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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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Copyfight

« Defining Open Access | Main | WIPO - Notes from Day One »

June 7, 2004

Defining "Copyfighter"

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Posted by

We've done a bit of that before in this forum, but ILAW alum Clancy Ratliff and others have since contributed quite a bit more to the discusssion. Here's a quick overview for those of you who missed the action:


Walking the Walk: Copyfighters and Their Weblog Software: "Now, I don't want this to sound like some group admonishment/harrassment. I'm sure everyone has a good reason why they use non open source software. But that mindset is one of the difficulties of the copyfight: convincing the non-copyfighter that taking the extra effort to use open source or publish open content is worth the effort in helping to build a free culture. So, I hope copyfighters will see that in publishing their discourse on the web that it's important not just to talk the talk, but also to walk the walk."


Defining "Copyfighter": "I define it rather broadly: To me, a copyfighter is someone who engages in conversations on authorship and intellectual property...Moreover, copyfighters look at our current copyright model -- automatic copyright, life + 70 years as soon as the content is put into a fixed medium -- and express some kind of qualm about it; they think it should change in some way."


Open Source Party Line: "Those who've studied the radical tradition might acknowledge that the first sign a cultural or political movement has become genuinely widespread is its politicization in the development of a party line...I might suggest that drawing a party line -- telling people that if they're in favor of open source, they have to use open source software -- is a fine way to get people to say, 'OK. I guess I'm not in favor of open source, then.'"


Alienating Potential Allies: "Yes, I think that generally, people should use open source software and should allow derivative works of their content if possible, but not because someone's a poseur if he or she doesn't do those things, or that it's an all-or-nothing matter."

Comments (23) + TrackBacks (0) | Category: Misc.


COMMENTS

1. cypherpunk on June 7, 2004 3:01 PM writes...

So someone who thinks seriously about copyright, and who concludes that the world would be better served by even longer and stronger copyright protection, would be a copyfighter, by your definition?

Mark Twain wrote, "I am quite unable to guess why there should be a limit at all to the possession of the product of a man's labor." A copyfighter, in his time?

Permalink to Comment

2. Donna Wentworth on June 7, 2004 3:08 PM writes...

To whom are you addressing the question: Clancy or me?

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3. Clancy on June 7, 2004 3:58 PM writes...

Ah, good point, cypherpunk. That's not what I meant, of course.

FTR, I want to say here, as I've said on my blog too, I never meant to offend anyone. If I'd known it would, I never would have posted in the first place.

Permalink to Comment

4. cypherpunk on June 7, 2004 4:58 PM writes...

I wouldn't worry too much about offending people. You can't post anything interesting and meaty without someone, somewhere, taking offense.

As for copyfighters, maybe it does make sense to use that term for people who want to strengthen IP: they're fighting the copyfight, but they happen to be fighting on the other side.

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5. Brad Hutchings on June 7, 2004 5:18 PM writes...

Ok, this is totally off-the-wall, but I am curious... Are most copyfighters cat people or might there be a dog person in the group? I think this dichotomy could explain a lot. Ever watch Animal Cops on Animal Planet when they discover a home with hundreds of one animal or another? The cat houses are chaotic and run by the cats, with no need for the people and a desire to just have them go away. The dog houses, by contrast, are a bunch of needy creatures, hungry for human caring and affection, protective of the den, but eager to please any human who would genuinely want to be with them or help them.

As to open source software, gift economy, etc. That's sooooo last millenium. "Open source" is just a market tactic now. Making it a purity test is culturally the same as say, expecting people in your movement to eschew diamond engagement rings in favor of home-made friendship bracelets (presumably made with home-grown hemp). The commercial world provides a lot of very nice things, sometimes at very good price for the quality and functionality offered.

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6. charlie on June 7, 2004 8:41 PM writes...

As we now know, Movable Type's "free" software licensing was/is a marketing tactic, although there were apparently many who didn't realize that when they began using MT. Compare that to the GNU GPL which is as much a principle about how IP should be made available to the public commons as it is a license defining terms of use. Certainly, the term "Open Source" was developed as a marketing tactic to get away from the "free software" label, but that doesn't change the fact that open source is about certain freedoms that are based on the same principles behind why this weblog, and many others, carry CC licenses.

And, since I started this meme in the first place, let me say that to me, demonstrated use of open source software on weblogs is not a purity/litmus test of the copyfighter (whatever that term may mean), but rather an opportunity for those that believe that open source plays an important part in the copyfight to put a public face on their support. Many people may use open source applications in their day-to-day computer work. But using it as the publishing platform for writing about the copyfight is an opportunity to demonstrate publicly this usage, to set an example. And, of course, it can show that open source software available in the public commons can offer the needed "quality and functionality" in a web publishing platform.

