Re: copyleft (was: Re: Owning a piece of my mind)

[Eric Eldred <eldred@mediaone.net>]

I think the way we started this conversation it was
in trying to decide if technological innovations
would prevent corporations from expanding the range
of their control over intellectual property.

One of these innovations is the attempt to use GPL
to spread "freedom" areas in software.  Another idea
that was proposed would be availability of strong
encryption, maybe to create anonymous territories.

One problem I see with this idea of fighting fire with
fire might be that it is based on the fundamentally
questionable assertion that "intellectual property"
must be "owned" by a legal person in order to be
either then made "free" or capable of exploitation.

Intellectual property disputes often end up in court,
and judges like to have some attempt to settle them
first before clogging the judicial process.  Thus
they look for simple ways to solve the problem, such
as who registered copyright first, whether there is
substantial similarity, whether it is possible to
assess damages, and so on.

But it is hard to bring a suit against an intellectual
property rights infringer unless one first has standing.
In the case of a corporation wrongfully taking an idea
out of the public domain, locking it up by patent or
copyright, and preventing others from accessing it--
in that case, it is hard for a member of the public
to get standing to stop this.

If we actually had a history of FSF lawyers taking
copyright offenders to court and forcing them to live
up to the GPL, then we could gain more assurance that
the GPL is really living up to its aim of gradually
increasing the level of "freedom" in software.  (Then
we might extend use of the GPL from software to other
digital domains, trying to invent the best licenses
for these other things, to increase innovation and
best protect the authors and the public at the same
time.)

I agree that the GPL differs from a normal shrinkwrap
license in that the intentions are good, to prevent
further restrictions instead of piling more restrictions
on the product.  But I also believe that it suffers from
the faults of other shrinkwrap licenses in that it is
not something that operates under normal contract law
and procedures.

Ideally, the specific level of inclusion of the "other"
software with the GPL'd software would be something
that could be negotiated between the separate parties.
We have seen here that there can be some dispute as
to the practical meaning of how much "other" software
can be included, and what can be done with it.  (For
example, I was not aware that one could take GPL'd
software, turn it into a separate file under the LGPL,
and thus change the license on it.  Are you sure this
is correct?)

What I am proposing is simply that there be a better
balance, and some mechanisms established to maintain
the balance as technology and society go on.  Using
the Constitution and the laws and the courts seems
a good way to do this, instead of leaving it all in
the hands of the technical experts.  At least that's
what I think.  (Maybe I'm sounding too much like my
lawyer, Lessig, here--I'll have to balance this later
with my objections!)


Dean Anderson wrote:
> 
> Well, OK. I probably am assigning a narrow meaning to shrinkwrap.  But the broader issue of having to agree to terms before redistributing or reselling something isn't really new.  Many services and products have licencing or purchase agreements which prohibit or regulate resale, or limit liability or something. Usually businesses are involved in redistributing things, and there are always terms of use. They are expected and anticipated. The difference here is that there isn't a purchase agreement in place to make limitations on  resale.  But such practices have been enforced on "free" things such as ideas through patents and other means for a long time.  So some imposition of restrictions on the commercial use or resale of something that is otherwise free isn't unique to the software industry.  I don't think I'd call this shrinkwrap, but I see a similarity in that both are really motivated by a desire to avoid having a complex purchase and sale agreement in which terms of u!
!
se or
> redistribution could be specified.
> 
>                 --Dean