As I’ve said – those who make “hair” comments are obviously not interested in a serious discussion. They are blinded by the rhetoric of IP and wish to label those interested in making this world a better place as “communists” or “hippies” or some other meaningless name. Most likely they are people in the IP industry who see copyright, trademark, and patents as a means to their own selfish end. They want to package all of these up and place them under the IP umbrella – making this a 2-sided debate. A trick that politicians often use to sway the masses with reagards to various social issues. Sorry to disappoint, but I’m doubting that Lessig’s blog is where you will find an ignorant mass to follow your rhetoric.

Complete anonymity is another clue that one is not interested in finding out what is true. I do believe they call the likes of you on Slashdot.org – “Anonymous Cowards”.

Let’s discuss.

I will start with your assertion that license is not
a contract. Not all licenses are alike. Some licenses
are very simple that they do not add anything to
copyright in a work. Some licenses are very complex
that they add so many elements to copyright. Then,
there are many licenses that are between two extremes.

These extra elements are not always preempted by the U.S.
copyright law. Regarding these extra elements that are
not preempted by the copyright law, where do you think
that the licensor get the power to enforce the extra
elements? The answer is the state and common laws that
cover the agreements between parties. In many ways,
license is like contract but there are some differences
that keep them apart. Regardless of these differences,
the license can be enforced under contract law if it
covers license. If contract law does not specifically
cover license, there will be other state laws or common
laws that cover the license.

Why do we need state or common laws to deal with license?
Precisely because copyright law does not cover the extra
elements as found in license.

The most common extra element in license is the manifestation
of agreement between two parties. Copyright law does not
need any agreement from anyone for it applies to everyone
in the U.S. But, license needs an agreement because otherwise,
it is worthless. GPL allows you to do certain things as long
as you agree to the conditions as stated in GPL. Without
the agreement, GPL is just a blob of words. GPL has no effect
on anyone who does not agree to it or does not see it.

When you sue someone for breaching the conditions in your
license, you do not use the copyright law to prove that the
violator agrees to your conditions. You have to turn to
state or common laws to prove that the violator agrees to
your conditions. It happens that one of these laws is a
contract law. In this case, license acts like a contract
even though you do not want to call it as a contract.

Before I go on, not all licenses have conditions. A very
plain license does not need any agreement. For example, an
author may write a license like this: “I hereby grant everyone
to copy my novel.” In this case, it is totally unilateral
meaning that the people who see the license are not obligated
to do anything to gain the author’s grant.

Are there any other extra elements in GPL that are not
preempted by the copyright law? Yes. Here is the list of
extra elements:

1. Definition of “program” is broader than the scope of
copyrightable work.

2. Definition of “derivative work” is broader than the
definition of derivative work in the U.S. copyright law.

3. The requirement to include the notice of disclaimer
of warranty and GPL in the copies of program.

4. The requirement to notify people of any changes
you made to the program.

5. The requirement to license your work, that contains
any portion of program, under the same terms of GPL.

6. The requirement to make your source code available
to others.

7. The requirement to provide royalty-free license of
patent.

There may be other elements that I have not listed but
the above should give you general idea of how many
extra elements there are in GPL.

None of these elements are covered by the U.S. copyright
law. You can’t enforce these elements through the copyright
law. So, how can you enforce these elements? Through
state and common laws including contract law.

There are four different situations that can happen.

1. No violation of copyright law and license.

There is nothing to be said here. It has no consequence.

2. Violation of copyright law but not violation of license.

In this second situation, this means that a person has not
seen the license or does not agree to license. If he
copies someone else’s program and distributes without the
permission from the author of the program, the author
can sue him only under the copyright law. The license
has no affect in this situation. This is simple and
everyone is familiar with this.

3. Violation of copyright law and violation of license.

This third situation is familiar to everyone as well.
If a person breaches any condition in license, he
loses the permission to copy and distribute program.
And because he already copies and distributes program,
he infringes the author’s copyright.

4. Violation of license but not violation of copyright
law.

This fourth situation is not well known to the lay
people. Here is an example of the situation: I
copy 1% of GPL-covered software. That 1% is allowed
by the Fair Use Doctrine or Merger Doctrine. Therefore,
there is no copyright infringement. I include that
1% in my own program and distribute only executable
code to the public without making the source code
available. There is no problem with that, in
spite of what Section 5 in GPL says. Section 5 in
GPL is not entirely accurate. The lay people who
are not familiar with the copyright law are easily
misled by Section 5 in believing that there is no
way to copy, modify, or distribute any portion of
program outside of GPL.

However, if I agree to GPL at first place, I will
breach the conditions in GPL if I do the above.
In this case, the licensor has to use state and
common laws to sue me for breaching the conditions.
Nothing in the copyright law gives the licensor
the privilege to sue me precisely because the
code that I copied and distributed without making
the source code available is not copyright
infringement.

This fourth situation shows the true nature of
license – that it is or acts like a contract.

Next, I will argue against your assertion that I am
misrepresenting Richard Stallman’s position. I have no
problem with his own philosophy but I have problem with his
presentation of his philosophy. He is like a marketer that
uses the dynamic, energy-filled, exciting, noble name of
“freedom” and “free” to mislead people in believing that
the GPL-software is truly free (in respect to freedom, not
price). Imagine the lack of luster if he does not use
“free” or “freedom”. Let’s see if GPL-covered software is
truly free as compared with the public domain software. The
obvious difference between two software is the conditions.
GPL imposes conditions on the people who agree to GPL. Public
domain on the other hand imposes no conditions on the users.
Freedom, by several definitions, means absence of restriction
or control.

