Freedom vs Freedom Revisited

I’ve already written previously about the tension between BSD/Apache-license views and those of the copyleft GPL persuasion, mainly with the aim of pointing out that what is being fought over is 2 different ideals of freedom. However, I think there are some further points to add to the discussion, particularly in the role of the view of copyright that an individual has and how that affects their views of software licensing.

First, to summarise and help make clear my previous points:

  1. BSD/Apache style licenses favour a maximum choice view, in which the ultimate freedom is the ability for a developer to make a choice about how their own written code and opened code they receive can be distributed and follow through with that choice being enforced, even if that choice may not be considered the most beneficial to everyone as a whole (but may be particularly beneficial to the individual).
  2. The Copyleft/GPL style licenses favour a net benefit view, in which core, important freedoms are protected for everyone who receives the code at the expense of the ability of some to make or impose a certain choice for the wider benefit of society in ensuring all receive the same rights and opportunities as others.
  3. That either way, choice is inevitably removed from someone, the only difference being whom they favour (recipients or distributors). With this realisation, arguments about what grants the most freedom become obvious as red herrings, and that we should keep to debates on the fundamental merits of either view and also their relation to society.

However, I have also seen the tendency that such alignment to a particular preference of license may also arise not just out of deeper beliefs, but assumptions and beliefs about the nature of copyright law itself. In some cases, those who prefer “permissive” licenses appear to have the belief that copyright law is as much a matter of property as owning a car or a house, in that code they write is as much their property as any physical item to use, sell, rent and generally dictate terms of use. It’s a belief in copyright as property1 (see the term intellectual property that also gets used in this context), one which has become more and more prevalent, and in turn promotes ideas of infringement as theft, in which the use of a work or the unauthorised sharing is as much stealing as breaking into someone’s house and relieving them of their TV2.

With research however, they would find this is a view that does not really exist within most concepts of copyright. Indeed, within the US, copyright as granted as a temporary privilege for the means of creating a net benefit to society, not as a property right, and as such Congress has no requirement to provide copyright should there be seen as no net benefit to society3. To espouse the maximum choice/code as property view as the ultimate freedom is to actually be in direct contradiction with the intended purpose of purpose of copyright law that the enforcement of such licenses depends on.

Copyright is a function of social benefit. There was no theory of property behind its conception and not because they hadn’t thought of copyright and patents in this way, but because this view had been outright rejected4, with similar views behind copyright law in other countries too. There are a variety of reasons and views as to why copyrighted works should not be considered property, primarily of which is the simple notion that my copy or use of an idea or particular expression of an idea is not one that is exclusive of yours – my downloading and sharing of your song for example does not mean you no longer have that song as in theft, the only assumption is that my non-exclusive distribution of your song may interfere with your potential market for selling or licensing the use of said song. However, such an assumption is less and less supported by reputable evidence, particularly as new means of distribution, development and subsequently new business models have emerged5.

Because of this, economic assumptions as to why a BSD style license is needed or is outright better than a GPL style license are also becoming increasingly thin. If the assumption of being “more free” is a red herring, if a smaller group of copyright-as-property thinkers find themselves not supported by the view of the law, and the economic assumptions for why a BSD license may be needed contradict the research, what is left beyond a need to conform to legacy assumptions and restrictive business models?

1. For a variety of examples of such a view, you need only google. Here however are a few immediate examples:

Should Copyright be Treated Like Property?

2. Once again, a mere Google search will find plentiful examples of such a view:

3. “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.” U.S. Constitution, Article I, Section 8, Clause 8

4. “Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.” Thomas Jefferson to Isaac McPherson

5. A wide variety of research that contradicts popular assumptions about copyright, patents and their utility is available from a number of sources, including even Governments that themselves enact stonger laws:

Hargreaves Report

Gowers Review

Media Piracy in Emerging Economies

Against Intellectual Monopoly


Either Way, Choice Is Removed

Often when a debate between GPL or BSD style licenses erupts, the matter of discussion focuses on choice. Typically, it is said GPL removes choice, and is subsequently detrimental, wrong or even draconian because of this. GPL has a unique characteristic compared to BSD in that if forces developers who decide to share software to do so in a way they may not want to (provide source code), thus removing choice and is a bad license for doing so. What this neglects however is that BSD style licenses allow and were created specifically for such instances when someone would want to remove choice from others – it is a license that also encourages the ability to remove choice from others.
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