</para>
<para>
More important for our purposes, to support "open source and free
-software" is not to oppose copyright. "Open source and free
- software"
+software" is not to oppose copyright. "Open source and free software"
is not software in the public domain. Instead, like Microsoft's
software, the copyright owners of free and open source software insist
-quite strongly that the terms of their software license be respected by
+quite strongly that the terms of their software license be respected
+by
<!-- PAGE BREAK 272 -->
-adopters of free and open source software. The terms of that license are
-no doubt different from the terms of a proprietary software license.
-Free software licensed under the General Public License (GPL), for
-example, requires that the source code for the software be made
- available
-by anyone who modifies and redistributes the software. But that
-requirement is effective only if copyright governs software. If copyright
-did not govern software, then free software could not impose the same
-kind of requirements on its adopters. It thus depends upon copyright
-law just as Microsoft does.
-</para>
-<para>
-It is therefore understandable that as a proprietary software
- developer,
-Microsoft would oppose this WIPO meeting, and
- understandable
-that it would use its lobbyists to get the United States government
-to oppose it, as well. And indeed, that is just what was reported to have
-happened. According to Jonathan Krim of the Washington Post,
- Microsoft's
-lobbyists succeeded in getting the United States government
-to veto the meeting.<footnote><para>
-<!-- f9. --> Krim, "The Quiet War over Open-Source," available at
-<ulink url="http://free-culture.cc/notes/">link #64</ulink>.
-</para></footnote>
- And without U.S. backing, the meeting was
- canceled.
-</para>
-<para>
-I don't blame Microsoft for doing what it can to advance its own
- interests,
-consistent with the law. And lobbying governments is plainly
-consistent with the law. There was nothing surprising about its
- lobbying
-here, and nothing terribly surprising about the most powerful
- software
-producer in the United States having succeeded in its lobbying
-efforts.
+adopters of free and open source software. The terms of that license
+are no doubt different from the terms of a proprietary software
+license. Free software licensed under the General Public License
+(GPL), for example, requires that the source code for the software be
+made available by anyone who modifies and redistributes the
+software. But that requirement is effective only if copyright governs
+software. If copyright did not govern software, then free software
+could not impose the same kind of requirements on its adopters. It
+thus depends upon copyright law just as Microsoft does.
+</para>
+<para>
+It is therefore understandable that as a proprietary software
+developer, Microsoft would oppose this WIPO meeting, and
+understandable that it would use its lobbyists to get the United
+States government to oppose it, as well. And indeed, that is just what
+was reported to have happened. According to Jonathan Krim of the
+Washington Post, Microsoft's lobbyists succeeded in getting the United
+States government to veto the meeting.<footnote><para>
+<!-- f9. -->
+Krim, "The Quiet War over Open-Source," available at <ulink
+url="http://free-culture.cc/notes/">link #64</ulink>.
+</para></footnote>
+And without U.S. backing, the meeting was canceled.
+</para>
+<para>
+I don't blame Microsoft for doing what it can to advance its own
+interests, consistent with the law. And lobbying governments is
+plainly consistent with the law. There was nothing surprising about
+its lobbying here, and nothing terribly surprising about the most
+powerful software producer in the United States having succeeded in
+its lobbying efforts.
</para>
<para>
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
director of international relations for the U.S. Patent and Trademark
-Office, explained that "open-source software runs counter to the
- mission
-of WIPO, which is to promote intellectual-property rights." She
-is quoted as saying, "To hold a meeting which has as its purpose to
- disclaim
-or waive such rights seems to us to be contrary to the goals of
-WIPO."
+Office, explained that "open-source software runs counter to the
+mission of WIPO, which is to promote intellectual-property rights."
+She is quoted as saying, "To hold a meeting which has as its purpose
+to disclaim or waive such rights seems to us to be contrary to the
+goals of WIPO."
</para>
<para>
These statements are astonishing on a number of levels.
