In the proprietary production world, what matters about a copyright is who owns it. In the free production world, however, who owns a copyright is relatively unimportant. What matters is what license it is offered under. There is a very simple rule of thumb about the best license to use: use a “free, copyleft license”. Such licenses provide the ideal balance of freedom versus limitations, and projects that use them are overwhelmingly more successful than ones that don’t (both those with more free “non-copyleft” licenses and those with more restrictive “non-free” licenses).

The Culture of Innovation

The heritage of open source development stems largely from academia, where intellectual freedom is as fundamental an ideal as “democracy” or “freedom” is to most people throughout the industrialized West. It is this view of the concept which leads to the ideologically-based “Free Software Movement” and its preference for emphasizing user freedoms over developer process.

While this approach is probably not so good as a method of persuasion, since it relies on cultural norms that do not apply broadly across all human societies or even across professions, it has a special importance to commons-based production: it is a core belief of the people who do the most work.

Whether you share this belief system or not, you cross it at your peril. Many people regard these ideas as moral imperatives and one of the first rules of the freedom game is learning not to offend the very people who are likely to be your most important asset in success. You cannot play the game halfheartedly, hoping to create a business advantage through appropriating publicly-created work, while holding back your own.

Intellectual Freedom

Intellectual Freedom is a fundamental principle that underlies many of the beliefs shared by knowledge workers, particularly in academia, but also in a much broader area of complex engineering and scientific disciplines. Although it is often couched in ideological terms, the real point is that secrets are wasteful. Scientists learn from very early in their training the faults of suppressing information, perhaps most iconically in the person of Galileo Galilei, who published evidence supporting the Copernican theory that the planets orbited the Sun (primarily his observations of Jupiter’s satellites), and was proscribed and forced to recant his beliefs by the Catholic Church.

Scientists learn from very early in their training the faults of suppressing information

Scientists view Galileo in heroic terms, and the Church’s resistance to the Copernican theory was ultimately futile. Without the Copernican theory, we’d have never made it to the Moon. So it is fitting that Galileo’s famous hammer and feather experiment was actually demonstrated by Cmdr. Dave Scott at the Apollo 15 landing site on the Moon.

Commander Dave Scott demonstrated Galileo’s “hammer and feather” experiment on the surface of the Moon during the Apollo 15 mission (Credit: NASA/PD)

When scientists are free to share information and regard it as a duty, they fuel the process of science, which needs to check and recheck assumptions to reach an ever more accurate understanding of the world. Engineers and inventors also share information, so as to attain ever more refined improvements to the inventions that they develop. Software developers use this freedom to find bugs and refine their software as well as to improve upon what has been written before. All of them are using it to avoid wasting time re-inventing what has gone before.

Intellectual Property

The utilitarian argument for intellectual property is fairly simple: producing information costs time and effort of those who do the work, just as much as any other kind of production. Yet, unlike other forms of production, information can be freely copied, so, in a completely free market, the monetary value per copy of an information product tends to be very nearly zero.

Intellectual property systems make it easier to recoup the development costs of information products via artificially inflating the cost of sales to cover the initial investment. This mimics the natural behavior material products, where barriers to entry such as manufacturing tooling costs give the first entry into the market a chance to recoup its development costs so as to make a profit.

Intellectual property systems make it easier to recoup the development costs of information products via artificially inflating the cost of sales to cover the initial investment

Of course, there are problems with the Intellectual Property idea. Perhaps the most obvious is that, in the limit, it’s the just like the medieval guild system that locked Europe into a dark age for nearly a thousand years!

Suppressing the flow of information damns us to repeat the same mistakes over and over again, retarding technological progress and resulting in massive wastes of human capital. Only when inventors, authors, engineers, and scientists are able to build upon each others’ works can civilization reap the renaissance rewards of a booming technological and intellectually creative society. Thus, even if and when intellectual property law is needed, it must always exist in tension against the long range benefits of preserving intellectual freedom.

An unnecessary evil?

Most serious creators of intellectual works in the United States know about the limited constitutional basis for Intellectual Property, but they still view it as a “necessary evil”: a fictive arrangement we have to adopt in order to create intellectual works within our capitalist society. The free market, they argue, demands that we respect Intellectual Property as a tradable good, so that we can profit by producing intellectual works.

At the very least, we know that a free market society can produce intellectual works without the need to resort to the restrictiveness of conventional intellectual property

The experiences of free software and free culture, however, have empirically disproved this idea. At the very least, we know that a free market society can produce intellectual works without the need to resort to the restrictiveness of conventional intellectual property. Free-licensing, which intentionally releases such works from these confines, produces more value from the free exchange of information than it loses to lost licensing sales and free rider problems.

