Re: <nettime> Linux strikes back III

[Francis Hwang <sera@fhwang.net>]

IIRC, even when you make a free software project there still exists a 
copyright that has rights under traditional I.P. law. A free software 
license like the GPL or LGPL is simply an extension of those 
traditional exclusive rights granted to you by old-fashioned I.P. law. 
Think of it as a radically different sort of shrink-wrap license.

Free software gets confused a lot with public domain, but they're not 
the same. If I'm a songwriter I can record a cover of a traditional 
folk song in the public domain, and sell it for my own gain, without 
having to worry one bit about what it does to my rights over the 
recording or my entire album. A programmer cannot include GPL'd code in 
the same way.

When the FSF is intervening, it's only in cases where it owns the 
copyright for that GPL'd or LGPL'd code. How come it owns the 
copyright? Because the programmer gave it to them, figuring that all 
this legal stuff is really no fun and that in any case the GPL would be 
better at it than him. So this isn't the case of the FSF going 
vigilante on something it has no business being involved in. It is 
pursuing an action that you could consider to be at the core of its 
organizational mission.

The only thing I agreed with in that Forbes article was the line about 
this showing the "dark side" of the free software movement. If I were 
on the wrong side of the fence I'd call it a dark side, too. Make no 
mistake: Richard Stallman is, depending on your point of view, a 
visionary, or a fanatic, or a revolutionary. He does not view code 
ownership as a matter to be negotiated; he thinks of it as ethically 
untenable in the same way that some people think that gays shouldn't 
marry, or that you shouldn't eat animals.

Stallman's stature isn't due to his beliefs, which are probably more 
extreme than those of most free software programmers. It's because he 
was a pioneer who did much to build up the legal and technical 
foundations of the movement. He invented the concept and wrote its 
first license, the GPL. And he programmed both the 800-pound-Swiss-Army 
knife that is the GCC compiler, and the 
operating-system-that-thinks-its-a-text-editor Emacs, so even if you 
think he's too prone to get into internecine squabbles or that he 
should pipe down about calling it "GNU-Linux", he gets more geek points 
than you'll ever have.

However, he didn't do much to get free software into the eyes of 
corporations. He makes a poor ambassador: He's irascible, eccentric, 
and by some accounts he sort of smells. Other ambassadors have stepped 
in in the last decade. One is Linus Torvalds himself: By most accounts 
the creator of Linux is an absent-minded, friendly programmer boy 
genius who's happy to avoid politics if doing so gives him more time to 
think about the next kernel.

Another is Eric Raymond, the hacker who wrote "The Cathedral and the 
Bazaar". "Cathedral" is more of an economic text than an ideological 
one; it's more concerned with how free software is an efficient way to 
produce high-quality software than whether such a method might be 
morally superior to its alternatives. Raymond was the one who coined 
the term "open source", a term that's a little blander and less 
terrifying to the boardroom. (I've been involved in more than one 
intense discussion about this coinage, and heard more than one 
programmer lament the fact that "free" in English means both "with no 
cost" and "liberated", whereas the FSF usage of "free" more 
significantly corresponds with the second meaning. Ah, the linguistics 
of alternative intellectual property schemes.)

But regardless of who makes for better P.R., the fact of the matter is 
that Stallman has control over much, much less code than Raymond. The 
FSF (and, by proxy, Stallman) owns the copyright over much of what's 
essential to Linux. (Which means that Stallman has an okay reason to 
ask everybody to call it "GNU-Linux"; but dammit, there are already too 
many syllables in my life as it is.)

So today Raymond and Torvalds serve as the non-threatening face of free 
software, and execs who aren't paying attention think it's just a way 
to get cost-free software without having to actually deal with those 
odd programmers. Meanwhile the FSF flexes its legal muscles whenever it 
feels it has to. Mixed messages indeed ...

Francis Hwang
http://fhwang.net/





On Thursday, October 16, 2003, at 07:20  AM, Ian Dickson wrote:

>>
>> but to rerun an old story or a continuing one for me - this is what
>> troubles me about the reliance of fsfer's in whatever there guise on
>> rigid forms of law ... if the fsf thingy is possibly "anti - property"
>> or "proprietary" why not make the blatant choice of styling your legal
>> language or "protection mechanism" in a non contractual form. Even the
>> allegedly most radical fsfer's still can't remove themselves from the
>> shackles of rigid rule based notions of law.
>>
>> As I keep saying the "structure and organisation of os means you don't
>> need to rely on them to represent you ... we can all sue them all (if 
>> we
>> so desire) ... users and contributers alike ...
>>
> I am confused.
>
> Do you think that the FSF should simply let companies do what they like
> with Open Source code? Including make money out of it?
>
> This would be the practical effect of moving to an "each person sue on
> their own account" or "code supplied on non enforceable terms" basis.
> (People as individuals cannot afford to sue, and it wouldn't stop the
> FSF suing anyway for those individuals who opted into any such action).
>
> Of course if you want to write code and release it without any strings
> attached, you can.
>
> If you think that Linux should be released on a such a basis, 
> personally
> I think you'd see a lot of programmers stop contributing.
>
> Cheers
> -- 
> ian dickson                                  www.commkit.com
> phone +44 (0) 1452 862637                    fax +44 (0) 1452 862670
> PO Box 240, Gloucester, GL3 4YE, England
>
>            "for building communities that work"
>
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