<!-- PAGE BREAK 273 -->
<para>
First, they are just flat wrong. As I described, most open source and
-free software relies fundamentally upon the intellectual property right
-called "copyright." Without it, restrictions imposed by those licenses
-wouldn't work. Thus, to say it "runs counter" to the mission of
- promoting
-intellectual property rights reveals an extraordinary gap in
- understanding—the
-sort of mistake that is excusable in a first-year law
-student, but an embarrassment from a high government official
- dealing
-with intellectual property issues.
+free software relies fundamentally upon the intellectual property
+right called "copyright." Without it, restrictions imposed by those
+licenses wouldn't work. Thus, to say it "runs counter" to the mission
+of promoting intellectual property rights reveals an extraordinary gap
+in understanding—the sort of mistake that is excusable in a
+first-year law student, but an embarrassment from a high government
+official dealing with intellectual property issues.
</para>
<para>
Second, who ever said that WIPO's exclusive aim was to "promote"
-intellectual property maximally? As I had been scolded at the
- preparatory
-conference of WSIS, WIPO is to consider not only how best to
-protect intellectual property, but also what the best balance of
- intellectual
-property is. As every economist and lawyer knows, the hard
- question
-in intellectual property law is to find that balance. But that there
-should be limits is, I had thought, uncontested. One wants to ask Ms.
-Boland, are generic drugs (drugs based on drugs whose patent has
-expired) contrary to the WIPO mission? Does the public domain
-weaken intellectual property? Would it have been better if the
- protocols
-of the Internet had been patented?
-</para>
-<para>
-Third, even if one believed that the purpose of WIPO was to
- maximize
+intellectual property maximally? As I had been scolded at the
+preparatory conference of WSIS, WIPO is to consider not only how best
+to protect intellectual property, but also what the best balance of
+intellectual property is. As every economist and lawyer knows, the
+hard question in intellectual property law is to find that
+balance. But that there should be limits is, I had thought,
+uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
+based on drugs whose patent has expired) contrary to the WIPO mission?
+Does the public domain weaken intellectual property? Would it have
+been better if the protocols of the Internet had been patented?
+</para>
+<para>
+Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
rights are held by individuals and corporations. They get to decide
-what to do with those rights because, again, they are their rights. If they
-want to "waive" or "disclaim" their rights, that is, within our tradition,
-totally appropriate. When Bill Gates gives away more than $20 billion
-to do good in the world, that is not inconsistent with the objectives of
-the property system. That is, on the contrary, just what a property
- system
-is supposed to be about: giving individuals the right to decide what
-to do with their property.
+what to do with those rights because, again, they are their rights. If
+they want to "waive" or "disclaim" their rights, that is, within our
+tradition, totally appropriate. When Bill Gates gives away more than
+$20 billion to do good in the world, that is not inconsistent with the
+objectives of the property system. That is, on the contrary, just what
+a property system is supposed to be about: giving individuals the
+right to decide what to do with their property.
</para>
<para>
-When Ms. Boland says that there is something wrong with a
- meeting
+When Ms. Boland says that there is something wrong with a meeting
"which has as its purpose to disclaim or waive such rights," she's
saying that WIPO has an interest in interfering with the choices of
<!-- PAGE BREAK 274 -->
the individuals who own intellectual property rights. That somehow,
-WIPO's objective should be to stop an individual from "waiving" or
- "disclaiming"
-an intellectual property right. That the interest of WIPO is
-not just that intellectual property rights be maximized, but that they also
-should be exercised in the most extreme and restrictive way possible.
+WIPO's objective should be to stop an individual from "waiving" or
+"disclaiming" an intellectual property right. That the interest of
+WIPO is not just that intellectual property rights be maximized, but
+that they also should be exercised in the most extreme and restrictive
+way possible.
</para>
<para>
There is a history of just such a property system that is well known
-in the Anglo-American tradition. It is called "feudalism." Under
- feudalism,
-not only was property held by a relatively small number of
- individuals
-and entities. And not only were the rights that ran with that
-property powerful and extensive. But the feudal system had a strong
-interest in assuring that property holders within that system not
-weaken feudalism by liberating people or property within their control
-to the free market. Feudalism depended upon maximum control and
-concentration. It fought any freedom that might interfere with that
-control.
