Karl Fogel posted a thoughtful and calm response to my essay, "Should Copyright Be Abolished?" and invited my reaction. So here goes...
First, I'm afraid you're misreading some of my statements or intentions. I never say the right to control your work is a natural right. In fact, if we look at the sheer brutality of nature, one could say the only "natural" right is to eat what you're strong enough to kill and able to digest.
The rights I described are granted by copyright, much like a U.S. citizen's "rights" to freedom of speech and freedom of religion are granted by the U.S. Constitution. But if you look at common law, the rights to freedom of speech and religion are not absolute. Obscenity still exists as a legal concept and exception to freedom of speech. And I recall at least one news story about a woman going to jail for prostitution despite claiming herself a priestess of Ishtar.
While we laud ourselves for our "freedoms" (as in "They hate us for our freedom"), those freedoms are not absolute and are influenced to some extent by the values of our society. I do not believe that the rights granted by copyright are natural or absolute, and believe that they should be influenced by the values of society. But like freedom of speech and freedom of religion, I feel they are rights that have value and should not be abolished because of how they are abused.
Now I support free/libre software and content. I've contributed money (not large amounts as I'm not rich) to Open Office and Project Gutenberg, and I've contributed art to the Open Clip Art Library. Furthermore, I dislike DRM that prevents fair use of products I paid for and I believe that a copyright term should be shortened back to 14-28 years, at which point the work enters the public domain. If you cannot recoup your expenses and make a reasonable return on your work in 28 years, then it's time to call it a failure. And if you have, then the purpose of copyright was served and you have no further need of that protection.
So I'll address three points from your essay and the posted responses:
1: Copyright can be replaced with licensing.
How? Just like the DMCA prohibits hacking DRM, you'd need laws that prohibit me from removing your license. And then if I thought your license unfair and removed it, would the people I distributed the license-free version of your software to be obligated by a license they never saw or would the genie just be out of the bottle?
If the genie wouldn't be out of the bottle, then we're talking about something as stupid and unfair as some of you believe copyright is. Obligating people to the terms of licenses they never agreed to and may have not known existed? Come on.
So the creators of products, in an attempt to enforce their licenses, would dedicate resources to figuring out ways to make the license inseparable from the product... DRM.
Instead of making DRM less of a pernicious beast, we make it worse. Then an anti-license movement emerges.
So, while licensing could replace copyright, is it any better a solution? I personally hate DRM and would love to see the law be "you can choose copyright or DRM for your products, but not both, and there's no protection for DRM. So if you choose DRM and someone hacks it, you're SOL."
2: Copying doesn't diminish availability.
No it doesn't. But it does diminish value. And that's not just the value to me as the creator who profits from controlling availability. It diminishes the value to society.
Now that seems counterintuitive. You might argue that free stuff has a great value to society because it enables X, Y, and Z. But as a general tenet of human behavior, one can say that if it takes no effort to acquire it, we don't value it. If something is free or too easy to acquire, we take it for granted, squander it, waste it.
As a wealthy nation, you can see that in our attitudes toward a wide variety of cheap goods. They're so cheap to replace, why bother maintaining them or fixing them when they break? There are people in Cuba driving cars from the 1950s that they maintain because they can't get new ones. Meanwhile, here in the U.S., car companies barely seem to advertise the purchase price anymore. They advertise the lease payment. "Lower payments and I get a new car in 2-3 years? Where do I sign up?" There's no incentive to even hang onto something that works because it's not hard to get and not hard to replace.
How many people use Open Source software but never donate money, time, skill, or other resources to maintaining and improving it? 98%? 99%? More? And some of those who do contribute to a project do so because the value of the project is in the money it saves, but that particular value only exists when the other options are costly. If all software was free, then those who contribute money or resources for that reason evaporate.
3: "To say that the GPL depends on copyright is like saying that reading depends on scribes."
I'd disagree. I believe it's like saying that being a carnivore depends on the existence of meat. Carnivores eat meat, and if there was no meat, they'd have to adapt to vegetarianism or die out.
