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User Journal

Journal Journal: Randite says: "CTEA good, Lessig bad"

What do you know, randite Amy Peikoff thinks the CTEA is good and Lessig is a horrible Marxist.

People on Politech are having a lot of fun with this one.

Anyway, time to Shrug Atlas:

In 1998 Congress, pursuant to its Constitutional power to determine the duration of federal copyright protection, passed a law extending the term of that protection by 20 years. This law brought United States copyright protection in line with that already afforded in Europe.

That's half right and half wrong.

Before 1995, the duration of copyright in Europe ranged from life+50 to life+80.

The duration was harmonised in the internal market in 1995 by the 93/98/EEC directive. The duration was set to life+70 for authors of literary and artistic works and 50 years for corporately owned phonograms and films.

The US copyright term extention act of 1998 set the duration to life+70 for authors and 95 years for corporate authors.

It is true that the duration for authors that hold the copyright to their own works were harmonised by the CTEA, but it created an even larger gap than before for works where the copyright is held by corporations.

If you look at the lobbyists in favour of the CTEA, it is obvious that most of them wanted a retroactive extention for corporately owned works. In Disney terms, preventing The Mouse from falling into the public domain.

In addition, as the average life expectancy in the United States now exceeds 70 years, the law brings copyright protection in line with the legal vehicle for the posthumous control of tangible property--the law of testamentary trusts, which bases the term of such control on a human lifespan.

That is an apples and oranges comparision. Unlike rights to tangible property, copyright (and related rights like patents) are not based on a natural right. They are instead derived from the copyright clause of the US constitution which in its entirety reads: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Thus, Congress can only extend the duration and scope of copyright law if it "promotes the progress of science and useful arts". Also, the duration of the copyright must be for "limited times".

The CTEA is the last in a long row of legislation that has retroactively extended copyright from 14+14 years to life+70/95 years.

Lessig would have the Supreme Court extend this perversion of free speech to mean: free of any need to pay for the borrowing of someone else's greatest achievement: original thought. Or worse: free of any need sufficiently to digest that original thought so as to be able to put it into one's own words. Appropriating and parroting the creation of others is now, according to Lessig, "free speech."

That isn't Lessig's argument at all. His argument is that that both the 1st amendment and the copyright clause in the constitution set a limit on Congress' power to extend the duration of copyright. For the last half of this century, due to the repeated extentions, the duration of copyright has for practical purposes become unlimited. He wants the supreme court to tell Congress that they can't continue to extend the duration if they want to stay within the constitutional limit of "limited times".

Also, creation is not something that is done in a vacuum. Disney and other corporations have benefited greatly by creating adaptions of works in the public domain (Snow White, Hunchback of Notre Dame, Alice in Wonderland, to give a few examples) or making fair use of copyrighted works (Steamboat Willie was a parody of Buster Keaton's Steamboat Bill). These are the same corporations that today are lobbying to extend copyright and limit fair use, so that noone else can do the same with their works. Copyright is supposed to be a tit-for-tat mutually beneficial contract between creators and the public, and the CTEA is one of the more obvious examples of how this balance is being tilted in favour of corporations.

"Only 2 percent of works protected by copyright," they go on, "create a regular stream of income for their creators." Translation: only a small minority of "non-little" people will be hurt by repealing this law, so why not do it?

If you create a work that "conveys an important artistic or philosophic message", is it not in your interest that the future generations can get access to it? Remember, if the 2% figure above is correct, there is a 49 to 1 chance that the work won't be reprinted by the publisher. How does it promote your quest for giving people important insight in eternal questions if the last copy in existence of your work decompose on a dusty shelf years before the people who want to preserve it are allowed to because of the latest extention of copyright law?

I'd recommend that you talk to people trying to preserve old movies - there is not sufficient commercial incentive for movie studios to do the work, and those that want to are blocked by copyright law. Movies from the 1920s and 30s are getting close to disintegrating from physical decay and the likely result of the 20 year extention is that it will become impossible to restore many of them when they enter the public domain.

in addition, he wants to be sure that the integrity of the work is protected against mutilation as long as possible.

Then you should start lobbying for Congress to change copyright law to mirror the european (and Berne copyright treaties') concept of "moral rights".

