Don't Let ‘Intellectual Property’ Twist Your Ethos
by Richard M.
June 09, 2006
Most free software licenses are based on copyright law, and
for good reason: Copyright law is much more uniform among
countries than contract law, which is the other possible
There's another reason not to use contract law: It would
require every distributor to get a user's formal assent to the
contract before providing a copy. To hand someone a CD without
getting his signature first would be forbidden. What a pain in
It's true that in countries like China, where copyright law is
generally not enforced, we may also have trouble enforcing free
software license agreements, as Heather Meeker suggests in her
recent LinuxInsider column, “Only in
America? Copyright Law Key to Global Free Software
However, this is not a reason to press for more copyright
enforcement in China. Although we would use it to protect
people's freedom, we have to recognize that mostly it would be
used by the likes of Microsoft, Disney and Sony to take it
Ironically, we might have more success enforcing copyright in
China than Microsoft, Disney and Sony — because what we would
want to do is easier.
Disney wishes to stamp out semi-underground organizations that
sell exact copies. With free software, regardless of precisely which
free license is used, that kind of copying is legal. What we want to prevent,
when the free software license is the
GNU GPL, is the release of
proprietary software products based on our code. That kind of abuse
is at its worst when carried out by large, well-known companies
— and they are easier targets for enforcement. So GPL
enforcement in China is not a lost cause, though it won't be
No Chinese Laundry
Nonetheless, Meeker's claim that this leads to a global
problem is simply absurd. You can't “launder”
material copyrighted in the U.S. by moving it through China, as
she ought to know.
If someone violates the GNU GPL by distributing a non-free
modified version of GCC in the U.S., it won't make any difference
if it was obtained or modified in China. U.S. copyright law will
be enforced just the same.
Although this error might seem to be the central point of
Meeker's article, it is not. The real central point of the article
is the perspective embodied in her use of the term
“intellectual property”. She uses this term pervasively
as though it refers to something coherent — something it makes
sense to talk about and think about. If you believe that, you have
accepted the article's hidden assumption.
Sometimes Meeker switches between “intellectual
property” and “copyright” as if they were two
names for the same thing. Sometimes she switches between
“intellectual property” and “patents” as if they were
two names for the same thing. Having studied those two laws,
Meeker knows they are vastly different; all they have in common
is an abstract sketch of their form.
Other “intellectual property” laws don't even
share that much with them. The implication that you can treat
them all as the same thing is fundamentally misleading.
Along with the term “intellectual property” goes a
false understanding of what these laws are for. Meeker speaks of
an “ethos” of “intellectual property”
that exists in the U.S. because “intellectual property is
in the Constitution.” That's the mother of all
What is really in the U.S. Constitution? It doesn't mention
“intellectual property”, and it says nothing at all
about most of the laws that term is applied to. Only two of them —
copyright law and patent law — are treated there.
What does the Constitution say about them? What is its ethos?
It is nothing like the “intellectual property ethos”
that Meeker imagines.
Failure to Execute
What the Constitution says is that copyright law and patent law
are optional. They need not exist. It says that if they do exist,
their purpose is to provide a public benefit — to promote
progress by providing artificial incentives.
They are not rights that their holders are entitled to; they
are artificial privileges that we might, or might not, want to
hand out to encourage people to do what we find useful.
It's a wise policy. Too bad Congress — which has to carry
it out on our behalf — takes its orders from Hollywood and
Microsoft instead of from us.
If you appreciate the U.S. Constitution's wisdom, don't let
“intellectual property” into your ethos; don't let
the “intellectual property” meme infect your
Practically speaking, copyright and patent and trademark law
have only one thing in common: Each is legitimate only as far as
it serves the public interest. Your interest in your freedom is a
part of the public interest that must be served.