If there was no copyright, the GPL as it exists would have to adapt or die, just like a carnivore denied meat. If sharing was absolute, there would be no need to enforce sharing. And if it adapted, would it still be the GPL as we know it? Life adapted to changing circumstances, but I don't call myself Monkey 3.0 or T-Rex V18 or Trillobyte Extreme Edition. I call myself human, because though I share DNA with all of those beasts, I'm a different enough beast to warrant my own unique designation.
But both absolute sharing and absolute restriction have drawbacks and contribute to their own unique ills.
I agree with you that fundamental changes to copyright terms and restrictions are needed. I probably don't agree with you on the specific changes, their scope, or their merits. But no law will ever be perfect because it's hard to get three people to agree on where to eat, much less get hundreds of legislators to agree on legislation that impacts millions of people and billion-dollar industries.
Eventually those three people agree on pizza. It's not really what anyone particularly wants, but it's something all of them can live with.
As long as we can keep talking and engaging each other in discussion without promising a Jihad if we go to Red Lobster, there's a chance that we can work out something that isn't what we necessarily wanted, but is a hell of a lot better than what exists, and like pizza, is something we can all live with.
I endorse reform, not abolition, because I find the extremes on both sides of the issue distasteful and pernicious in their own ways. We can strike the terms "copyright" and "intellectual property" and call it "inventor's privilege" or "creator's due", but when someone makes something of value, they should have the choice of whether to sell it or give it away and not have that choice taken from them by someone who wants their creation for a lower price unless eminent domain can be proved (as in the recent case of Brazil forcing a license on a drug company).
And that's my response.
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[second submission, my first had some formatting problems]
Thanks for your response, Greg.
"Copyright can be replaced with licensing."
(I don't think I quite said that; I'm not sure what it would mean.)
What I proposed was laws that would make it possible for an author to insist that derivative works come with as much freedom as the original. So if it's software, you can insist that derivative works provide source code as well. (And with most other kinds of works, the work itself is the source code, so the issue doesn't even come up.) Remember, there's no traditional copyright here: if there are no restrictions on sharing something you already have, most kinds of sharing don't need to be enforced, because there's no power to take them away.
So I'm not sure what you meant about "you'd need laws that prohibit me from removing your license". Since that's already true today, how is it an argument for or against change? I could strip a license today and you'd have to find some way to detect it and hold me responsible. But anyway, I think you're still thinking in terms of licenses that restrict who can copy. In a world where the possibility of that kind of license has been removed, this question doesn't make much sense: "...if I thought your license unfair and removed it, would the people I distributed the license-free version of your software to be obligated by a license they never saw or would the genie just be out of the bottle?" I mean, people could just copy the work if they wanted to. (I assume you're not talking about attribution issues; nobody's arguing in favor of plagiarism here, obviously.) And if it were a software work, and recipients wanted the source code, but someone along the chain of copiers had removed the condition that source code has to come with the work, well, very likely that would get noticed, using the exact same mechanisms by which it gets noticed today. So to the degree that this problem exists, it exists already in today's world, and is not made any worse by what I'm proposing.
"[copying] does diminish value. And that's not just the value to me as the creator who profits from controlling availability. It diminishes the value to society.
Now that seems counterintuitive. You might argue that free stuff has a great value to society because it enables X, Y, and Z. But as a general tenet of human behavior, one can say that if it takes no effort to acquire it, we don't value it. If something is free or too easy to acquire, we take it for granted, squander it, waste it."
I don't think this really holds up. Much music is in the public domain, in fact most of my favorite pieces. Does that mean I don't value them? Oxygen is completely free — you can use as much of it as you need, anytime, without paying a cent. Does this mean you don't value it?
The argument that value requires scarcity only holds up for very, very narrow definitions of "value", I think, and not the definitions I've been using.
I wrote "To say that the GPL depends on copyright is like saying that reading depends on scribes." and you responded:
"I'd disagree. I believe it's like saying that being a carnivore depends on the existence of meat. Carnivores eat meat, and if there was no meat, they'd have to adapt to vegetarianism or die out.
If there was no copyright, the GPL as it exists would have to adapt or die, just like a carnivore denied meat. If sharing was absolute, there would be no need to enforce sharing. [...]"
