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IP vs. Open Source

(From Judgment Day for the GPL?):

Professor Robert P. Merges of the Berkeley Law School noted some of the problems in his "The End of Friction? Property Rights and Contract in the 'Newtonian' World of On-Line Commerce" (12 Berkeley Tech. L.J. 115), in which he describes the GPL as "informal (i.e., not legally enforceable) restrictions on digital content."

The reference above is old, but nothing has changed since then. Surprising as it may be to members of the Linux community, the GPL may be worthless. More recently, SCO has announced another challenge to the GPL. GNU lawyers say this challenge is ridiculous, but we need to remember that law is not always straightforward and logical.

It's often said (of the United States) that we are "a nation of laws". Of course that's not really true: we are supposedly governed by law, but in reality we are governed by interpretation of law. That's not a bad thing; in fact it's absolutely necessary: very few things are so cut and dried that they never need interpretation.

However, it does mean that laws can be ignored, or interpreted differently than was orginally intended. Sometimes that's to the good also: circumstances change, and it is sometimes easier to just slide the interpretation a little bit to this side or the other. It's no different anywhere else in the world, though whose interpretation is important may be quite different, and in some places, "law" might be just one man's daily opinions.

But even in countries that are more or less democratic, it also means that sometimes there is raw abuse. Sometimes the law is plain, but people's desires conflict, and at such times we will simply do whatever it is we have to do to go on doing whatever it is we want to do.

I've have said, for example, that a A Supreme Court Justice will be convinced of what he wants to be convinced of. Nothing more, and nothing less. Don't interpret that as impugning selfish motives necessarily: I simply mean that they will rule in accordance with their beliefs, with their own interpretations. Those beliefs can be lofty and admirable, and far removed from petty political arguments. But it is still belief driven. That is also not to say that judges can't rule against their own personal beliefs when they have a higher belief in some other principle. I don't mean to imply that the interpretation of law is always petty or selfish, though certainly it can be at times. I'm just stating that it does always come down to interpretation, and that even the things that seem least arguable can turn out differently than we might expect.

I don't want to get overly political here, but I can point out a few very plain examples of that (and of course there are more): our treatment of American Indians, our treatment of religious expression by government, U.S. gun laws, and our more recent actions toward suspected terrorists. Again, I don't want to seem like I'm provincially focusing on the U.S.: these are just easy examples and are probably things most of the world is at least vaguely familar with.

  • The U.S. has a Constitution that calls for the separation of Church and State. There are deep divisions in this country as to what that means and what it should mean, but on the face of it, you wouldn't think that plastering our coinage with "In God We Trust" would be appropriate. In fact, our initial coinage had no such mottos, and never would use representations of real people either (although the phrase did not exist then, the U.S. Founding Fathers were very concerned about "cult of personality", were opposed to monarchs, state religion, etc.), That was later changed: in 1864, we added "In God We Trust" to a coin for the first time, and in 1909 the Lincoln cent was the first to have a real person on it. Regardless of how you personally feel about religious expression on our coins, the fact is that the courts do recognize the potential conflict with the Constitution. However, they interpret this as minor and not anything that needs to be separated. Some of us (and I'm in that very small group) feel it is very wrong, but the majority of people either like it or feel that it is harmless. As much as our Constititution exists exactly to protect the majority from forcing their will upon minorities, in this case we do exactly that.

  • The United States treatment of American Indians has been, and remains to this day, scandalous. We've lied, cheated, stolen, and engaged in deliberate genocide. Even some who felt that was wrong (Sherman, for example) viewed it as inevitable that the "savages" had to make way for civilization. Our mistreatment continues even today, yet as a nation, we turn a mostly blind eye. I grew up next to an "Indian burial ground". A path ran by our house to it, and by some treaty, Indians of some tribe had the right to use that path to visit the burial site. Had any actually done so, they would have found a four foot fence at the end, and on the other side of that fence, on "sacred" ground, our neighbor grew vegetables. Our courts find excuses for not righting these wrongs, and surely will continue to do so, mostly because there is just no way that any just compensation could be made without destroying the nation. No doubt no one would be any better off if such were done, but it still is quite plain that we bend truth to leave things as they are.

