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Stallman/Stanco: A Dialogue on Copyright Law and Free/Open Source Software (Part 3)

"My fight is defeating proprietary"

  • July 17, 2000
  • By Tony Stanco

This is day 3 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.)

DAY 3

>>>>>>>>>>>>>>

Subj:   Re: licensing article
Date:   6/2/00
From:   RMS
To:     tony stanco

[Stanco]:

>    All law is a matter of opinion. "Law" is what present lawyers/judges 
>say it    is, because it is a social construct without objective reality.

[Stallman]:

With all respect, you're completely mistaken there.  Law in the US is
what the Supreme Court says it is, based on the Constitution and the
legislation.  The Supreme Court has been pretty clear about these
issues.  I have given you references.

[Stanco]:

>    The Constitution is just words on paper, until it's interpreted
>    by the current legal generation and the interpretation changes to
>    suit their views and prejudices.

[Stallman]:

The lawyers you have spoken with do not decide on the interpretation.
They can only advocate one.  Courts, and above them the Supreme Court,
interpret the law.

These lawyers have the right to disagree with the US legal system;
they can honestly say they think it is wrong.  I do that sometimes
myself.  But if they misrepresent where the system stands, that is
lying.  These lawyers are lying to you.

The reason they lie, telling you that copyright is a natural right, is
that they profit from spreading falsehoods about the point.  Please do
not help their lie campaign by saying their views define truth.

[Stanco]:

>    And at this point, there are more of them than of us. I don't
>    think that there is any point in trying to deny that.

[Stallman]:

If you think I am denying that, you have misunderstood my point
completely.  I believe you that the majority of copyright lawyers say
that copyright is a natural right.  And if they say this is simply
their view of ethics, they are entitled to have that view.  But if
they claim to be stating the position of the US legal system, they are
lying.  Where the US legal system stands is not just a matter of
opinion; it is a matter of historical fact.

The fact that the majority of copyright lawyers try to mislead the
public about the US legal system's philosophy of copyright is an
important point against them.  We have to use this point.

>>>>>>>>>>>>>>>>

Subj:   Re: licensing article
Date:   6/3/00
From:   tony stanco
To:     RMS


[Stanco]:

What law is is a very difficult issue. It appears you think that it has an
independent existence outside of what a majority of elite lawyers say it is
at any one time. You say that it is what the Supreme Court says it is. But
the Supreme Court is a group of elite lawyers. You also mention legislation,
but the legislatures are mostly elite lawyers too. Both groups come from the
ranks of elite lawyers in elite law firms and from elite law schools.

Also you say that the Supreme Court is pretty clear about the issues. But
the Supreme Court is not a monolith. It's composition has changed over its
history and usually the decisions are split with majority and minority
views. Also, I think the case you cited was an old case. At any rate, the
opinions of the Court are seldom clear. Their opinions throughout its
history should be seen more as a gestalt and try to discern over-arching
theories and principles as a whole. Fragments of decisions are temporally
and logically situationally contingent and therefore often inconsistent.
Property rights and capitalism are over-arching principles in the cases, I
think.

Law is not like physical reality. You can't say "look here it is," like you
can with a chair, and have everyone agree. It's more like an election or
stock market (i.e., social constructs), where you need to poll the players
(those involved in the mechanism) to know where it is. And where it is today
is not necessarily where it is tomorrow.

Therefore, when you say you agree that a majority of current elite lawyers
say that copyright is a natural right, it basically resolves the argument
under this thesis, which is a thesis I believe reflects what law is. (Like
everything with lawyers, there are different views.)

At any rate, this really isn't my fight. My fight is defeating proprietary,
because it threatens the freedoms and liberties of the world's citizens.
Picking a fight with lawyers doesn't further that goal. In fact, it hinders
it, because lawyers have to be brought on board in seeing that proprietary
is harmful to ultimately defeat it. Saying that property rights or copyright
rights generally are wrong isn't going to do that. It's better to say that
software is different and therefore an exception. We should make it clear to
them that GPL works better than the existing software system, because it
frees developers. Attacking copyright and property rights in general is
over-inclusive, I think, and will garner unnecessary opposition.

