Defending the Free Commons: Another 30 Words in Context

Defending the Free Commons: Another 30 Words in Context


Having defined the terms that represent the core values of free culture and free software in a previous column, today I want to talk about the terms that define its boundaries: how we describe them and defend them. And what's on the other side of them.

The Opposition and the Law

Now there are also words for the things that are designed to interfere with the progress of free culture and unrestricted sharing of works.

The first is "intellectual property." Intellectual property is a kind of legal fiction. It's a system of restrictions on what people can do with physical property intended to make intellectual works (data) behave more like physical objects so they can be sold. In other words, it's an artificial system to enforce the scarcity of works which by their basic nature are not scarce.

Intellectual property is a kind of legal fiction. It's a system of restrictions on what people can do with physical property intended to make intellectual works (data) behave more like physical objects so they can be sold

Despite this oddity, many people have come to accept this idea of property as if it were some kind of natural right.

At its core, intellectual property is directly at odds with "intellectual freedom," which is the fundamental idea behind human rights guarantees like the freedom of speech and expression. This is a pretty important value, so the fact that we have a system designed to compromise this in the name of turning a profit is pretty scary to begin with.

Richard Stallman once wrote that "intellectual property" is a phrase to avoid because it conflates three quite different types of law. These were namely:

  • Copyright
  • Patent
  • Trademark

And indeed they are quite different. Copyright is a state-granted monopoly on making copies of a given work. It adheres to the specific representation of an idea in data, and not to the ideas contained. So, for example, Anne Rice has a monopoly on copying the novel "Interview with the Vampire" (although she has licensed this to a publisher as authors usually do), but she has no monopoly on the idea of stories about reporters interviewing vampires.

At its core, intellectual property is directly at odds with intellectual freedom

Patents on the other hand, are about ideas rather than representations. They document innovations, supposedly of devices, although the idea has been stretched to include processes implemented in software (which is remarkably close to patenting mathematics -- something that the designers of the patent system specifically forbade).

Trademarks are probably the oddest aspect of intellectual property law, because they might more readily be seen as a consumer protection law. The idea behind trademarks is to promote truth by insisting that when a mark is used, the originator of the mark is the one intended. There's more to it, but we'll come back to this.

The idea behind trademarks is to promote truth by insisting that when a mark is used, the originator of the mark is the one intended

In general, free software and free culture have a hostile relationship with both patents (almost universally reviled, at least when applied to software), and copyrights (an uneasy detente maintained by the free software and free culture licenses). Trademarks on the other hand, are largely regarded by free culture pundits as the best of the three, and are used by some projects like the Open Source Initiative, QuestionCopyright.org, Moodle, and Mozilla to protect brand identities without damaging users' ability to use, revise, and redistribute software and other cultural artifacts.

Terms for Electronic Tyranny

On the other hand, the culture of the proprietary content industry has decided that the law is not enough to restrain users' rights, so they've come up with their own methods of "enforcing" their will (often going far beyond what the law in fact allows them). For these we have some other terms:

"Copy protection" was one of the earliest ideas, which dates back to the 1980s. The idea here was usually to exploit some peculiarity of the recording or data storage medium to make a disk or tape which could be used, but not copied with the standard equipment.

Probably the most famous is "Macrovision", a technique for preventing conventional VHS videotape recorders from copying tapes. The machines were designed primarily to copy broadcast video, and they used a level-control system based on tracking the quality of the signal in the "retrace" interval (the time between frames). Macrovision worked by injecting random and varying signals into this zone, causing the VCR's level-control to vary madly resulting in a very bad recording. (I'm less clear on why VCR manufacturers didn't immediately defeat this system -- presumably some form of industry conspiracy was involved, as has been the case with later systems like DVD and Blu-Ray).

The culture of the proprietary content industry has decided that the law is not enough to restrain users' rights, so they've come up with their own methods of "enforcing" their will

Around the same time, however, there were also a variety of tricks for producing uncopyable, or difficult-to-copy floppy disks, and CD-ROMS. These involved things like non-standard sector layouts and writing data which couldn't be read by the normal filesystem, but which the program would check for when running.

All of these today would probably be classed as examples of "Digital Rights Management" (DRM) or "Technical Protection Measures" (TPM) -- two terms promoted by the media industry for a variety of encryption technologies used to enforce their will. Quite often these have nothing to do with copyright -- for example, the primary use of encryption on DVDs is to enforce restrictions on where the DVDs can be played through so-called "region coding." Region coding, of course, has no legal basis whatsoever. It's merely a marketing tool, so that the industry can divide users from each other and sell different products to different parts of the world at different prices. For example, it's one reason why DVD prices in Japan can remain so high when most of the rest of the world gets them much more cheaply.

