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.

That's all very well, but as many people have pointed out, this does result in the paradoxical situation that the GNU GPL actually *depends* on copyright, an intellectual monopoly, in order to spread intellectual freedom. Moreover, it seems to doom free software into a kind of symbiosis with copyright, forcing it to remain a supporter of that monopoly, since without it, the approach used to make the GPL so powerful would not work.

This is obviously a slightly troubling prospect, so a little while ago I thought I'd raise the point with RMS himself, since he was bound to be aware of the issue, and presumably had a solution (I hoped). This issue has come up a few times in recent months, so I thought it might be worth publishing his answers to my questions to shed some light on this important topic.

First, I asked him how we should reform copyright, since it is an intellectual monopoly that is widely abused by publishers, but the GNU GPL depends on it. Stallman replied:

For most kinds of works, I think copyright would be acceptable if we (1) made it shorter (my suggestion is 10 years), (2) permit noncommercial redistribution of verbatim copies, and (3) define transformative "remix" uses clearly as fair use.

However, I think software and other works of practical use must be free.

He went on:

I would be glad to see the abolition of copyright on software if it were done in such a way as to ensure that software is free. After all, the point of copyleft is to achieve that goal for derivatives of certain programs. If all software were free, copyleft would not be needed for software.

However, abolishing copyright could also be done in a misguided way that would have no effect on typical proprietary software (which is restricted by EULAs and source code secrecy rather than copyright), and only undermines the practice of copyleft. Naturally I would be against that.

In other words, I am more concerned with how the law affects users' freedom than with what happens to copyright as such.

I wondered how copyright might be abolished in the “right way” so that free software would still be possible. Here's Stallman's answer:

It would be necessary to eliminate copyright on software, declare EULAs legally void, and adopt consumer protection measures that require distribution of source code to the user and forbid tivoization.

Stallman explained what he meant by “tivoization” a few years ago, when the GNU GPLv3 was being drafted:

This is the practice of designing a machine so that if the user installs a modified version of a program, the machine refuses to run it.
It's named after the first product I heard of which did this, which is called the Tivo. The Tivo contains Free Software released under version two, and they provide the source code, so the user of the Tivo can modify the program and compile it, and install the modified version in his machine, whereupon the machine won't run at all because it notices that this is a modified version. This means that in some nominal sense, the user has freedom number one, but really, in practical terms it has been taken away, it has been turned into a sham. And this happens systematically, and it makes a systematic threat to users' freedom. So we've decided to block this, and the way we block it is as part of the conditions for distributing binaries, we say that if you distribute in, or for use in, a certain product, then you must provide whatever the user needs in order to install her own modified version and have them function the same way, unless her changes in the code change the function. But the point is that it's not just the user has to be able to install it and has to be able to run, but it has to be able to do the same job, despite having been modified.

Interestingly, Stallman doesn't believe that it is necessary to abolish copyright completely, just rein it in somewhat; the exact term is up for debate:

My proposal to make copyright last 10 years from date of publication is meant to be conservative. I agree that 5 years might be enough, and I have nothing against a shorter period. But I don't want to push for it to be that short.

The advantage of this “modest proposal” is that it wouldn't require any major new laws, whereas the consumer protection measures that Stallman says are necessary to preserve software freedom if copyright were to disappear, certainly would. Moreover, it is also easier to lobby for moving copyright close to its original terms (which were 14 years for new works, with the option of an additional 14 years) than for its complete abolition. Ironically, then, this is a very pragmatic approach – despite the fact that Stallman is often accused of being very unpragmatic.

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