Some thoughts on software copyright licenses


Sloum wrote recently[1] about searching for a software license that

disallows commercial use of the software, and whether or not such a

license could be considered a free software license. This post is

not really a response to sloum, as such (I've never heard of such

a license before), but rather, since the topic has come up in the

phlogosphere it's prompted me to write a few thoughts I've had for

quite a long time about the question of software copyright.

I've long thought it kind of odd that it is widely acepted that

software authors have a legal right to determine what people

can and can't do with their software. If the designer and/or

manufacturer of a set of carpentry tools, or a soldering iron, or a

sewing machine attempted to restrict in any way the kind of items

someone could manufacture with those tools, I think most people

would instinctively think they were trying to exercise a level of

control they were not entitled to at all. It would be just the

same if the maker of a pen or a camera tried to dictate what kind

of text you could write or what kind of photos you could take.

Yet with software, nobody thinks it odd at all that the copyright

license can impose seemingly arbitrary restrictions.

In fact, I think it's kind of odd that software is copyrightable

at all. I think software is perhaps totally unique amongst

all other kinds of copyrightable things, in terms of what it

fundamentally is. Source code is very different from text, music,

photographs, videos, etc. because it's a thing which functions

in some way. A software library is in many ways much closer to the

carpenter's tools or other examples above than to anything else

you can copyright. Copyright is not supposed to protect ideas,

only verbatim expressions of them. You can't copyright a sewing

machine - you could copyright the blueprints, but not the machine

itself or its design. I don't think this distinction necessarily

holds well for copyright. Source code is in some ways like a

blueprint, but in some ways very different in that it's a kind of

blueprint you can very quickly and easily and cheaply and precisely

transform into the actual functioning productive thing. I have to

wonder how well the legal/political types who first declared that

software was copyrightable understood what they were saying.

I think it's very curious that software licenses like the GPL are

generally speaking extremely popular amongst a group of people

with whom copyright as a principle when applied to just about

anything else is often quite unpopular. Plenty of people object

quite strongly on philosophical grounds to the idea of copyright,

or at least argue quite strongly on practical grounds for things

like drastically reduced duration of copyright (see here[2] for

some links/discussion). I think there are compelling arguments to

be made here, but it seems to me like not many people making thos

arguments appreciate the fact that if, say, copyright were limited

to a five year term (as advocated by e.g. the Swedish Pirate Party),

then licenses like the GPL would "wear off" after five years, and

old GPL software would essentially become public domain software.

Being simultaneously in favour of "copyleft" and strong copyright

reform (or even copyright abolition) seems like a somewhat confused

stance to me.

This is one of the reasons why, in general, I like to use very

permissive licenses like the BSD license where I can. Even if

I think that sharing source code and permitting the use and

distribution of modifications are fine and upstanding values -

and make no mistake, I do - I feel kind of uncomfortable trying

to enforce those values on anybody else, even if the law gives me

that power. If you take some code I've written and add a little

bit more on top, that little bit of code is yours. You wrote

it, after all. I can certainly encourage you to share it with the

world, and I can certainly express disappointment if you don't, but

to me that seems about the limit of what's appropriate. I quite

like the sentiment expressed in the OpenBSD 4.3 release song:

"freedom means you cannot dictate to anyone".

I understand not everybody will agree with this, and that's fine.

There is a point of view from which having access to the source code

of software you use is a natural, unalienable right, and thus the

GPL is not forcing people to grant that access but rather preventing

them from using the illegitimate power of copyright to withold it.

If you believed this, and you advocated for copyright reform or

abolition and, simultaneously, some entirely new legislation which

gave legal recognition to this natural right, then I guess you

would be in a position that was totally internally consistent.

[1] gopher://circumlunar.space:70/0/~sloum/phlog/20190318-21.txt

[2] https://en.wikipedia.org/wiki/Opposition_to_copyright

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