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7. Brad Hutchings on June 7, 2004 9:25 PM writes...

Charlie,

I don't care if you started the meme. Why do you thiink it's yours and that you have a right to direct discussion of it? Free culture pal.

And no, open source is not about freedom from having to pay the developer for his work. A product that I make available "open source" is done so because the customers of the product can use the source code as a basis to build their own products and having source code facilitates enhancement and debugging in context. I am not offering a gift any more than MySQL A/B, Sleepycat, or Trolltech are. Even the GPL (as silly and painfully moralistic as it is) is a marketing tool. Don't get caught up in thinking it's anything more.

Permalink to Comment

8. Joseph Pietro Riolo on June 7, 2004 9:41 PM writes...


I think that people overlook the strong relationship between the open source software and the copyright. Without copyright, the open source software could not exist (only the public domain software exists). (It is possible to have open source software through contract but it works only between parties who agree to the contract.) The longer the copyright lasts, the longer the open source software will last.

It is meaningless to encourage copyfighters to use open source software because it makes no difference in respect to copyright, that the copyfighters are supposed to criticize.

What is a copyfighter then? It seems to me that a copyfighter is a person who wants to expand the user's rights in using the copyrighted works.


Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this comment in the public domain.

Permalink to Comment

9. Seth Finkelstein on June 7, 2004 10:08 PM writes...

Umm, I may be stating the obvious, but like very many political positions, there is both a liberal and radical wing of copyright reform (as well as reactionary positions, to give a nod to what "cypherpunk" brings up above)

Larry Lessig is the most famous liberal, Richard M Stallman the most famous radical. Jack Valenti is the most famous reactionary.

["liberal" and "radical" here being used only with reference to that one political position]

Very much can be written that radicals aren't liberals, and liberals aren't radicals. Is that the point?

Permalink to Comment

10. charlie on June 7, 2004 10:17 PM writes...

"Why do you thiink it's yours and that you have a right to direct discussion of it?"

That's a strong assumption. I just figured since I had started things out, I'd like to clarify my position given your statement about "purity test." That's a little different, don't you think, then steering discussion?

I'm also not sure why you would think that what I said implies that open source is "about freedom from having to pay the developer for his work." Free as in speech is not free is in beer after all. In fact, I think open source probably opens up a lot of opportunities for starting up small companies or working as an individual consultant.

Permalink to Comment

11. Brad Hutchings on June 7, 2004 11:59 PM writes...

Charlie,

One author and 3 weblogs (Corante counts as 1 weblog), non-commercial use... free license. What are you whining about? You sound like my grandfather's friend who would rather choke on a sausage than wash it down with a sip of Coors.

I've been browsing your blog... I swear, for all the post-Cluetrain claptrap that comes out of the mouths of open source advocates, you would think that if you had a question about how to host a classroom blog, you might take 5 minutes to send an e-mail or 2 minutes to pick up the phone and call the company. Conversation, openness, all that -- it's a two way street. You are acting like such a "consumer".

And the quip about the conversation not being yours was rhetorical. Think about it for a few minutes. Get back to me if the sentiment is lost on you in this context.

Permalink to Comment

12. Crosbie Fitch on June 8, 2004 6:28 AM writes...

Open Source is really a combination of 'freedom of information' combined with public domain, i.e. the right for anyone to inspect the source code of any product that utilises or derives from public domain source code. This is simply to ensure the economics of the system, e.g. that improvements tend to return to the public domain.

Advocates of Open Source are not necessarily supporters of copyright, but in the presence of copyright, the Open Source license goes some way to protecting a creative commons, i.e. preventing people from selling public works on the pretense that they were all their own work.

However, if copyright were dissolved tomorrow there would be no need for Open Source - there would be no advantage for anyone to keep their source code hidden. Indeed, higher value would accrue to software products where the source code was visible.

And, apart from people who've become a little over zealous, Open Source is not supposed to be a religious movement. It's there as an option for those who consider it economic. This also applies from a user perspective. If the software and its TCO meets your needs, select it - irrespective of whether it's OSS or proprietary.

Perhaps the 'Free Software' movement is more evangelical about the superior ethics of copylefting source code, but the majority of Open Sourcers are probably pragmatic realists as opposed to fundamentalist revolutionaries - despite sympathy.

I don't see why copyfighters (copyright antitheticals) must also abstain from use, creation, purchase, or benefit of copyright works. We're not protecting the environment or fundamental human rights here, but arguing and demonstrating against the poor economy, social detriment and anachronistic idiocy of copyright as applied to digital works.

Permalink to Comment

13. charlie on June 8, 2004 11:22 AM writes...

Brad,

LOL.

You are right. I should have sense enough to pick up on when I'm being trolled.