I have no problem with people choosing to use GPL but tell
GPL as it is, not as it pretends to be. GPL is not about free
(in respect to freedom, not price). GPL is about control over
the allocation of rights, privileges, and permissions and the
behavior of people. GPL does not allow anyone who do not agree
to its conditions to enter the gate to the library of
GPL-covered software. It is like the old days when libraries
were private. The patrons were given special privileges to
access the private libraries. Those people who do not have
special privileges are denied the access to the same libraries.
The public domain is much like the modern public libraries
where no one needs special privilege to access them.

If you can show me where Richard Stallman actually supports
public domain for some software, I will stand corrected.

Joseph Pietro Riolo
<[email protected]>

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

You refuse to believe even in YOUR OWN private property! If you own a computer, the state won’t permit you use it to copy and redistribute certain numbers YOU OWN. 😉 Even though your private property is designed to do it.

Can’t copy a book you own and offer it freely, probably can’t even make a store to sell your property with 1-click ordering. Can’t sing Happy Birthday for certain purposes. For the Collective Good.

Eh “komrade,” you might like China, it’s still communist and is happily absorbing our manufacturing and tech. 😉

You amaze me, Joseph. I thought you knew at least a little bit about copyright, but you are missing even the basic stuff.

Nobody, and I mean nobody, has to agree to any terms or conditions in a copyright license. A license is not a contract.

You are probably confused with EULAs and Shrinkwrap “Licenses”, which are contracts that pretend to be licenses.

“Lay people should educate themselves that GPL or any license that comes with conditions does not grant any freedom“

Anything you are allowed to do once you meet the conditions, and that you were not allowed to do under copyright, is a freedom.

The freedoms granted in licenses for proprietary products are usually so limited that they are laughable, and the language of such licenses often dwell on what you are not allowed to do (re-iterating copyright law); but the GPL is not like that.

“Where can they find the real freedoms? Only in the public domain. But then, the public domain proves too powerful for Richard Stallman that he refuses to recognize the true freedoms in it and he misuses the noble name of freedom to extol his GPL.“

Now you are truly sinking to the level of the three blind mice. You are misrepresenting Stallman’s position, who actually has a very nuanced stance on copyright. And he certainly advocates public domain grants for some forms of software.

You are allowed to not understand why the GPL is what it is. But don’t smear licenses and people just because you do not understand them.

You are using Richard Stallman’s language to argue
against him. When you use his language, you
implicitly accept his interpretation of freedom
(“Restrictions are freedom.”). There is no “free”
(in respect to liberty) thing about “free software”
in respect to Stallman.

I am sure that you do not intend to do that but it
is amazing how he can influence your thinking by
making you accept his own definitions of “free”
and “freedom”. I don’t have the collection of
your comments to give you the examples because
it is copyright infringement to collect your
comments but I detected some Stallmanism in your
comments once in a while.

Joseph Pietro Riolo
<[email protected]>

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

joseph pietro riolo, we’re not sure to what you are referring, but we assure you – there’s nothing that richard stallman is selling that we mice are buying. his rotten cheese is being left on the trap where it belongs.

tayssir john gabbour you are confusing the free market, which necessarily operates under the rule of law, with anarchy. there is nothing socialist – closet or otherwise – about those of us who believe in the ownership and accumulation of private property and the proper role of government in protecting same.

extending government’s reach into cyberspace is not socialism, it is an extension of the free market to rescue it FROM socialism, or at least wrest it from those who would condemn it to socialist utility.

long haired hippie people need not apply.

The GPL itself merely is against this anti-freemarket communism. Because ideas have more value on the free market.

Unlike what Bill Gates claims, there are many communists. Who claim it is all for “art’s sake and intellectual freedom through state enforcement,” like a Soviet might claim. They just don’t like thinking of themselves this way. 😉

There is no freedoms in Creative Commons Licenses and
GPL. The freedoms that they claim to provide are strictly
privileges that are granted to people who agree to the
terms and conditions in the license. It is like an
association that grants privileges to its members that
are not available to the public.

People are confusing privilege with freedom. Although
one of freedom’s definitions includes privilege, people
are still confusing that definition with other more
common definitions of freedom that are closer to liberty.

Richard Stallman is speaking Orwellian language to claim
that his license (GPL) provides freedoms. It is amazing
that his propaganda works so well that even three blind mice
fell for it. Lay people should educate themselves that
GPL or any license that comes with conditions does not
grant any freedom but grants only privileges that are available
only to the people who agree to be bound to the conditions
as outlined in the license. Where can they find the real
freedoms? Only in the public domain. But then, the public
domain proves too powerful for Richard Stallman that he
refuses to recognize the true freedoms in it and he misuses
the noble name of freedom to extol his GPL.

My friends, don’t confuse privilege (found only in one
definition of freedom) with liberty (found in many
definitions of freedom).

Joseph Pietro Riolo
<[email protected]>

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

we are huge fans of professor lessig and have learned more from him and from the rest of you who challenge our ideas than from hanging out with those who reinforce them.

this blog is indeed similar to many other mutual admiration socities on the web, but speaking from our personal experiences, it is also remarkable for the way in which dissenters such as we are generally well-treated.

of course when we get a little too close to the truth, we are called names, but this means nothing to us. cut of our tails and they grow back. heck, compared to the farmer’s wife and her carving knife you people are friendly little pussy cats.

if anything, we mice hope you will sharpen your dull arguments and make this a bit more challenging for us.

the cheese tastes better when its harder for us to grasp from your hands and we’ve been putting on too much weight.