The Digital Age: Copyright vs. Copyleft

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From Humanitarian-FOSS Project Development Site

Contents

Introduction

The purpose of copyright laws was initially “‘An Act for the Encouragement of Learning, by Vest-ing the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned’”[1]. The author of a work had a certain number of years during which he or she was entitled to copyright protections, and after that, the work entered public domain, allowing anyone to use or copy it. Today, copyright is serving as a means to pay owners of works and leave the public with all sorts of rules to follow—not as a means to foster culture growth. Copyrights are allowing owners to get money for their work for an absurd amount of time: 70 years after the author’s death [2]. However, if the purpose of copyright is to encourage authors to write more, what good will the money do them after they have been dead for decades? Copyright laws are no longer protecting the general public, and the open source movement has found the answer. In this digital age, copyright has no place: software and digital media cannot abide by such strict copyright laws, and their creators have turned instead to open source. Copyright should be left to printed media, as it was intended to be, and open source standards should apply to digital works.

Copyright

The US Copyright Act of 1976 grants rights to the owner to “make reproductions, prepare derivative works, distribute copies, make public performances and publicly display controlled works” [3]. In today’s society, it is hard to argue that money is not the top incentive. As some will argue, “while free reproduction, performance and display may benefit users,” it can take away the due rewards for such invested efforts, and lead to a lack of incentive to produce, which in turn would decrease works for the purpose of culture [4]. However, many find sheer joy in collaborating on a demanding project. Many enjoy writing programs and even entirely new operating systems—such as GNU/Linux—without the incentive of money; the incentive of producing something innovative and with free access was enough.

Fair Use

There are exceptions to the copyright laws, as with any laws, and this includes that such an exception “applies when the use serves a valuable social purpose—quotation, classroom copies, criticism, journalism, parody” [5]. Left purposefully vague in wording, the fair use exception allows for some breathing room of consumers. The following is from the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, which “cites examples of activities that courts have regarded as fair use:

  • ‘quotation of excerpts in a review or criticism for purposes of illustration or comment;
  • quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations;
  • use in a parody of some of the content of the work parodied;
  • summary of an address or article, with brief quotations, in a news report;
  • reproduction by a library of a portion of a work to replace part of a damaged copy;
  • reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  • reproduction of a work in legislative or judicial proceedings or reports;
  • incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported’“ [6].

The fair use exception covers, for the most part, usage in education and government, and minor quotations. Instead of being more specific in its terms, the copyright office advises a) not to use any copyrighted material; b) consult an attorney if there is any doubt. Though this exception provides some leeway, it is still restricting. As the Internet grows and more technologies evolve, more gray areas evolve. Fan fiction, which is a term used for fiction written by admirers of an already-published work—creating alternate stories about the characters, song “mashups”, which are songs that combine two already-written music works, and self-edited movies can be difficult to govern. Fan fiction writers, while they must be cautious to avoid infringing upon copyright protection, are hardly a threat to the original owners. “Song ‘mashups’ and edited movies are more problematic. Without careful definition of legal practices, a ‘mashup’ could involve a large sampling of the core of one song, with beginning and end material taken from a second,” and movies would have the same problem: the question then arises of limiting the percentage of a song to be taken [7].

Digital Rights Management (DRM)

Companies have begun to enlist the help of DRM to avoid such misuse of their products. DRM, or digital rights management, “entails the operation of a control system that can monitor, regulate and price each subsequent use of a digital file that contains media content or software” [8]. The price of certain works can determine or limit the number of times they are used, the length of access to them, full or partial uses, and the number of and location of other computers that can access the file. Apple already does this for music with its iTunes, which allows each user to regulate up to 5 computers that can access their music over a shared network, and with their iTunes Online Store, which charges $0.99 per song. Online photography companies are now completely disallowing pictures to even have a “copy” option.

One way to control the general public’s law abidance is to remove options from it. “Manufacturers of DVD players do not offer Record buttons because they are prohibited from doing so by a license agreement with the movie industry” [9]. DRM has evolved into a complicated means to prevent infringement before it even happens. Section 1201(a)(2) of the Digital Millennium Copyright Act of 1998 “disallows the manufacture, import, offering, provision, or other trafficking of devices that could be used for the purpose of circumventing access protection” [10]. But such high demands could actually hinder the incentive of consumers to buy anything. The 4 academies of the United States—the National Academy of Sciences, the National Academy of Engineering, the Institute of Medicine, and the National Research Council—all feared that “digital protection may lead to loss of historic records, the deliberate non-sharing of content, constraints on audience activities and access times, and general difficulties that may result as digital presentation of information comes to replace offline production” [11]. The fees associated with DRM in regards to consumers might make such products unpopular, but some feel that this is a small price to pay, because “by stopping resale or redistribution of content from one market to another, access protection and digital rights management widen consumer choice and promote product diversity” [12].

