February 17, 2019

Stallman/Stanco: A Dialogue on Copyright Law and Free/Open Source Software (Part 1)

"The philosopher fighting the good fight"

  • July 13, 2000
  • By Tony Stanco


This is the first day of an email dialogue with Richard Stallman on the philosophy of copyright that will be published over nine days on LinuxPlanet. This dialogue arose from comments that RMS was kind enough to give me on a two-part article on software licensing that appeared on LinuxProgramming recently. (Check out the articles at LinuxProgramming: Software Licenses and Traditional Copyright Law and Looking at the General Public License and Open-Source Licenses.)


Subj:   Re: licensing article
Date:   5/31/00
From:   RMS
To:     tony stanco


Could you tell me what this is?  Is it a draft of some new article?

[last section of the licensing article, Part I]:

>   According to Richard Stallman the traditional rules discussed
>   above have the rights backwards, because they assume that the
>   natural rights belong to the author of a work instead of to the
>   public. So in his opinion, copyright law does not give rights, but
>   rather takes them away, in that the public no longer has the right
>   to copy, modify or distribute a work of another.


This is not my opinion--this is the fact.  This is how the US legal
system considers the issue.  Take a look at the Supreme Court decision
in the Bonito Boats case.

To present this as merely my opinion is to misrepresent the history of
copyright.  If you want to help, please don't score an "own goal."

[from the licensing article, Part I]:

>   While this would seem like heresy to a traditional lawyer,


A well-trained and scrupulous lawyer knows that this is orthodoxy.
Many copyright lawyers choose to misrepresent the situation to the
public, because it serves their interest.


Subj:   Re: licensing article
Date:   5/31/00
From:   tony stanco
To:     RMS


>Could you tell me what this is?  Is it a draft of some new article?


No, this is the same article.

In a previous email, you said "To introduce a discussion of the GNU GPL
after the previous text is totally misleading." I agreed that the two parts
needed a better transition, so I broke the first part and the free/open
license part into two articles. The paragraph I sent you was the end of the
first part discussing general copyright law, and serves as a bridge to the
second part discussing the principles of free software and open source
licensing in Part II.


>  This is how the US legal
>  system considers the issue.


I talked to some friends who are intellectual property lawyers and I think
the way I present the rules is the more traditional view of the matter,
currently. Anyway, Congress sees it in traditional ways and so do the
majority of practicing lawyers.

I don't disagree with your view of the matter, but I think I need to present
it as an enlightened, but dissenting view to the currently held majority
view. I think Lessig agrees with you, too. So you are definitely in good
company. But there is a controversy going on for which view should be the

Without the contra-position, a reader (and this is a friendly free/open
publication) would not understand the controversy. The us vs. them of the
thing. I'm not sure why you are concerned that this will hurt. I put you in
the enlightened philosopher role fighting the good fight against the

This article is preaching to the choir, and I just want to give them the
traditional rules so they know what they are up against. Also, the article
as a whole shows your intelligence by using traditional rules to achieve
their negation and establish your copyright paradigm through their
instrumentality. No small feat. Ingenious in fact.

If the audience were more hostile, I would spin it differently. But these
are friends and we can trust our friends to understand. They are on the same

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