+in the Anglo-American tradition. It is called "feudalism." Under
+feudalism, not only was property held by a relatively small number of
+individuals and entities. And not only were the rights that ran with
+that property powerful and extensive. But the feudal system had a
+strong interest in assuring that property holders within that system
+not weaken feudalism by liberating people or property within their
+control to the free market. Feudalism depended upon maximum control
+and concentration. It fought any freedom that might interfere with
+that control.
</para>
<para>
As Peter Drahos and John Braithwaite relate, this is precisely the
choice we are now making about intellectual property.<footnote><para>
<!-- f10. --> See Drahos with Braithwaite, Information Feudalism, 210–20.
</para></footnote>
- We will have
-an information society. That much is certain. Our only choice now is
-whether that information society will be free or feudal. The trend is
- toward
-the feudal.
+We will have an information society. That much is certain. Our only
+choice now is whether that information society will be free or
+feudal. The trend is toward the feudal.
</para>
<para>
When this battle broke, I blogged it. A spirited debate within the
comment section ensued. Ms. Boland had a number of supporters who
-tried to show why her comments made sense. But there was one
- comment
-that was particularly depressing for me. An anonymous poster
-wrote,
+tried to show why her comments made sense. But there was one comment
+that was particularly depressing for me. An anonymous poster wrote,
</para>
<blockquote>
<para>
-George, you misunderstand Lessig: He's only talking about the
-world as it should be ("the goal of WIPO, and the goal of any
-government, should be to promote the right balance of
- intellectualproperty
-rights, not simply to promote intellectual property
-rights"), not as it is. If we were talking about the world as it is,
-then of course Boland didn't say anything wrong. But in the world
+George, you misunderstand Lessig: He's only talking about the world as
+it should be ("the goal of WIPO, and the goal of any government,
+should be to promote the right balance of intellectualproperty rights,
+not simply to promote intellectual property rights"), not as it is. If
+we were talking about the world as it is, then of course Boland didn't
+say anything wrong. But in the world
<!-- PAGE BREAK 275 -->
-as Lessig would have it, then of course she did. Always pay
- attention
+as Lessig would have it, then of course she did. Always pay attention
to the distinction between Lessig's world and ours.
</para>
</blockquote>
whether our government should speak the truth or not.)
</para>
<para>
-Obviously, however, the poster was not supporting that idea.
- Instead,
+Obviously, however, the poster was not supporting that idea. Instead,
the poster was ridiculing the very idea that in the real world, the
-"goal" of a government should be "to promote the right balance" of
- intellectual
-property. That was obviously silly to him. And it obviously
-betrayed, he believed, my own silly utopianism. "Typical for an
- academic,"
-the poster might well have continued.
+"goal" of a government should be "to promote the right balance" of
+intellectual property. That was obviously silly to him. And it
+obviously betrayed, he believed, my own silly utopianism. "Typical for
+an academic," the poster might well have continued.
</para>
<para>
-I understand criticism of academic utopianism. I think utopianism
-is silly, too, and I'd be the first to poke fun at the absurdly unrealistic
-ideals of academics throughout history (and not just in our own
- country's
-history).
+I understand criticism of academic utopianism. I think utopianism is
+silly, too, and I'd be the first to poke fun at the absurdly
+unrealistic ideals of academics throughout history (and not just in
+our own country's history).
</para>
<para>
-But when it has become silly to suppose that the role of our
- government
-should be to "seek balance," then count me with the silly, for
-that means that this has become quite serious indeed. If it should be
-obvious to everyone that the government does not seek balance, that
+But when it has become silly to suppose that the role of our
+government should be to "seek balance," then count me with the silly,
+for that means that this has become quite serious indeed. If it should
+be obvious to everyone that the government does not seek balance, that
the government is simply the tool of the most powerful lobbyists, that
the idea of holding the government to a different standard is absurd,
that the idea of demanding of the government that it speak truth and
-not lies is just naïve, then who have we, the most powerful democracy
-in the world, become?
+not lies is just naïve, then who have we, the most powerful
+democracy in the world, become?
</para>
<para>
It might be crazy to expect a high government official to speak
projects / text-free-culture-lessig.git / commitdiff