Can We Ban The Copyright Laws?

This post satisfies the assignment for the 4th week of the OERCourse given at Wikiversity. Participants were asked to assess the current status of Copyright law and discuss Lawrence Lessig’s call for “free culture”. Source materials included Wikipedia’s History of Copyright law, ”Free Culture” a (anti/copyright) presentation by Mr. Lessig and review of ”Towards a Global Learning Commons: cclearn”, published in Educational Technology Magazine November 2007 special issue devoted to Open Educational Resources.

At the outset it must be noted that the entire subject matter presented is a vast one the subtleties of which cannot be digested in a mere four hours. That said, the readings presented a geographical perspective of the historical background that resulted in the contemporary status of Copyright as we know it. I was impressed by the presentation by Lawrence Lessig, whose impassioned plea compared well with that of Richard Baraniuk , of “Connections” fame. Yet I was surprised at the intensity of the debate between the free as opposed to the proprietary software school. 

Mr. Lessic correctly describes a situation where copyright law has evolved from a plane where it once monopolized the publication of creative works to an environment of complete freedom to the present retrenchment, where even copying and the creation of derivative works are regulated. This portrait is dominated by a system  lawyers and legislators whose sole purpose is to expand the number of software patents, resulting in the present loss of previously unregulated works in the public domain or those subject to fair use. The objection is that so called “open source” software is not free because developments in technology and the Copyright law itself has improperly expanded to include control over access [freedom to read only at the website], copying and even over derivative works – a situation that is at least similar to the dreaded publishing monopolies made obselete by Donaldson v. Beckett and its progeny. Mr. Lessic urges limits on the power of the Past to control future creativity and advocates all out war against legal and legislative controls over creativity. He reasons that an environment of “free culture”  will lead to the maximum creative impulse and that we must fight for a “transparent creativity”, a free and open sharing of knowledge and for the arrest of the growth of software patents as the latter’s only function is to “exclude future competitors.”

The present status of Copyright in the U.S. is deeply rooted in fundamental notions about “intellectual property rights” and the desire to compensate risk-takers for their effort. In 1980, Congress amended the federal copyright statutes so that they covered computer programs. The courts interpreted these statutes to protect the creator of software from copying, as well as from translating into foreign languages. This expansion in the law spawned a race to the U.S. Patent Office (“USPO”) to patent any and every known procedure, useful or not. One egregious example is multinational corporation IBM’s “bathroom patent“ [on taking a number to use the can]! IBM’s application was ultimately denied but it shed some light on the race to acquire patents. According to Jon Dudas, the current Director of the USPO, protecting intellectual property is only one reason for seeking patents: “Wall Street loves it when companies file patents, since patent numbers can be used as an easy proxy for innovation and R&D work. The sheer number of patents can also make it easier to strike cross-licensing agreements with other companies, as it makes a given patent portfolio look broader and stronger.”

It is argued that software developers’ use of licenses, closed source code and the threat of legal action to protect their expanded intellectual property interests does not foster innovation, therefore there are serious challenges on many fronts, most recently by End Software Patents, a newly minted U.S. coalition whose sole purpose is to advocate new legislation exempting software and business methods from Patent law and to help companies fight such patents in the courts and at the U.S. Patent Office.

Because U.S. law allows patents on software and on business methods, some amount of proprietary works will exist, which means that restrictive licensing cannot be avoided. That being so, the most difficult question facing the software industry is “what is a derivative work of software”? Clearly, if an open source license does not include a reciprocity condition, a derivative work will not cause a problem. The problems will arise in those other cases in which it must be determined whether a software program is a derivative work of another software program. There, it would be a question of the quantity of source code required to create a derivative work. The quantity of source code one may legitimately copy before creating an infringing derivative work is important to licensees, who want to avoid reciprocity conditions of open source licenses, as well as to creators, who want to enforce the reciprocity conditions. Still, there is no question that disputes over whether particular softare is a derivative work of licensed software will most certainly develop. 

Protection of intellectual property rights and profit-making incentives are priorities that will likely not permit the wholesale “free culture” Mr. Lessig talks about. Our free market society permits the “theft” of resources from the public domain and the repackaging thereof in products that are subject to restrictive licensing. However it may be fair to conclude that ”John Public” is not motivated enough to wage the war suggested by Mr. Lessig because such war demands too much on the part of the end-user. Here is a paper that provides quantitative data showing that in many cases, using open source software is a reasonable or even superior approach to using their proprietary counterparts, yet open source software and products are not the number one choice for consumers.

 

“Towards a Global Learning Commons” conclusion that the open learn movement cannot deliver on its goal to transform the conditions for teaching and learning worlwide because “much of what is currently considered ‘free and open’ is legally, technically and/or culturally incompatible” confirms Mr. Lessic’s assertion regarding the barriers built into open source technology. More interestingly though, the article contains a blueprint of the steps that may be necessary if open learning institutions intend to fulfill their mission.