Maybe I should have written "To say that open source depends on copyright is like saying that reading depends on scribes." Then my point would have been clearer. What I meant was that the main effects of the GPL can be achieved without copyright.
But even using your language above: if sharing were "absolute", as you say, then open source would flourish naturally, wouldn't it? If there's no need to enforce sharing, that doesn't mean the end of open source, it just means that open source has an easier time than ever before!
Your original argument was that in the absence of copyright, sharing wouldn't be absolute (instead, people would find ways to hoard, using DRM, whatever). In response, I said that there are ways to prevent hoarding without also offering restrictions on copying. So when you now say that "...if sharing was absolute, there would be no need to enforce sharing...", I'm happy to agree, but note that that's a premise you originally denied was possible in the first
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I endorse reform, not abolition, because I find the extremes on both sides of the issue distasteful and pernicious in their own ways. We can strike the terms "copyright" and "intellectual property" and call it "inventor's privilege" or "creator's due", but when someone makes something of value, they should have the choice of whether to sell it or give it away and not have that choice taken from them by someone who wants their creation for a lower price unless eminent domain can be proved (as in the recent case of Brazil forcing a license on a drug company).
Labeling a position "extreme" doesn't mean anything, does it? It's an attempt to move the position out of bounds, to make one's own position look reasonable through the fallacy of the "appeal to moderation". My "extreme" position, that anyone can copy whatever they can get their hands on, was the norm for most of human history, before the passage of some relatively recent laws regulating the printing industry. And there was a time, in the nineteenth century, when it was "extreme" to be adamantly opposed to slavery. I'm not saying copyright is comparable to slavery, I'm just pointing out, by example, that calling a position "extreme" has no connection to the position's merits.
"...when someone makes something of value, they should have the choice of whether to sell it or give it away and not have that choice taken from them by someone who wants their creation for a lower price unless eminent domain can be proved..."
If "choice" is good, then how about when someone sees something of value, they should be able to choose to copy it? We had that choice for millennia, after all. Why is what you advocate "choice", when its chief effect is remove the choice of others to copy and adapt? The freedom to take away others' freedoms is not a very useful freedom for society to support, IMHO.
Anyway, at this point, you're basically making the standard argument for copyright, which is fine (QuestionCopyright.org exists mainly to provide a refutation to that argument). But what you're saying here isn't really connected to your original point about open source allegedly depending on copyright. What I'm saying is that, regardless of whether copyright itself is justified or not, open source needn't depend on it; if copyright went away, open source could continue just fine.
I'm decidedly with Karl on this. Respectfully Greg I don't think your point that 'copying diminishes value' is fully thought through. Moreover, what do we miss out on by having copyright? A lot. Consider the DJ's who popularize music through their mixed tapes and get arrested for unauthorized copying. That is the tip of the iceberg in terms of creativity stifled by copyright.
Think even more broadly here for a moment: if copyright was eliminated then some business models would suffer - for example some heavily produced and promoted artists and movies would either have a different funding regime in place, i.e. embedded advertising (product placement) or maybe in some cases wouldn't get made at all. Is that so bad if, as another consequence of getting rid of copyright, the net number and quality of musical works, and movie type dramas, were increased? I think there is potential in striking down copyright to stimulate much more creativity, and in a net sense more meaningfully promote culture.
[...] So why am I bringing this up? Well, there was a recent debate that started on Slashdot between two individuals on the question of whether the GPL depends on copyright in order to oppose copyright. The debate started with with a post arguing that the GPL depends on copyright. Someone wrote a responsedisagreeing with that position, and the original poster responded to that. The debate is interesting, mostly because it’s one issue that I actually find myself in agreement with the GPL advocate! [...]
"Is that so bad if, as another consequence of getting rid of copyright, the net number and quality of musical works, and movie type dramas, were increased?"
It might be worth digging into history for some information about the number and type of works pre-copyright and post-copyright. I suspect that you'll find that there's an awful lot more original work been made since - and some of that, I'd venture to suggest, is because people can't simply repurpose work without paying the creator anything.
Ian, is there an unspoken assumption in your response that "more original" equals "better"? Some of the best works of art are unabashedly derivative...