A similar idea is "Trusted Computing" (TC), a devious mechanism by which the hardware manufacturer includes encryption information in the microchips in your computer so that content-playing software can sniff it and allow closed industry software to discriminate against you (or more accurately against your CPU). Again, this exceeds the limits of the law, since licenses are normally sold to people and not CPUs, but that's another matter.

Free culture advocates often generate their own ("more accurate") versions of these common abbreviations

Free culture advocates often generate their own ("more accurate") versions of these common abbreviations, so I should probably mention these alternate expansions: "Digital Restrictions Management" and "Treacherous Computing", for example (So far, I haven't heard any for TPM -- perhaps "Technical Punishment Mechanism" or "Tyranny Promotion Mechanism"?). Personally, I consider such approaches a little childish, though, and stick with the official expansions, even if I consider their conception suspect.

Knowing the Terms for Your Rights

Of course, before all this rot set in, the copyright system was somewhat more balanced. And there are words specifically to know about its limits:

"Public Domain" is the word for all the intellectual work which no one has any state-granted monopolies over. This really should be regarded as the natural state for intellectual works, but, due to some incredibly grasping laws passed over the course of the 20th century, the public domain has suffered terrible losses. Today, term limits on copyright have extended well beyond the average life-expectancy of the authors, and indeed, are typically indexed to them where they are human. Copyrights are also granted to corporate entities, and in such cases last about 80 or 90 years, making a mockery of the "limited term" provisions for copyright in the US Constitution (I understand the basis for international copyright less well, so I won't comment on that, but the ethics are the same).

"Public Domain" is the word for all the intellectual work which no one has any state-granted monopolies over

"Fair Use" is an important exemption in US copyright law. In many other countries, especially those in the British Commonwealth, the same idea is called "Fair Dealing." Either way, what it means is that, in the name of free speech, there are many uses which should not be covered by copyright, such as scholarship, quoting works for review or for reference, or making political commentary. Although these terms are vague and poorly-defined, they are nevertheless very important to dialogue about copyrights and freedom. You'll find that Wikipedia has collected a fairly comprehensive list of fair use rationales for use in deciding when non-free materials can be used in Wikipedia.

Copyright Free is a term used by some US government agencies (notably NASA), which means that the materials go directly into the public domain due to be created by government employees in the course of their duties. I hope it stays this way: since government-produced intellectual work is paid for by tax dollars, and it is the stated purpose of copyright to encourage the growth of the public domain, it makes sense that such work already paid for by the public should belong to the public. This makes total sense to me. I'm just not used to the government agreeing with me for a change -- it's very refreshing.

Be aware though, that it does take NASA a page full of confusingly-worded legalese to tell you this. Many people, including some NASA employees misunderstand this policy and think it is restricted to non-commercial use, but it is not (yes, I know it takes a very careful reading to see this).

Since government-produced intellectual work is paid for by tax dollars, and it is the stated purpose of copyright to encourage the growth of the public domain, it makes sense that such work already paid for by the public should belong to the public

What they are protecting, though, is not copyright, but endorsement or personality rights. Just because you are free to use an image of an astronaut does not mean you can gimp-in your own brand of yogurt and make it look like they eat it. That would be implying endorsement, and it's not allowed.

PR or Press Release or Public Relations are terms used rather freely in the news industry to refer to materials which were provided by a private entity (person or company) specifically for the press to use. Most of the time when you see the face of some celebrity in a news story, the picture used is a PR photo provided by that person or their agent.

Unfortunately, there is no agreed-upon license implied for a press release or press image. Their use is largely protected not by implied license, but by the latitude given to the press under free speech provisions. Fair use has been interpreted very broadly with respect to reporting news, much as with education. Thus, using a PR image to identify a person is completely acceptable in a news story, even without explicit permission, but may be more awkward in a book or other place.

One great thing that a PR image does imply is the freedom of personality rights. It is, more or less by definition, an image the person depicted wants you to use to reference them, so you are entitled to use it for that purpose. Of course, this is not the same as an endorsement (you can't use it to imply that the person depicted supports your cause, uses your product, or anything along those lines).

Signaling Mechanisms

Trademarks have been embraced by the free culture and free software communities for some time. Unlike copyright, trademark is all about sending signals and identifying particular products.

