Re: thought for the week

On Fri, 23 Jul 1999, Mikus Grinbergs <mikus[_at_]bga.com> wrote:
>
> On Thu, 22 Jul 1999, Greg Ikonen <gikonen[_at_]venlaw.com> wrote:
> >
> > With the exception of the copyleft folks, most people acknowledge that
> > a copyright protection regime encourages creative efforts, and that
> > the promotion of these efforts is a good thing for society.
>
> Is this a put-down? I believe that the essence of copyleft is that
> if AA's original work is used by BB in a derivative product, then BB
> should not "enrich himself" from the work that AA has done. Copyleft
> depends on the copyright protection regime to achieve this aim (BB
> must agree in order to receive a license to copy AA's work). In my
> opinion, copyleft *encourages* AA to share his creative efforts.

It doesn't seem to me that there is any way that BB could enrich himself if he created a dependent work, or simply sold copies of AA's work, in a regime with no copyright protection. So the goal of copyleft, if that is the goal, will be reached if there is no copyright protection; it is only where there is a copyright protection regime that the copyleft license -- i.e., GNU General Public License created by the Free Software Foundation --, or something like it, would be necessary to accomplish that end. (And I don't think that the copyleft actually would accomplish that goal.)

But the purpose of the copyleft license is _not_ to keep BB from enriching himself for the work done by AA. The purpose is so that the source code written by both AA and BB (if BB's code includes soem of AA's code) will be available to everyone so that CC, and everyone else, can enrich themselves by using AA's and BB's code.

Here is what the Free Software Foundation has to say about the purpose of the copyleft license:

   Except for one special situation, the GNU General Public License    (20k characters) <http://www.gnu.org/copyleft/gpl.html> (GNU GPL)    has no requirements about how much you can charge for distributing    a copy of free software. You can charge nothing, a penny, a dollar,    or a billion dollars. It's up to you, and the marketplace, so don't    complain to us if nobody wants to pay a billion dollars for a copy.

   The one exception is in the case where binaries are distributed    without the corresponding complete source code. Those who do this    are required by the GNU GPL to provide source code on subsequent    request. Without a limit on the fee for the source code, they    would be able set a fee too large for anyone to pay -- such as, a    billion dollars -- and thus pretend to release source code while    in truth concealing it. So in this case we have to limit the fee    for source, to ensure the user's freedom. In ordinary situations,    however, there is no such justification for limiting distribution    fees, so we do not limit them.

   Sometimes companies whose activities cross the line of what the GNU    GPL permits plead for permission, saying that they ``won't charge    money for the GNU software'' or such like. They don't get anywhere    this way. Free software is about freedom, and enforcing the GPL is    defending freedom. When we defend users' freedom, we are not    distracted by side issues such as how much of a distribution fee is    charged. Freedom is the issue, the whole issue, and the only issue.

Selling Free Software - GNU Project - Free Software Foundation (FSF) <http://www.gnu.org/philosophy/selling.html#HighOrLowFeesAndGPL>

And here is what the copyleft itself says about this matter:

   When we speak of free software, we are referring to freedom, not    price. Our General Public Licenses are designed to make sure that    you have the freedom to distribute copies of free software (and    charge for this service if you wish), that you receive source code    or can get it if you want it, that you can change the software or    use pieces of it in new free programs; and that you know you can    do these things.

   To protect your rights, we need to make restrictions that forbid    anyone to deny you these rights or to ask you to surrender the rights.    These restrictions translate to certain responsibilities for you if    you distribute copies of the software, or if you modify it.

   For example, if you distribute copies of such a program, whether    gratis or for a fee, you must give the recipients all the rights    that you have. You must make sure that they, too, receive or can    get the source code. And you must show them these terms so they    know their rights.

Now, admittedly the copyleft does rely on the existing copyright protection regime to protect our rights to have access to the source code of the programs that we use that are copylefted, but there is no reason to believe, and lots of reasons not to believe, that there would be less source code freely available if there were no copyright protection at all.

And then there is some doubt in my mind as to whether the effectiveness of the copyleft really depends on the copyright enforcement regime at all. Does anyone know of any case where someone has been sued, or even threatened with suit, for an alleged infringement of the copyright in a copylefted work?

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu/
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists