Here's our next installment of Dr. Peter H. Salus' book, The Daemon, the GNU and the Penguin, "Excursus: The GPL and Other Licenses." Here are the earlier installments:
He mentions Professor Edward Felten, and some of you may be interested to know that he will participate in what is called a mob-blog on Monday, which I gather means a log of bloggers blogging together in real time, a very appealing concept. Details on Picker MobBlog, including this: Fred von Lohmann of the Electronic Frontier Foundation will present his paper “Measuring the DMCA Against the Darknet,” 24 Loy. Entertainment L.Rev. 635 (2004). That paper builds off of a prior paper “The Darknet and the Future of Content Distribution” written by a group at Microsoft.
Fred will make an initial post, a discussant will make a commenting post, and we should be off and running. We are in the process of organizing participants. So far, participants include Doug Lichtman, Tim Wu, Julie Cohen, Jessica Litman, Bill Patry, Bill Rosenblatt, Larry Solum (Legal Theory blog), and Rebecca Tushnet. That is quite a collection of law professors and practicing attorneys. It simply has to be interesting, to me anyway, no matter what they talk about. I wish they'd post the paper a little in advance, so those of us who are not on their level can get a running start, so as to understand everything. Dr. Salus lists a number of licenses he feels have particular interest. I would add to his list the Artistic License and the LGPL.
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The Daemon, the GNU and the Penguin
~ by Dr. Peter H. Salus
Excursus: The GPL and Other Licenses
A license is formal permission for something. In general,
this is written permission. Historically, such things began
with (unwritten) permission to "go upon or use the land of
another" -- to cross a lord's manor or forest, for example
-- as a "personal privilege, not constituting an interest
in the land."
Copyright is a form of an exclusive license. It is a license granted by
the state to the "author," granting them a monopoly on certain activities for a time. The first copyright statute
was the Statute of Anne, usually cited as 1709. (As with almost
everything, the date is ambiguous: the Statute was introduced
in 1709, but "passed into law" on 10 April 1710. The actual
publication of the Act [BL 8 Anne c. 19, 261] is just headed
"Anno Octavo." But, as the eighth year of Anne's reign terminated
on 17 March 1710, contemporaries must have thought of the statute
as dating from 1709. On the other hand, Adam Budd [TLS 15 July 2005, p. 24] calls it "The Copyright Act of 1710.")
At any rate, the Statute required booksellers to record their
titles in the Stationer's Register to gain protection for their
"literary property." All registrations stem from this.
1
In addition to copyright, the law recognizes patents and trade
secrets (as well as trademarks, service marks, and "trade dress"), insofar as
intellectual property rights are concerned.
Until a few years ago, it was generally held that patents needed
to be capable of physical instantiation. In 1997, patents on
"business methods" were recognized. The next year, Amazon.com
filed for a patent on "one-click" purchasing. In 2005, the
battle over software patents is still being fought, while interpretations of what is allowed seem to be expanding.
There is no formal filing where trade secrets are concerned, although there are recognized steps you must take to protect your secrets,
and most lawsuits have concerned improprieties: breach of
contract and outright theft, for example. Attempting to
keep the knowledge secret (think of the famed Coca-Cola
recipe) is basic here.
To all effects and purposes, software licensing began when
UNIX was ported to the Interdata 7 (in Australia) and the
Interdata 8 (at BTL). Prior to that, an OS ran only on the machine
with which it was sold or, in the case of UNIX, on the PDP-11.
(And, if you were running UNIX and had the misfortune to call DEC
service, they would tell you they "didn't know" about the
alien system.)
The first "open source" license was that of the University of
California at Berkeley (I will not distinguish between "free"
and "open" source at this time). It came about through an
active belief in academic freedom -- the right to examine and
investigate.
As has been related earlier, the specific impetus given to Stallman
to write the original version of the GPL was the refusal of LISP
Machines to share their code.
Though there are now over 500 variants of Free and Open Source licenses, more than fifty of them recognized by the Open Source Initiative (OSI), they
all trace their roots to the BSD and the GPL licenses. And, actually, I see both of
these as having a common origin in the concept of "the right to tinker."
My guess is that there is no one reading this whose childhood is
not littered with the parts of alarm clocks, toy trains, toasters,
robots, radios, etc. (Yes, there is always an extra screw, gear
or spring.) Part of learning how things work is taking them
apart and reassembling them (or attempting to). Part of learning
is destructive analysis.
And that tinkering leads to improvements.
Both the BSD and the GPL are founded in the notion that opening
source code to examination leads to extensions and improvements
that can subsequently be reincorporated into future code.
But proprietary software (and hardware) doesn't permit that.
In fact, as Professor Edward Felten has repeatedly pointed out,
the Digital Millennium Copyright Act (DMCA), specifically criminalizes
tinkering. It has been alleged it also criminalizes, for example, access to no-longer-current
Web pages. The Wayback Machine has just been sued by Healthcare Advocates for
retaining archived pages. While the courts may dismiss the suit, its very
presence is chilling.
In Prokofiev's "Peter and the Wolf," the wolf, in his haste,
swallowed the duck whole. In their headlong run to "protect"
everything, the US Congress more or less did the same with the DMCA Title V, sections
1301-1332. The result has been extreme interpretations, leading to vexatious lawsuits, such as the attempt, happily failed, to extend the DMCA to cover garage door openers.
While the excesses of the large media-producing companies are
many, this "slop-over" into other areas was, I'm sure,
unintentional. However, the DMCA in the US and its proposed parallel
in Canada, and its support by WIPO, are having truly
stultifying effects on research and development.
For details on the variety of Open Source licenses, see Rosen's superb
book on the subject.2 However, I'd like to mention
some things I believe make a few licenses beyond the GPL
and the New BSD licenses important.
"Free as in freedom."
1 Anyone
interested in the history should read Ronan Deazley's On the
Origin of the Right to Copy (Oxford, 2004).
2Lawrence Rosen, Open Source Licensing,
Prentice Hall PTR, 2005.
Dr. Salus is the author of "A Quarter Century of UNIX" and several other books, including "HPL: Little Languages and Tools", "Big Book of Ipv6 Addressing Rfcs", "Handbook of Programming Languages (HPL): Imperative Programming Languages", "Casting the Net: From ARPANET to INTERNET and Beyond", and "The Handbook of Programming Languages (HPL): Functional, Concurrent and Logic Programming Languages". There is an interview with him, audio and video,"codebytes: A History of UNIX and UNIX Licences" which was done in 2001 at a USENIX conference. Dr. Salus has served as Executive Director of the USENIX Association. This work is licensed under the Creative Commons
Attribution-NonCommercial-NoDerivs License. To view
a copy of this license, visit
http://creativecommons.org/licenses/by-nc-nd/2.0/
or send a letter to Creative Commons, 559 Nathan Abbott Way,
Stanford, California 94305, USA.
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