In his essays, The Cathedral and the Bazaar, Homesteading the Noosphere, and The Magic Cauldron, Eric S. Raymond illustrates the strategies that commercial entities and amateur developers have employed to defeat the conventional wisdom that locked-down “IP” is essential to business success. I highly recommend reading these essays yourself.

Why use a copyleft?

There is one serious problem with all this freedom. If everyone is free to do what they want with the work, then one thing they can do with it in a society which has strong intellectual property laws is to claim it for themselves, appropriating all of the effort that has gone into the project.

Over 80% of the software projects hosted on the Sourceforge free software project incubator use a copyleft license of some type

The actual degree to which this happens may not be that great, and the “damage” to the contributors may not seem so large, but the fear of this kind of disparity is large enough to chill contributions to a project. Consider for example, how much smaller is the community surrounding the various “BSD Unix” distributions than the one surrounding “GNU/Linux”.

Why is this?

One need look no further than Apple Computer to see the answer. Apple’s “OS X” operating system, which is used commercially on modern Apple Macintosh computers, is built on top of “Darwin” a particular distribution of BSD Unix. OS X contains many, many improvements on Unix, and tools to make it easier to use. But of course, OS X is proprietary.

People contribute to free projects under the promise that they will stay free. Copyleft offers that promise

This can happen because BSD has no copyleft. The fear of it happening, and thus robbing contributors of the quid pro quo of commons based production, is sufficient to reduce development on BSD Unix platforms. They simply do not interest as many developers.

On the other hand, GNU/Linux, which is mostly licensed under the GNU GPL or LGPL licenses, and therefore protected by copyleft limitations from this kind of hijacking of community effort, continues to boom in popularity.

In other words, people contribute to free projects under the promise that they will stay free. Copyleft offers that promise. Therefore copyleft is very important to the morale of contributors and to the sustainable interest of the community of developers.

“Copying” and “use”

The term “use”, when applied to intellectual works, can be treacherously ambiguous. After all, “copying” a work, “distributing” it, or “deriving” from that work, are clearly ways of “using” the work in the English vernacular. Yet theorists talking about copyright or software freedom generally do not consider these uses to be included in the word “use”.

The term “use”, when applied to intellectual works, can be treacherously ambiguous

Three of the four major definitions of software freedom that exist in the community include the requirement that a work must be “free to use for any purpose”, and yet they also allow copyleft requirements to ensure that a work remains free by placing terms on “copying” and “distributing” it. These definitions include the Debian Free Software Guidelines from the Debian Project, the Open Source Definition from the Open Source Initiative, and the Definition of Free Cultural Works from the Freedom Defined wiki project).

The Free Software Definition from the Free Software Foundation and its GNU Project, is less demanding: it says only that you must have the freedom only to “run the program for any purpose”. That’s less vague, but of course, it also only makes sense for an executable program, which is why the other definitions opted for a broader expression.

The Free Software Definition introduced the idea that there are four fundamental freedoms needed for information works (traditionally numbered from 0 to 3, to reflect their origins among computer programmers!). It originally specified these in very software-oriented ways. This version of the “Four Freedoms” is from FreedomDefined.org’s definition of “Free Cultural Works”

This has always been contradictory if “copying”, “distribution”, and “derivation” are to be regarded as “use”. The true ambiguities of this definition, however, only came to light with the introduction of “digital rights management” (DRM) and “technological protection measures” (TPM). These are both euphemistic names for encryption technologies designed to interfere with users’ ability to copy and decode digital intellectual works.

Some licenses do not permit encrypted distribution whenever it would interfere with users’ legal rights under the license

It was argued by some that the right to distribute a work in such an encrypted file format, even when no key is made available to allow users to unlock the work, was a valid “use” (i.e. not an act of “copying” or “distribution”, which might be subject to copyleft restrictions). Some licenses, particularly those from the Creative Commons organization, do not permit encrypted distribution whenever it would interfere with users’ legal rights under the license. A strong lobby was formed to try to convert Creative Commons’ language over to an alternate form of protection against DRM-laden files, which relied on a requirement to provide a non-encrypted distribution of any file which was distributed in DRM format (an idea which seems logical based on the success of the GPL’s requirement of a “source code” distribution along with any binary distribution).

However, some observers, notably Greg London, noticed an exploit which showed how this form of “protection” could fail to protect users’ freedom to use and/or derive from encrypted works in a useful way. As a result, the Creative Commons licenses retain the anti-DRM language, although the issue remains somewhat controversial.

Source: http://www.freesoftwaremagazine.com/books/mihrfc/rule_1_hold_on_loosely

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