If those in the "digital liberties set" plan to have a field day with others' works of creative genius--bastardizing them into whatever fragments they find appealing, adding any distorting content they choose, then blasting the results all over the Internet--what is the point of trying to convey to the world one's own vital viewpoint?

I think you are exaggerating the dangers here.

My experience with efforts like Project Gutenberg that digitise public domain works, is that they try very hard to provide accurate and true copies of the original. After all, why should they spend time and money on preserving something if they don't care about the work?

User Journal

Journal Journal: The Mouse and the Constitution

What do you know, Lessig finally had his day in front of the Ancient Ones.

Lessig's Post-argument blog.
Eugene Volokh thinks that the law will be struck down 6-3.

As Adina Levin says: "I hope that the decision in the spring comes out in favor of Eldred and the public domain. Either way (as I wrote on the comments page of Prof. Lessig's blog), this is just one battle in a long war, with battlefields in the courts and congress and the press and the public.

If the Justices understand the problem, and Lessig felt they did, that's one step forward. If technologists understand the problem, that's a step forward. If a few politicians start to understand the problem, that's another step forward. If the mainstream press starts to understand the problem, another step forward."

User Journal

Journal Journal: "The Free Software Lunch" and GPL fear-mongering.

What do you know, an economist that is doing consultant work for MS thinks that the GPL is a very bad idea

As per tradition, any true Open Source advocate worth his salt must immediately write a rebuttal ;-)

Thus is the following created:

"But some programmers with a taste for the counterculture or an aversion to corporate life have gone their own way. They have chosen to write software collectively for no pay and then publish the source code and allow anyone to use and modify it for free. In some cases, altruism meshes neatly with more self-interested motives - the wish to impress fellow geeks and maybe even win a great consulting job with a Silicon Valley behemoth."

Ignoring the ad hominem for the moment - there are a lot of reasons for why someone decides to develop and release Free Software/Open Source Software. Altruism is only one of them.

To give one example: IBM supports Linux and spend money to make sure that it works well on their lines of hardware. Why? Because it increases sales of their hardware and services, and makes IBM less dependant of Microsoft.

"For one thing, some governments (Taiwan) openly favor open source software in their procurement policies as a means of distancing themselves from giant (usually American) software makers."

Well, if Open Source - due to the special licensing terms - provide features that governments see that they need (say - for example the carte blanche right to tailor and modify, or ensure that it is possible in the future to read data stored in file formats used by current software), what's the problem?

Like you, I have a problem with governments requiring open source software. However, if governments set up a list of features they need and open source software happens to fit the bill better than commercial software I honestly don't see the problem.

"The Pentagon is flirting with open source, justifying its infatuation by the as-yet-unproved assertion that open source software is less vulnerable to hackers because responsible volunteers correct errors before the cyber-vandals find them."

I have not read any Pentagon policy papers, so i don't know why they assert that open source software is more secure. I have been following the general discussion regarding open/closed software and security in some detail.

There doesn't seem to be a real consensus yet in the computer security community regarding whether there is any inherent quality that automatically makes an open source program more secure than an equivalent closed source program. However, open source does provide two features that closed source does not have:

- The possibility for independent review of the source code.
- The ability to fix the problem yourself instead of relying on a single vendor.

If you are a large entity like Pentagon, those two features might be reason enough to prefer an open source solution.

"Under the GPL, created by the non-profit Free Software Foundation, anyone is free to use and to modify software. But unlike other open source licenses, any modifications must also be licensed under the GPL."

That is true.

"Thus if Sun Microsystems were to borrow a bit of code from a GPL program developed under a government grant for its proprietary Solaris computer operating system, Sun would have to distribute Solaris under the GPL or stop using the "borrowed" code."

That is either a gross misunderstanding of the GPL or a blatant lie.

The GPL license is 'viral' in the sense that it infects code that is based on GPL'ed code or is linked with GPL'ed code.

Solaris is a huge system consisting of lots and lots of discrete components. If Sun includes GPL licensed code in one of the components, only that component would be 'infected'.

It is the normal modus operandi of large software companies to license code from other companies for use in their products. In that regard, the GPL is just another license agreement. Their lawyers should be perfectly capable of looking at the GPL and see when and where GPL'ed code is suitable in their products, and what risks are contained in the use of the GPL.

