

The second article

Compared to the first article, this is a disappointment, though still far superior to any other GPL criticism I am familiar with.

Unfortunately, I think Mr. Wasylik badly stumbles trying to apply “Fair Use” as a defense here. I think the argument that templates are not derivative works is much stronger.

This is already a very long post, so I will only focus on one point of this article, the “real clincher”:

Effect on the potential market

The fourth factor, though, is the real clincher that leads me to believe the distribution of premium WordPress themes is fair use of any protected WordPress works. The “market effect” test has been deemed by our Supreme Court to be “undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57, 105 S.Ct. 2218, 2233-34 (1985). The “market effect” test determines whether the alleged copyright infringement would somehow depress or diminish the ability of the author of the protected work to market that protected work.

In this case, the answer is a head-slapping “Of course not!” It is axiomatic that a WordPress theme cannot function unless there is a copy of WordPress running to support it; in fact, this is one of the arguments that GPL proponents make to support their case that the themes are derivative works. The “copying” by theme distributors can never displace a single copy of WordPress, so there is no negative effect on any potential market; and in fact, by enhancing the aesthetic and functional value of WordPress, themes promote more widespread use of the underlying software. Developers of WordPress themes increase the market for WordPress, not depress it. Increasing WordPress market share is in the theme developers’ best interest, for more WordPress users means more potential customers for premium themes.

Because the impact of premium themes on WordPress market share is at worst neutral, and in all likelihood premium themes substantially bolster the market share of WordPress with respect to its competitors, the fourth factor weighs heavily in favor of a finding of fair use. As the “most important element” of fair use, this finding cannot be understated.

We can almost instantly reject this analysis. Why? Because if one did accept it, then any similar software written for Windows – theme managers, alternative window managers, screensavers, and so on – would have Fair Use coverage and could ignore Windows’ copyright! I don’t see that argument gaining much traction. I was quite surprised and disappointed to see it offered up.

Summary

I’m always interested in (good) criticism of the GPL and Free Software, because I believe we are still struggling to understand, achieve and apply these concepts.

Perpetual Beta at least makes a reasonable case – in the cesspool of dreck I normally have to wade through reading criticisms about the GPL – I am appreciative of that effort.

Look. I wasn’t surprised when Microsoft launched yet another patent/IP FUD attack against Linux and Open Source, and I’m not surprised that some organization with the Business Software Alliance as a member is attacking Open Source.

It is what they do. If you are surprised or shocked, you aren’t paying attention. Let me just illustrate another fallacy card in the deck of disinformation being dealt.

Break it on down now

You need to understand something: the BSA is basically a front organization for Microsoft and has consistently and continuously lobbied against Free and Open Source Software.

They have done everything anti-Open Source they can short of printing up stickers of Calvin pissing on a penguin.

To understand where the BSA is coming from – or if you find yourself in need of an emetic – read its 2005 publication Open Source and Commercial Software: An In-Depth Analysis of the Issues. The bias against Free and Open Source Software is present in virtually every single sentence; much of it serves as talking points for Microsoft apologists and the IIPA “report”.

A small universe

Here’s the problem with much of the BSA’s position in this publication – along with those who parrot it 5 years later -  all source is “open source” to someone.

What do I mean by that? Within the confines of the proprietary software development team, the source is open: they can all see it, they can all modify it, they can work on derivatives of it, they can redistribute it to one another and so on. In that small and closed-off universe, the source is “Open”.

In this sense, Closed Source software is a sub-set of Open Source software. A horribly limited sub-set, to be sure – but what it means is that any problem Open Source has, Closed Source shares.

Examples, if you please?

Take if you like, the footnote of page 10 of the BSA publication:

³ See the classic paper by Ken Thompson, one of the fathers of UNIX, “Reflections on Trust” (http://www.acm.org/classics/sep95), where he notes that no amount of source-level verification or scrutiny will protect against untrusted code. The open source process cannot find clever subversions, no matter how many people look at the source code.

This is true. It is also true that the closed source process cannot find clever subversions, no matter how many people look at the source code.

How many “backdoors” and company-unauthorized “easter eggs” have been found in proprietary, closed software? How many have not?

The Open Source / Closed Source divide is irrelevant to finding clever subversions. Secure code requires an analysis process. It requires developers that are security-minded. It requires many things that are independent of source visibility. An Open Source project may have them. It may not. A Closed Source project may have them. It may not.

It is as foolish to imply that Open Source automatically can not find security problems as it is that Close Source can.

Here’s another example, same page – main body:

Some open source solutions have vulnerabilities that have remained undiscovered for years notwithstanding public availability of the code.

This is true. It is also true that some closed source solutions have vulnerabilities that have remained undiscovered for years notwithstanding availability of the code (to the developer).

And, I must point out that it is also true that some closed source solutions have vulnerabilities that have remained unfixed for years notwithstanding public revelation of the issue. Which could be quite a bit worse, by the way.

In every single case that the BSA report points out a security “weakness” in Open Source, it fails to acknowledge that very same problem applies to Closed Source. The truth is that the Open Source and Closed Source face the same development challenges, because those are Software Development challenges.

The development methodologies do not differ on the problems they face, only in how they attempt to deal with them. There is no magical guarantee that a Closed Source project has robust security processes or especially qualified developers.

Even the most high profile, tightly closed, well-funded Closed Source projects are released riddled with vulnerabilities known and unknown to the developer.

I Love my Converses

I could go on and on – for the BSA report, indeed much of Microsoft’s bogus criticism, is mired in this fallacious reasoning; only ever pointing out the issue with respect to Open Source, when in every case that the truth holds, it also holds for Closed Source. The bottom line is that any criticism you care to apply to Open Source can be applied to Closed Source.

The thing that is so beautiful is that the converse is not true: Closed Source must share all the problems of Open Source, but it can not share all the benefits. Again, this is because Closed Source is a crippled sub-set that is only “Open Source” to a small cadre of authorized developers, but true Free and Open Source Software is not so constrained.

One of the upsides of the recent news that 75% of Linux kernel development is now being done by paid developers is that it further discredits Microsoft’s FUD attempts here. Large FLOSS projects can attract qualified developers, get them paid, and implement practices that increase the security of the code.

But! In actual practice in the real world, Large FLOSS projects benefit even more because they can have volunteers in addition to the paid developers. Open Source has that additional opportunity in addition to paid developers. Closed Source does not. It can not, by definition.

The Open Source universe is vast.

The first time copyright assignment drew my attention was in how Novell’s go-oo hypocritically uses it as FUD against Open Office, and – of course – how ignorant and/or malicious mono apologists used it as a talking point.

Today,  I read a very interesting post by Bradley M. Kuhn, “Not All Copyright Assignment is Created Equal“, where he lays out 2 points:

FSF promises to never make their software proprietary. Shuttleworth claims that All copyright assignment agreements empower dual licensing, and relicensing, but that is simply a false statement if you include FSF in the “All”. FSF promises to never proprietarize its versions of the software assigned to it and always release its versions of the software under Free Software licenses.

Non-profits have a different duty to the public. For-profit companies have one duty: to make money for their owners and/or shareholders. Non-profit organizations, by contrast, are chartered to carry out the public good. Therefore, they cannot liberally ignore what’s in the public good just because it makes some money. An organization like FSF, which has a public charter that explicitly says that it seeks to advance software freedom would fail to carry out its public mission if it engaged in proprietary relicensing.

Both points are good, but the second is especially powerful as it illustrates the divide between players like the FSF and any given “open source company” – and illustrates the foolishness of criticising the FSF as if it were a for-profit company.

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.