  • More recently, we ship terrorists to Egypt for interrogation because U.S. laws don't allow torture. It is tremendous dishonesty to do that, and certainly violates the spirit of the law, yet we interpret that as allowable. You can certainly argue that "the ends justify the means", but it still plainly remains that sending someone off to be tortured elsewhere is substantially no different than performing the torture yourself. I doubt that anyone would be successful in convincing a court of that, but it is a definite example of interpretation allowing you to do what the law apparently forbids.

  • While the U.S. Constitution is very specific about the right of the citizenry to bear arms, every year public sentiment against that grows stronger. Arguments have been made that this right is satisfied if we have police forces and the like: very definitely not what the framers had in mind, but that has been seriously advanced as a way to outlaw private ownership without an amendment. Would the courts accept that? Perhaps not today, but tomorrow they might.


My point is not to argue American politics, or even to express my opinions on the examples given. Reasonable people can disagree on each of those. I merely wish to set the stage for the statement I first made: law is a matter of interpretation. What those in power want, those in power get. One way or another: by flagrant disregard, by creative interpretation, or by making new law to counteract the old, whatever it takes. That's simple enough, and I think we all understand that at some level. What isn't simple is who's got the power. That is a constantly shifting landscape, and is often defined by inattention: for example, most people not particularly wanting religious mottos on coinage, but not seeing the issue as important or harmful. Truly polarizing issues (like abortion) are rare; many things that are matters of great emotion to a few people are simply off the radar for the majority. This is exactly why "special interest groups" can be so successful even without capturing public opinion: indifference is as good as support.

And that, long winded as I was in getting here, is my concern for the GPL. Although lawyers may argue one way or another, and insist that this or that is "frivolous", the fact is that there are powerful people who are threatened by the GPL and Open Source in general. These are, of course, the people who make money from software by way of patents, copyrights, and trade secrets: Intellectual Property. Free software has already damaged them to some extent, and as its popularity grows, they are all the more at risk.

Companies like Microsoft are not going to stand idly by while their markets are eroded away. No one expects that, but what I think too many in the Linux arena miss is that the fight will not be open, fair, and above board. As is always the case in business and politics (and this is both), there will be in-fighting, back-stabbing, backroom deals, arm twisting, favors promised, bribes given and taken, and, if necessary, attempted legislative remedies (and, in typical American fashion, probably snuck in as a rider on some other bill).

Now pause for a moment and contemplate this: is there any way, other than legislation, that Microsoft et al. can compete with Open Source over the long term? Think about that for a minute or two. Unless you are a Microsoft bigot, I think it is very obvious that they have to lose this battle. There are possibly some other ways they might win, but most are either chancey or involve deliberate sabotage by design of hardware (for example, the Microsoft BIOS). Legislation seems like the best hope, and I'm sure that hasn't escaped Microsoft's notice. I've suggested that operating systems might be licensed, but something as simple as damaging the GPL, rendering it impotent, would in itself do tremendous damage to Linux and Open Source. If the provisions that keep it open can be ignored, how many people will continue sharing? You might argue that it wouldn't have to change anything, but I think you'd be wrong. Closed projects based on Open Source would spring up, sapping its lifeblood. It might survive, but it might not.

There's also the possibility, which I would hope is extremely remote, that legislation could actually make it illegal, or add taxes that would level the playing field. If you think that there'd be little support for that, you are of course correct, but remember that inattention can be just as useful as support, and by and large, most folk are neither well informed on these issues or care about them much. It's not too hard to imagine the rationale for taxes: we do exactly that to protect American firms from foreign competitors. Conceptually, there's no difference; a threat to industry is met by judicious taxation.

None of this has happened, of course. As of this writing, the GPL has yet to go to court. The Free Software Foundation has challenged a few folks who didn't follow the GPL, but so far, not one has chosen to fight. For a while, it looked like the Cisco/Linksys case might be the first to do that, but more recently it looks like that too will be settled out of court. Nor has Microsoft yet made any overt moves against the GPL (ignoring the SCO/Microsoft conspiracy theorists here).

We'll have to wait to hear what song the fat lady will be singing. I'd hope it is a song we like.


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