DRM includes encryption as one of its foremost techniques, and is moving on to the creation of devices that have programmed into them a set of rules that they must follow. There is a “set of arrangements, sometimes called a ‘trusted system’ or ‘trusted computing’ in which the receiving device not only decodes the encrypted content, but also obeys a set of rules about the content’s subsequent reproduction and redistribution of it, ensuring that such functions are made impossible for the average user” [13]. Such a set of rules, however, would not allow for the current exceptions allowed by copyright laws. How is a device to know if the user is a professor, student, or “pirate”, or what kind of intention the user has upon distribution of the file? In such a system, there is no room for civil disobedience or challenging these laws, or even for a professor to play a song clip as a demonstration for his or her class. The programming of these rules and devices is complicated. Essentially, each device would ideally have some sort of internal billing system to keep track of how many times a file is copied, or “lent out,” provided every other device connected to it also followed the same regulations. “As long as the interconnected system of devices that handle the digital content and its accompanying instructions were all designed to comprehend and obey the same instructional language, these copyright rules could be infinitely and precisely specified for uses, conditions, and even different users” [14]. This idea is not what is best for the public good, but what is best for owners.

Owners, such as Microsoft, benefit greatly from selling its products. But Microsoft’s market dominance creates fear, because other third-party companies will likely follow them so that their products are compatible with Microsoft formats. “The threat Microsoft made in the late days of the Napster dispute—that they might redesign their Windows Media Player (an application built into their Windows OS and widely used) so it would artificially degrade the sound quality of mp3 files—revealed the kind of power they have to technologically regulate behavior in systematic ways” [15]. DRM, in some senses, is just another preemptive tactic—similar to parental restrictions on the Internet and TV, and governors on older cars. However, there are special cases that apply to everything, even within programming languages. For example, “killing someone in self-defense is still murder, but it is murder that, in the eyes of the law and after deliberation in a courtroom, can under particular circumstances be excused. Such an exception would cease to exist were the act of murder somehow preemptible in all cases” [16]. To use DRM is to treat every citizen as a potential criminal. This does not motivate such citizens to create; it motivates such citizens to be scared, leading to a lack of, not encouragement of, learning.

Open Source/Copyleft

The digital age has brought with it innovations as well as complications. The original copyright idea may have worked before its arrival, but copyright as it is currently applied to programs and digital media restricts users more than ever. Open Source software fixes this while generating more enthusiasm for writing programs. Open Source software is not a free-for-all concept. It is a well-organized set of rules that govern how a piece of software is to be used, and such rules allow for user rights and privileges to be given, not taken away as in commercial copyright laws. The Open Source Definition, written by Bruce Perens, who was involved with Linux and the creation of the Open Source Initiative, has nine provisions and a list of licenses that conform to it. The provisions are given here:

  • 1.Free Distribution—including sale, but no fee/royalty required for sale
  • 2.Source Code—must be included, and allowed distribution in both compiled form and source code
  • 3.Derived Works—must be allowed
  • 4.Integrity of the Author’s Source Code—‘”The license may restrict source code from being distributed in modified form only if the license allows the distribution of ‘patch files’ with the source code for the purpose of modifying the program at build time.”’
  • 5.No Discrimination Against Persons or Groups
  • 6.No Discrimination Against Fields of Endeavor
  • 7.Distribution of License—rights must apply to all and not require another license
  • 8.License Must Not Be Specific to a Product—‘“must not depend on the program’s being part of a particular software distribution.”’
  • 9.License Must Not Contaminate Other Software—can’t place restrictions on other software being distributed w/ licensed software

[17].

Licenses

One of the original Open Source licenses was the General Public License (GPL) written by Richard Stallman, a well-known advocate of Open Source and Copyleft software and creator of the Free Software Foundation in 1985 [18]. The preamble of the GPL includes: ‘“The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software—to make sure the software is free for all of its users’” [19]. The GPL includes the provision that any derivative works must also be distributed with the GPL license—this is the notion of copyleft. However, this requirement raised concern among commercial developers interested in Open Source, because “incorporating any code written under the GPL into another program will require that the second program in which the code is incorporated be licensed under the GPL” [20]. This led to the creation of the Library General Public License, or Lesser General Public License, which essentially removes the copyleft requirement of the GPL.

By now, there are many different licenses that conform to the Open Source Definition (OSD). In the 1970s and 1980s, the University of California at Berkeley began Unix (which spurred Stallman’s beginnings of “Gnu’s Not Unix”, or GNU), which was based on the same ideas as Stallman, but excluded the copyleft rights being extended to derivative works—something Stallman is a huge advocate of [21]. This license, known as the BSD (Berkeley Software Distribution) license, became popular with commercial developers. In 1998, Netscape released a browser as Open Source, but wrote its own license, still conforming to the OSD. There is a “tendency of commercial developers moving into Open Source to want to rewrite standard Open Source licenses to ‘improve them’ in order to fill in gaps, deal with specific issues or add additional protections” [22]. Netscape’s license became known as the Mozilla Public License—which is popular among commercial developers, but not among the Open Source community—because it allows commercial licensing of derivative works.