For example, Mozilla uses a set of logos and names to protect the integrity of their "Firefox" web browser. The name is only officially endorsed for certain builds of the program that they have verified for quality.

Trademarks have been embraced by the free culture and free software communities for some time

This is why the standard Mozilla browser in Debian GNU/Linux is re-branded to "Iceweasel." Debian's browser is a separate build from the same source code, with some minor tweaks, and new branding. The label identifies the browser separately so that Mozilla doesn't take the heat for any configuration bugs in Debian's package of their product.

The Open Source Initiative uses the Open Source trademark to identify licenses and products that conform to their Open Source Definition.

Likewise, Question Copyright has produced the Creator Endorsed mark as a way to identify copies of free culture works whose sale make revenue for the creator (artist or author) of a work.

Keeping the Commons Free

Probably one of the most misunderstood terms in the whole arena is "copyleft."

A copyleft is not the "opposite of copyright" nor the "absence of copyright." Nor is "copyleft software" synonymous with "free software", it is a subset.

A copyleft is a legal mechanism by which the person licensing a software (or other work) to the public insists that it and all derivatives thereof remain free for the public to use -- usually (though not always) under the same terms as the original license.

A work must be copyrighted before it can be copylefted. So it's better to think of it as a matched pair than as an opposed concept.

Some people have suggested that copyleft solely acts to counteract the effects of copyright, but this is untrue

Some people have suggested that copyleft solely acts to counteract the effects of copyright, but this is untrue. The GPL, considered the definitive example of a copyleft license, for example, insists on copyleft restrictions beyond what would exist in a world without copyright -- it demands the sharing of source code to make the creation of derivatives easier. This can be regarded as making things even more free than a world without copyright, or as slightly less free, depending on who you ask.

The term "ShareAlike," preferred by the Creative Commons, is synonymous with copyleft, or at least very nearly so. It is a term which emphasizes that the principle requirement of copyleft is to insist that works be shared on the same terms ("alike") as they were originally shared.

Despite propaganda to the contrary, a copyleft license can never force you to release your work under a copyleft license

The actual Creative Commons ShareAlike licensing module, on the other hand, is a little more specific. It does not contain an exact equivalent to the source code requirement of the GPL (although the restriction against distribution under DRM or TPM can be seen as serving a similar purpose).

But there is another issue which is containment versus derivation.

Copyleft licenses have been described as "viral", meaning that they "infect" the works that they are combined with. But it is important to remember that this only applies to very specific kinds of "combination" -- namely those which incorporate the software entirely into themselves, as opposed to software which is merely presented beside the free software.

Despite propaganda to the contrary, a copyleft license can never force you to release your work under a copyleft license. Rather, releasing under a copyleft license is the price you must pay in order to incorporate the work into your own, thus avoiding the need to repeat the effort in creating it. This is the quid pro quo of copyleft in using free software.

The GPL (both versions 2 and 3) has provisions for exempting certain types of "works" which are regarded as mere "aggregations." For example, if you put a bunch of separate software packages on a CD, some might say you have created a derivative work of all of that software, but the software is not actually interdependent. Likewise, using software on a computer usually involves "combining" it with the operating system software, but this is not how most people imagine the interaction. The GPL also contains provisions to exempt this kind of combination.

The Creative Commons "ShareAlike" module exempts "container" works as opposed to derivative works. There is, however, considerable controversy over which is which

Likewise, the Creative Commons "ShareAlike" module exempts "container" works as opposed to derivative works. There is, however, considerable controversy over which is which. For example, a book containing lots of images may or may not be considered a derivative work of the images. At present, the Creative Commons favors the theory that it is a container, not a derivative, although this has caused some consternation, primarily among photographers who don't like the idea of their works being appropriated for use in books under proprietary licenses.

A "strong copyleft" is usually one which is more aggressive about defining which types of works are "derivatives", although ultimately this definition probably rests with the copyright agencies and is a matter of law.

Speaking the Language

Hopefully this list of terms (along with my earlier column about free software and free culture terms) will provide you with enough background to understand discussion about clashes between free and proprietary culture. Of course, most of these terms have much deeper histories that you may need to look up (try Wikipedia for this), but I hope I've given enough context to understand what these concepts are about.

Licensing Notice

This work may be distributed under the terms of the Creative Commons Attribution-ShareAlike License, version 3.0, with attribution to "Terry Hancock, first published in Free Software Magazine".

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Biography

Terry Hancock is co-owner and technical officer of Anansi Spaceworks. Currently he is working on a free-culture animated series project about space development, called Lunatics as well helping out with the Morevna Project.