Copy-left, -right and –centre

November 7, 2007

On 29 June 2007, GNU General Public License version 3 was released, at long last upgrading version 2 which was released some 16 years earlier. The ethos of the GNU is to give freedoms to users of software in contradistinction to the demands of commercial software manufacturers who restrict uses in order to exploit the software commercially, preventing access to source codes, and thus preventing users from changing or sharing commercial software programs. 

Like version 2, the long awaited upgrade incorporates the four freedoms identified by the original creator Richard Stallman as: 1. the freedom to run the licensed program as the user wishes 2. the freedom to replicate and distribute the program  3. the freedom to study and change the source code  4. the freedom to distribute changed copies of the program. In practical terms this necessitates that the original GNU licence remains unaltered, and that in the event that the program is changed, no warranties are attributed to the authors of earlier versions for those changes.  

The effect of this approach, the ‘copyleft’ approach, has been to create a large and loyal virtual community dedicated to the use of ‘free’ software – a community within which an almost religious fervour exists, holding the belief that the availability of ‘free’ software is a moral right and that attempts by commercial software houses to charge for commercial programmes is a moral wrong – supporting the crusade of the Free Software Foundation against the commercial infidel. 

The Scottish Society for Computers and Law was greatly privileged to invite Professor Eben Moglen, General Counsel of the Free Software Foundation and Chairman of the Software Freedom Law Center, to give its annual lecture on 26 June 2007 – three days before the release of the upgrade. The lecture he gave was eloquent, informative and provocative and the event was very well attended by a large audience of software professionals, lawyers and the public. The issues raised were many and the event itself was followed by a dinner where discussions continued until a late hour. 

At the heart of Professor Moglen’s speech lay the contention that the software that enables modern commercial endeavour is a language analogous to mathematics. This is a surprising contention and requires closer analysis.  

The modern business environment is a global one. Through the medium of information technology, anyone can have a global Internet presence. My message, good or bad, can be shared with the entire world. Equally, the hinterland for my goods and services is a global one. For all I know, provided that I can overcome the vicissitudes of contract, payment and delivery, I can sell my goods and services to anyone in the globe. But just as information technology is a globally enabling technology so it can also act as a limiting factor. The commercial software houses know and exploit this by charging serious money for enabling software programs. Their justification for these costs is that such software needs to be developed and so is the expression of creative work in which effort, skill and labour has been expended and for which payment must be due. But must software development be understood in this way? Does such an approach properly state the issues? Is it fair and reasonable? 

Professor Moglen asks whether research in mathematics is not similar. Here, effort, skill and labour are expended. Someone has to bear the costs. But strangely, the users of mathematics are not required to pay licence fees before they make use of mathematical ideas. Professor Moglen puts his case with eloquence: ‘Mathematics is primarily a language for ensuring reliable results in human social activity. I say this, notwithstanding the fact that some mathematicians will object that mathematics is primarily a device for creating beauty, which is of course true, pursued by its greatest devotees at its highest level of skill and daring. But the majority of mathematics is not a thing of beauty in itself, or at any rate not a novel thing of beauty in itself, it’s a boat. Or a house, or a pyramid, or a tomb, or in fact almost any other activity of human material collaboration, enabled by mathematics in the sense that mathematics as human beings have learned to use it enabled them to achieve results that were reliable, reproducible, and certain. Economic and safety-regarding activity in the material universe collaborating among people is extraordinarily difficult to achieve without adequate quantities of mathematics, so I ask you to imagine briefly a world in which arithmetic has become property.’ Imagine if we had to pay royalties every time we used a right angle or drew a straight line. The answer is that mathematical knowledge is too valuable, too important to prevent access to it and use of it by the public. Mathematical knowledge, even though its discovery involves costs, must be understood as public knowledge. Charging for it would be scandalous.  

Should we not take the same approach to the software enabling technologies of the modern age? Is charging copyright fees a justifiable enterprise? Or do the benefits of such software to global business not far outweigh the interests of commercial software houses? 