The fact that many companies are using GPLed components in their products today would imply that they find the risks and the requirements in the licence acceptable.

"This "viral" property effectively bars commercial software makers from incorporating ideas from GPL software - which is precisely what the ideologues at the Free Software Foundation had in mind."

Also a misunderstanding or a bald faced exaggeration of the scope of the license.

The GPL is a copyright license. It sets forth the requirements for using copyrighted works licensed under the GPL.

Copyright protects an expression. Ideas are outside the scope of copyright. Let's say that I write a crime novel about a butler killing the cook in the library of an old english mansion. I have the copyright of that particular expression of the idea, but I can't stop others from writing traditional british crime stories.

Microsoft - or anyone else - is free to read GPL software, note the ideas contained therein and write their own based on those ideas. However, Microsoft is not free to verbatim copy (or 'pirate' or 'borrow') the source code.

"But allowing taxpayers' money to be used to promote the GPL through NASA or the Sandia National Laboratories - both of which have developed software licensed under the GPL - is another story entirely."

See above. Commercial software developers are not denied access to ideas created by government funded development. With the GPL, the ideas are there - free for anyone to look at.

It sounds to me that the resistance to the GPL is not founded on the fear that ideas created at NASA or SNL can not be used by commercial companies, but that the commercial companies have to write their own software to implement those ideas instead of just taking source code.

"Imagine where we'd be if pharmaceutical companies had not been allowed to use government research, and the development of drugs based on that research had been left to non-profits or government agencies. Thousands of people would be dead who are now alive, courtesy of some of today's "miracle" drugs."

You are ignoring some very important economic differences between the software business and pharma.

1) Labs and tools for drug development are expensive.
2) Getting a drug approved for human consumption is a very costly process, and is something that would be impossible to do for a non-profit run by a group of bio engineers in their spare time.
3) Drugs tend to be expensive to produce.
4) Drugs tend to be protected by patent law, not copyright.

1) Sufficient equipment for software development is in the $1000-$2000 range.
2) It is perfectly possible for a group of CS engineers to codevelop a piece of software in their spare time.
3) Once a piece of software has been written, it can be duplicated at very low cost.
4) Software tends to be protected by copyright law (and to some extent - trade secret and patent law).

You also have the very important factor that software tends to "stand on the shoulders of giants". The software at the bottom - like operating systems or networking protocols - create an infrastructure that other software can use. You often have situations where creating a cheap and ubiquous infrastructure create entirely new markets for software and services running on top. We are actually using one of the best examples of this right now - the Internet infrastructure was largely created by government funds and open source software.

"The General Public License amounts to an insidious attack on a hybrid system of public and private enterprise for developing software that has served us well. Washington has no business joining the free software conspiracy."

The GPL is a counter reaction to the commercial software companies sucking dry the Public Domain. Microsoft receives copyright protection for their binary software without having to show the source so that other people can get access to the ideas - which is essentially a breach of the tit for tat idea/expression dichotomy in copyright law.

The GPL doesn't deny anyone access to the ideas. In fact, within the limitations of license and copyright law, the GPL tries very hard to make sure that the ideas embodied in a piece of software will always be available to everyone.

Let's return to the core of your argument - that government should not fund the development of GPL software.

I actually agree with you. It should not be the government's task to decide on one model of software development over an other. If the GPL can not survive by the merits of the model and the software produced by it, it should die. It would be far better to release government developed software as Public Domain thus making it usable for both open source and proprietary instead of encumbering it with licenses that only benefit one party.

Calling the GPL a free software conspiracy is disingenuous when anyone who has ever read the license knows that the very preamble contains a candid and up-front description of the goals of the license.

I would contend that it is easier to understand the goals and implications of the GPL than it is to understand the implications of clicking 'Accept' on a modern End User License Agreement.

User Journal

Journal Journal: Are artists starting to get the point? 1

What do you know, Bon Jovi has realised that fans is not the cause of Napster - it is the solution.

And then a great comment made my day. (The only thing I disagree with is the steep entry price of $25, but [s]he hits bullseye by showing that dedicated fans will pay through the nose if they feel they get something back.)

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