Supporting Open Source While Opposing Copyright

[Note: this article was featured on Slashdot [1] when it originally appeared, and has been edited slightly since then.]

Recently, Slashdot carried an interesting — and in my opinion mistaken — piece by Greg Bulmash [2] about copyright and open source. Here's Slashdot's summary:

Reader gbulmash sends us to his essay on the fallacy of those who would abolish copyright [3]. The argument is that without copyright granting an author the right to set licensing terms for his/her work, the GPL could not be enforced. The essay concludes that if you support the GPL or any open source license (other than public domain), your fight should be not about how to abolish copyright, but how to reform copyright.

The piece contains flaws in both its reasoning and its rhetoric, and deserves a rebuttal, in part because it reached such a wide audience.

The piece's most obvious problem is its conflation of copyright with "creditright". For example, here's how Bulmash asks us to imagine what would happen if the GPL (a copyright license that allows derivative works, but only if they are also under the GPL) were unenforceable:

You create some cool open source app. Then some megacorporation comes along, removes all your claims of credit, adds 10% more code, compiles it, and distributes the executable binary locked up in DRM. [...] Would that theft of your work act as a disincentive to creating more works? Would you say to yourself, "why bother slaving away to create this when some megacorporation can just steal it, put their name on it, and lock it up in DRM"?

This mixes up two completely different concepts: the right to be credited for a work, and the right to control distribution of that work. Attribution and copying are not the same thing: those who download songs illegally from the Internet do not typically replace the artist's name with their own, after all, and yet the RIAA is still filing lawsuits. So attribution is not really the issue here (and in general, letting data be copied freely actually helps prevent plagiarism, a topic covered in more detail here [4]). In any case, no one objects to laws that protect credit. By all means, let's prevent the megacorporation from distributing your work without crediting you proportionally. But it would be a misnomer to call such protection "copyright" law, because it wouldn't have much to do with controlling copying. It would be a creditright, because it would simply enforce proper crediting.

That passage also shows a larger problem in Bulmash's piece, which is that, circularly, his language often assumes the very points he's arguing for. He talks of "theft" and "stealing", as though when the megacorporation gets your work, you somehow lose the work. Again, if he had objected to the theft of your credit, that would be perfectly reasonable, since the degree to which someone else claims credit for your work is exactly the degree to which you lose credit. But he's apparently talking about the theft of the work itself, and this makes little sense when applied to works of the mind. If I steal your bicycle, now you have no bicycle; if I copy your computer program, now we both have it.

All these problems can be seen at once in a paragraph near the opening of his article:

The problem with a large part of the anti-copyright crowd is that they don't understand or won't admit what copyright entails as a concept. That is the right of the creator of a work to exert some control over how it's used, who can copy and distribute it, and a right to have their authorship acknowledged.

Notice the rhetorical sleight-of-hand there: he presents copy control as a natural and uncontroversial "right" — and then accuses his targets of simply not understanding (or refusing to admit) that copyright entails that right! Of course that's not true: the abolitionists understand perfectly well what the laws are today, they're just trying to change them, on the grounds that the laws are bad. If Bulmash wants to argue that control of distribution should be a right, that's fine, but instead he just asserts the right as though it's a fact of nature, like the sunrise, beyond reasonable dispute. And again, he conflates control of distribution with acknowledgement of authorship.

Now let's move to the core of Bulmash's piece, which is his claim that open source software licensing depends on copyright. Here he does have a point, just not as broad or lasting a point as he thinks. For one thing, he tries to apply the argument to all open source software licenses, when it really only applies to the GPL. That's why all of his examples use the GPL, and not other licenses. The GPL is unusual among open source licenses in that it has a "copyleft" provision: it requires that if you make and distribute a derivative work based on a GPL'd original, your derivative must also be under the GPL. It is true that this provision currently depends on copyright law for enforcement, and on various occasions it has had to be enforced, sometimes publicly, sometimes behind the scenes.

But while Bulmash is technically correct that this part of open source licensing depends (today) on copyright law, he's missing the forest for the trees. The basic argument of copyright abolitionists is that people should be free to share when sharing does not result in any diminution of supply. The GPL simply uses copyright law in a jiujitsu-like manner to enforce this principle, in a legal environment where sharing is prohibited by default and must be explicitly permitted to be legal. All the GPL does is create a space where permission to share is enforced. Take his exercise in imagination all the way: imagine if we had laws that did away with most prohibitions against sharing, but that enforced crediting and permitted authors to enforce GPL-like provisions requiring sharing.

We probably would not call such laws "copyright", since they wouldn't prohibit copying. Even if we did call them "copyright", the word would mean something so different from what it means today as to render Bulmash's arguments inapplicable. Indeed, the GPL today doesn't really prohibit people from copying, it merely imposes certain requirements on those who make and distribute derivative works. If you just want to copy and use a GPL'd work yourself, or even make a private derivative work from it, you're free to do so, and many organizations in fact do that. The GPL's requirement is just that if you want to share, you must enable others to share likewise.

This runs completely counter to the modern notion of copyright, and could be enforced using laws so drastically different from our laws today as to be unrecognizeable. Thus, to say that the GPL depends on copyright is like saying that reading depends on scribes. It may be true for a period of time, but it's certainly not built into the nature of things, and it's not an argument for supporting scribes after something better comes along. Later, we might even use the same word, "scribes", to refer to the new, better thing, but that doesn't mean it's the same as the old thing. (Compare what the word "printer" means today versus what it meant in the seventeenth century.)

Claiming that copyright abolitionists depend on copyright for enforcement of their principles is just playing a name game — it's thinking with words instead of with concepts. The real question is whether their principles actually require today's copyright for enforcement, and I think the answer is that they don't: they could be enforced by means that few of us would label "copyright", if we came to the issue without preconceptions. The fact that copyright law is the tool available today doesn't change that.

Put bluntly: a future law that merely allows authors to enforce sharing need have little in common with today's laws that allow the restriction of sharing. Since these two things are more opposite than alike, calling them both "copyright" doesn't make much sense. But that is what Bulmash does, when he implies that the current copyright regime (or something structurally similar to it) is the only way the GPL could be enforced.

I'm not arguing, by the way, that total abolition of copyright is necessarily the best thing. I do think it's a defensible position, though, and that either abolition or very fundamental changes to copyright terms and restrictions are needed to save our culture from being stuffed into a vending machine and sold back to us dollar by dollar. But that's a topic for another article [5]. With respect to Greg Bulmash, my point is just that copyright abolitionists are being consistent when they use the open source movement as an example.