LOL.

Permalink to Comment

14. Brad Hutchings on June 8, 2004 2:37 PM writes...

No Charlie,

If I were trolling, I'd just call you a cheap buffoon and be done with it. Doiing so would fail to make an iimportant point which the Copyfight is going to have to consider. If you demand free culture, where there is never any obligation of anyone to pay creative people for their efforts, or you fund it wiith socialized schemes, you will find people like me against you every step of the way and hoping that the future "SuperDuperDMCA and Sedition Act" lands your butt in a jail cell with a big man named Bubba.

In taking issue with SixApart, you take issue with a prototypical good guy of the evolving commercial software world. (1) They offer source code for their software, so users can customize, expand, and install to their needs. (2) They offer a free personal license which ought to meet most of their potential former-user critics' issues. (3) They offer very reasonable pricing for a license to use their software. (4) They beg you (on license page, on FAQ) to contact them if their standard offerings don't quite meet your needs.

If the Copyfight is anything more than making sure teenagers can steal music (and I'm not totally convinced whether it is or isn't), the Copyfight would be encouraging business models for code and content much like SixApart's and evaluate whether there is legislation or case law needed to ensure that it can be a viable way of doing business. Creative Commons is a great example, but until there is a successful test case enforcing the rights of a user of that model, Copyright law offers a far better deal for creative people. Call me a troll if it makes you feel more secure in your insulated beliefs, but believe me, if you can't sell me on this stuff, you're spitting into a hurricane.

Permalink to Comment

15. Charlie on June 8, 2004 3:45 PM writes...

Brad,

If you are going to continue to attribute popular misconceptions about open source and free culture to me--such as the "free as in beer" mentality--than it is unlikely that I could "sell [you] on this stuff." This is also particularly true given your rather simplified view of open source as a "marketing ploy," which fails to acknoweldge it as a different--and quite probably--more efficient economic model for both software and other content production, one in which IP property rights are shared more equally in significant ways.

For example, your statement above "because the customers of the product can use the source code as a basis to build their own products and having source code facilitates enhancement and debugging in context" minimizes the way that open source has mediated a problem over IP ownership for both coders and clients. Previously, for many developers, the options would have consisted of (1) work for hire, in which case you would have retained none or very few IP rights to the work that you did, and (2) you retain all rights and bind the customer to you for any upgrades and fixes, a situation not in the best interest of the customer. I've seen both happen; someone usually loses. Describing it only as a marketing ploy negates the fact that you can continue to develop that code and use it with other clients. Even more so, the original client is likely to return to you if you provide good code and service, rather than being locked into your services merely because you provided the code initially. This tends to privilege good work over someone merely owning the rights to something, a shift in the way that the market privileges product over production and support.

The previous example does not address, of course, working with community GPL'd projects which have additional unique benefits of their own. So since I'm packing to leave town, I think I will spend my time instead reading Steven Weber's The Success of Open Source because I'm interested in a more in depth economic look at the open source development model, as well as analysis of the collaborative benefits, rather than defending against popular misconceptions about open source. Feel free to call me a buffoon. I've been called much worse :)

Permalink to Comment

16. Brad Hutchings on June 8, 2004 5:43 PM writes...

Charlie,

You directly misquote me. I used the phrase "market tactic", not "marketing ploy". There is a strong difference in connotation, "tactic" being a deliberately neutral term, and "ploy" suggesting underhandedness.

The papers are all good, but I would suggest that you add discussing things with real live software developers who run businesses and who -- in order to eat, shelter themselves, pay their taxes, and afford extravagant bi-monthly vacations -- have to find real working business models. You had the opportunity to start a discussion with SixApart before blasting them. You've had the opportunity to pick my brain about it here. Hell, I even develop and ship a product which has complete source available (fast cross-platform graphics for REALbasic)! I could tell you for instance, that, yeah, your code-for-hire dichotomy thesis has some validity, but if you're basing your whole business on the either-or, you'd do better to fill a corporate programming seat somewhere.

I wouldn't call you a buffoon. I don't call my grandfather's friend a buffoon (literally, he was choking on a sausage and wouldn't take a sip of Coors offered to him, I can't make that stuff up). I'm sure you feel good about your principled stance. Whatever. I think we'd all feel better if you'd take the opportunity to discuss the issue with those you have a problem with if they're obviously willing to listen rather than donning your Open Source burka. That's all.

Permalink to Comment

17. Brad Hutchings on June 8, 2004 6:51 PM writes...

Linked by Dana, Bruce Perens on open source:

An open-source market that has become lucrative for the likes of IBM and Red Hat, though not for most of the independent open-source developers who create much of the software.

MT remains open source (with all the practical advantages of having source code available), expects its serious users to pay for the product. Get used to it.