Of course, the analogy between software development and mathematics research can be attacked. Like any analogy there are proportionate similarities and dissimilarities. Mathematics is arguably an activity of much greater generality than that of software design: software enables technology to perform identifiable functions and is limited in its development to that single outcome. Mathematics on the other hand is an activity conducted for its own sake, often with no practical outcome in mind. Frequently, the application of a mathematical discovery lies unrealised for many years, maybe even generations. The publication of a mathematical theory is no guarantee that it will ever be used for commercial gain. But the fact that both mathematical theories and software programs can often provide the answer to crucial social needs suggests that, at a practical level, the analogy is sound, at least once the original costs of development have been defrayed – even if a certain level of profit is charged too. For then the marginal costs of production of new copies of the program have become effectively zero. In these circumstances any insistence that a further substantial charge be made for the program is oppressive and the issue becomes a moral one.  Professor Moglen puts the question thus:   ‘Why is it ever moral to deprive people of that which they could have for nothing and which they wish to have, and you already have made? If you could feed everyone by baking one loaf of bread, and pressing a button, what would be the moral case for permitting the price of bread to be higher than the poorest hungry person could pay?’ 

The result is the birth of the Free Software Movement and Richard Stallman’s famous comment:  ‘It’s unethical to deprive people of information evidently available to them about the artefacts of digital society with which they are daily in contact – it’s evidently immoral to deprive them of knowledge; you’ve given the knowledge to the computer sitting next to them. They’re using it – the knowledge is playing a potentially determinative role in their lives, you’ve already delivered it to them – all you haven’t done is to deliver them the ability to know.’ 

This is an indictment of the current law of copyright, both in the United States of America and also here in Europe. Have we lost touch with the rationale for copyright as related to software production? Should we be reassessing the balance between the interests of creative persons and the needs of society as whole for the knowledge which enables our commercial reality? Perhaps there is even an argument that software developers should be prevented from obtaining anything more than a mere token profit from their endeavours. Should we be lobbying the European Parliament for a change or exception to copyright law? 

This is to misconstrue practical necessity – for the issue is in the end a practical one. We need the speed of response that commercial software developers bring. Without the promise of the current rewards, it may be, for all we know, that technology and software would not have developed as far and as fast as it has. Some commercial organisations will always benefit from the purchase of custom solutions which give them the edge – that is how some businesses excel.  

But at the same time, the commercial needs of the majority still need to be filled, perhaps in the wake of these giants. And why should user communities not stand upon the shoulders of each other to gain the same high viewpoint as the giant? It is here that the GNU project and its virtual community come into their own. For here an answer to the moral quandary is given. The operating system and software now available under the new licence provides substance to fill this moral gap and restore the balance.  The work was not easy but those with vision pursued it to fruition: 

‘We worked very hard for almost two years to produce a first discussion draft of GPL3, and there was a community; many communities, in fact. But their convocation for the purpose of legislation was a unique event. Every other week for the past 18 months, we’ve convened a conference call of 21 of the largest IT vendors in the world – companies whose names are familiar in every household and business. Working in teams that varied from one person from some of the companies to five or six in others. Carefully studying every single word, commenting as though their lives depended upon it – as for some of the businesses they did – on every detail of the licence’s functioning in the global IT economy. We also convened, every other week, a conversation among 24 of the largest users of software in the world – banks and brokerages, government agencies, and the lawyers who acquire software on their behalf. … By their selflessness in helping others learn, and by their extraordinary wit and intellect, they have produced miracles out of thin air for all of us to use for years.’ 

The end result, the issue of GPL version three, claimed Professor Moglen, is not merely an important advance in software development, nor merely a day in the history of IT, but a stand for moral rectitude and a victory in the software freedom crusade for a proper balance of interests to be achieved.  

We were privileged in Edinburgh to hear Professor Moglen talk with such eloquence and fervour, and we look forward with interest to hearing on a future occasion whether the proponents of commercial software can argue a similarly convincing case for their model of software delivery.

Duncan Spiers is an Advocate, a member of the board of SSCL and lectures at Napier University, Edinburgh with interests in intellectual property and information law.