GNU

Richard Stallman wanted more freedoms for program users. Copyright takes away so many rights, and copyleft gives them. He thus began GNU. The “GNU Project was conceived in 1983 as a way of bringing back the cooperative spirit that prevailed in the computing community in earlier days—to make cooperation possible once again by removing the obstacles to cooperation imposed by the owners of proprietary software” [23]. The first order of business had to be a free operating system, for no one can use a computer without an operating system—and GNU later linked up with Linux to produce the GNU/Linux system, which currently has an estimation of over ten million users [24]. Stallman explains copyleft as something that “uses copyright law, but flips it over to serve the opposite of its usual purpose: instead of a means of privatizing software, it becomes a means of keeping software free” [25]. To send this point home, at the bottom of one page of the GNU website is a notice that states: “Copyright © 1998, 2001, 2002, 2005, 2006, 2007 Richard Stallman. Verbatim copying and distribution of this entire article is permitted in any medium without royalty provided this notice is preserved.”

The freedoms allowed by Open Source are beneficial to everyone. Copyright works okay for printed books—for which it was initially designed—but not for programs. “Extracting money from users of a program by restricting their use of it is destructive because the restrictions reduce the amount and the ways that the program can be used. This reduces the amount of wealth that humanity derives from the program. When there is a deliberate choice to restrict, the harmful consequences are deliberate destruction” [26]. Copyright was intended to cultivate culture and society, but the restrictive terms it now entails prevent that culture from being produced. Enforcing copyright on software does not make programming attractive; it makes it confusing and frustrating. So programmers have turned instead to Open Source. Sourceforge.net, a website which “provides free hosting to Open Source software development projects with a centralized resource for managing projects, issues, communications, and code” has 175,647 registered Open Source projects, and 1,838,211 registered users [27]. It supports Open Source because Collaboration within the Open Source community (developers and end users) promotes a higher standard of quality, and helps to ensure the long-term viability of both data and applications,” and cites reasons for the growing popularity of such products as “low cost, high value, quality and reliability, security, increased freedom and flexibility (both hardware and software,) and adherence to open standards” [28].

Motive

Most of the contributors to OSS (Open Source Software) are volunteers; meaning money is not a motive. “One need only look at the World Wide Web or at sites like YouTube, MySpace, Wikipedia, or Sourceforge to see that financial compensation is not the only, or perhaps even the most compelling, incentive to produce” [29]. Distributed computing is one example of this—like SETI@home. “The project is a scientific experiment that uses Internet-connected computers in a Search for Extraterrestrial Intelligence (SETI)” [30]. In a poll asking participants (about 117,894 at the time) about their motivation to work on SETI@home, 58.33% said to Find ET for the good of humanity, a mere 3.08% said “to become famous”, 16.92% to keep their computer productive, 2.29% to “Get my name on a top 100 list on the web site,” and 19.37 said “Other.” Some of the answers in the “Other” category included “Support a worthwhile cause and participate in the largest parallel processing effort; find ET and to be part of an exceptional distributed computing project; find ET for good of humanity and prove the net power; find ET for humanity; helping out the Scientific Community.” [31]. None wanted money; most participants just wanted to help society.

Conclusion

In a democracy, every person should have access to ideas and innovations in order to be well-informed citizens and voters. Restricting the flow of information by regulating exactly when, why, and how that information is being used restricts the minds of individuals who have the right to know what is going on in the world around them. Copyright is fine for printed works—for which it was originally designed—but with the expansion of Internet capabilities and innovative programs, Open Source provides a more free-flowing and productive model for computer users. “Open source software is seen as a highly functional adaptation of copyright law that may enhance cooperative production by reducing transaction costs and eliminating the threat of expropriation. The outcome is a system that greatly increases producer incentives to create in an accommodative and open-ended fashion” [32]. Copyright laws have become too restrictive and complicated. Allowing more freedoms to users in the digital domain allows for more freedom to design and program, leading to a more diverse culture. OSS can lead to better programming standards, profit for commercial companies by selling complementary services, and the personal enjoyment and increased reputation of the programmers themselves. Copyright is fine for books because people typically use books either by reading and enjoying them, or by quoting excerpts from them for scholarly purposes, which is covered under the fair use exception. Software is used in a more direct manner, and people use the code from other programs to create their own. The use of software is far more widespread, and necessary for the advancement of more programs. Thus,copyright should be left to printed mediums, and not to software. Digital media should be governed by Open Source ideals, allowing for more freedoms and more advances in society.

References

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