Permalink to Comment

18. charlie on June 8, 2004 9:53 PM writes...

Brad,

Ah...you got me there. Seems as if I quoted myself. But tactic being a nicer word, the argument is still the same.

However, then you go making assumptions again. Good luck with the dual licensing model. Makes a lot of sense, although differentiating yourself from the open source movement while using an open source license seems an interesting marketing "tactic" ;)

Permalink to Comment

19. Brad Hutchings on June 9, 2004 2:29 AM writes...

Charlie,

The "open source movement", as exemplified by your beef with MT licensing, isn't worth paying any attention. If having source code available better enables your customers to make a purchase decision or having source available helps your customers more effectively use your product, then it's a useful tactic, and your serious customers will appreciate it. If you're running a business, you will never satisfy the zealots, so why bother? More often than not, the zealots aren't the ones who write code anyway. Might that be the case with you?

Permalink to Comment

20. Joseph Pietro Riolo on June 9, 2004 5:38 AM writes...


Responding to Crosbie Fitch's comment:

Regarding your third paragraph where you say that software with visible code will have higher value than software that hides its code if copyright no longer exists:

Assuming that you are correct, why do the authors of open source software still need copyright? Why don't they just disclaim copyright in their software and make the code visible to anyone that will increase their value? No, they need copyright to enforce terms and conditions on the users. One popular condition is to require the new authors to make their code available whenever they distribute the open source software. Without copyright, the authors of open source software are totally powerless and could not tell the users what to do with the software.

This is where we disagree. Those who support open source must support copyright. Else, the principles of open source are just idle words without any legal effect.

Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this comment in the public domain.

Permalink to Comment

21. Crosbie Fitch on June 9, 2004 2:05 PM writes...

Joseph,

OSS needs to utilise copyright in the presence of copyright. It doesn't need copyright in its absense.

This is because public domain works are unprotected and copyright grants anyone a monopoly over a trivial derivative of a public domain work. Thus no sooner would someone contribute work to the public domain than umpteen people would make 'improvements', and release closed works based upon it.

This is simply because the public domain is unable to exercise a copyright of its own. If this unfortunate omission were rectified, it would be a far better public domain.

The GPL remedies this inequity artificially.

Thus, just as any person/company has the monopoly over their closed source code and the ability to determine who can derive from it, now so can the public domain, courtesy of the GPL.

I think it would be a good interim step if the state created a public entity that could receive transfers of copyright to it and provide an equivalent of the GPL license. This public entity would also be funded to defend its IP just as much as any other IP owner.

Ultimately though, copyright should be dissolved - at least in the digital domain.

However, the fact that GPL fundamentally depends upon copyright in order to create the equivalent of a protected public domain is not at all at odds with an aspiration for the abolition of copyright.

Without copyright there is no need for the GPL.

Permalink to Comment

22. Joseph Pietro Riolo on June 9, 2004 8:07 PM writes...


To show that GPL needs copyright to accomplish its goals, I am going to list two goals of GPL:

1) The most important goal of GPL is to make the source code available to the public whenever the executable code is distributed to the public. This is not possible with the public domain source code. You can refuse to show the public domain source code if you like to.

2) The other goal of GPL is not to be restricted by patent. The public domain source code, on the other hand, can be restricted by patent.

Your repeated claim that copyright is necessary because of its presence does not make any sense because it is the copyright that makes the goals of GPL possible. The only reason why you want to use GPL is to accomplish the goals as outlined by GPL. Else, you don't need GPL or copyright.

Your second paragraph supports my point that it is because of the fact that the public domain is totally free and totally unprotected that GPL can't use the public domain but has to use copyright.

Furthermore, your second paragraph accurately illustrates why GPL could not exist without copyright. Without copyright, people can release only executable code without revealing source code. This is not like non-digital things that it is not possible to hide.

Regarding your paragraph about creating a public entity that could receive copyrights from the authors, we already have it. It is called the public domain. But, as shown above, the public domain is not enough for GPL.


Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions in this comment in the public domain.

Permalink to Comment

23. Crosbie Fitch on June 10, 2004 5:26 AM writes...

As I claimed earlier, the GPL is redundant in the absence of copyright. You're confusing the objectives of the Open Source movement with the mechanisms they use to achieve those objectives whilst copyright still exists.

They currently use a mechanism that is based on copyright, but that doesn't indicate support for copyright.

If copyright in the digital domain was abolished tomorrow, the GPL would vanish in a puff of smoke, but it would no longer be necessary. The proponents of Open Source would not regret copyright's passing in any way whatsoever.

Software patents would be another thorn to deal with (being another form of IP monopoly), but they may more easily be demonstrated to be unhelpful once copyright has passed away.

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