Lawyers are starting to come on board. Witness the anti-trust case. People
are seeing that there are problems with proprietary. But saying that the
problem is copyright and property laws is not going to attract them, it will
repel them. Those ideas are too well entrenched.

Also, if you remember back to our discussions [in another series of emails 
on how to defeat proprietary software] and an article I sent you [now 
published at www.Boardwatch.com/mag/2000/may/bwm86.html] , I think that 
property rights are important. Without personal property, people are 
enslaved either by nature (Africa) or by others (China, former Soviet 
Union). Personal property is not the problem, it enhances liberties and 
freedoms.

People who are against personal property are generally intellectual elites
that live in a country (US or Europe) owning too much property. People in 90
per cent of the world would like to have some property so they can join the
world economy and not be exploited by it.

Intellectual elites (Marxists) have sometime said that the problem with
property is that it is not shared equitably. Again, these elites come from
countries that generally have plenty, so sharing the property communally has
some superficial attraction. But they forget that there is not enough
property for the rest of the world to share. They also misunderstand the
teleological game that giving property rights plays. Before consumption,
there must be production. Giving personal property and having a capitalist
system is the best system to create more property. More property produced
means that more property can be consumed. That is why in an economic age
(when there is still scarcity) society puts up with property rights-- it
gives incentives to those who can produce more to do so. When there is
enough property (so there is no more scarcity), the game will stop and we
will enter the post economic age.

We are not there yet. 90 per cent of the world is still in poverty (poverty
means simply not having property). Creating the commons now will only
distribute the poverty to the other 10 per cent and hinder more production,
therefore the game must go on. (Look at the stagnation of property creation
in the former Soviet Union for 3 generations). At some point, and it may be
this century, enough property will be produced to stop the game, we will be
post-economic, and property will then be shared.

When will we not have scarcity? When we build machines that will produce 
more
property themselves and eliminate the scarcity. Technology will do it. With
education and technology, there will be a geometric rise producing more
technology and property, because of feedback loops.

We still need more property to get the people out of poverty in the other 90
per cent. That 90 per cent with education and with property (and not
artificially hindered by trade barriers) will create the geometric
progression.

More property not less is important. If you remember back again[ previous 
emails on defeating proprietary], I proposed
per line royalties for software. Why? Because it will create the property
for 13 year olds in India and China so they can join the world economy and
add another progression towards the post-economic. When that 13 year old has
property, he can feed and educate his kids and his kids can do the same, so
we get the geometric rise.

As Socrates showed, math and logic are inherently human activities that are
visible even in the very young without much education (or need for other
resources to produce). As such, even poor countries can produce it. Software
is applied logic. The Internet allows that 13 year old to plug into the
world economy and produce something the world values. This is not a trivial
thing. Otherwise, the poor countries have to wait for multinationals to
build plants and exploit that 13 year old for menial labor. Paying that 13
year old a world price for his software is a superior solution.

When the free community was against royalties as compensation, I asked you
whether you were against salaries and stock options for developers (these
are other forms of property). You said you were not. Salaries and stock
options will do the same thing for the 13 year olds in India/China that I
wanted to do with royalties (though not as efficiently-- but good enough).

Compensated free software, therefore, will move us towards the post
economic, will help third world countries, and will give developers the
freedoms you want. These free developers can then also protect the world
citizens against malicious code that with machines could enslave them. As I
worry, code is law but with a non human police force.

This is my fight. Everything else helps this or hinders it and I treat it
accordingly.

If we succeed in this fight, your legacy is secured, because we will use
GPL, which I think incorporates the principles you stand for. GPL is your
great contribution to world freedom and world progress. Trust in it. I think
you dissipate too much of your energies on tangential issues.
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