A couple of weeks ago, I went to a extremely interesting talk by Niva
Elkin-Koren on the limits of private ordering (i.e., contracts and
licenses) in building communities around the production of free (for
definition of free) creative works. She's writing a paper which I hope
to get my hands on very soon. I have every reason to believe it will
be excellent.
Elkin-Koren is a law professor and one of things she did in her talk
was argue that Creative Commons in particular, but also Free Software
and Free Software inspired licensing in general, is using licenses and
contract law (private ordering in legal jargon) in such a way that
helps opens the door to all kinds of less well-intentioned uses that
advocates of freedom might not be as comfortable with. If I can say,
"you can give away my music but you can't use it for commercial use,"
or, "you can use my software unless you violate someone's human
rights as defined by the United Nations Declaration on Human Rights", what's to keep Adobe from saying that I
can't implement a workaround for their eBooks or keeping the DVD-CCA
from saying I can't watch a DVD without a licensed CSS or reverse
engineer the protocal?
I don't think people should be able to able to use contracts and
licenses to say anything because I don't think it is in the best
interests of creating the most free works and I think Elkin-Koren
agrees. I think that fiddling around or reverse engineering a piece of
software should be a right that no license has any business
blocking. It's outside of the scope of what I think copyright licenses
should be able to be used for.
However, as long as we live in a world where people are producing
non-free creative works and believe that they have something to gain
by restricting consumers' rights, we need to face the fact that if we
are using contracts in the Creative Commons or Free Software contexts
to place any and all restrictions we think are in the interest of
freedom, we may be opening the door to abuse.
We all know that copyleft is enabled through copyright. As a result,
there is a tendency for software freedom advocates to argue for
stronger copyleft by, explicitly or implicitly (and often
unintentionally), arguing for stronger copyright. This is wrong. I
don't believe in peace through war and I don't believe in free access
to information through stronger copyright -- as a stategic technique
or as a ethically defensible strategy.
Using copyright, as it stands, as a weapon against itself is strategic
position that I believe is justifiable. However we must resist the
temptation to adopt an expansionist position on copyright when we
think it benefits freedom because the advocates of freedom will lose
more than they gain.
Elkin-Koren's argument poses an important -- and open -- question to
the supporters of free information in asking them to consider the
extent to which their free licensing practices opens the door to an
environment where private ordering allows anyone to do anything.
At the talk, SPI's lawyer (and sometimes director of photography) Greg Pomerantz made the
argument in support of Free Software licensing saying that Free
Software licenses are limited in scope to cover those things that are
already copyright rights. I think this is a clever way to critique the
policy of license proliferation by Creative Commons and others.
In addition to arguments about the lack of freedom in some creative
commons licenses, they may be strategic arguments to make that by
pursuing software and content licenses that expand beyond the reach of
copyright's existing realm, advocates of freedom are doing more harm
that good -- that licenses should focus on things within the realm of
copyright (derivative works, distribution, etc) and not things like
outside like how they will be used (e.g., barring non-commercial use).
This happens to integrate quite well with more fundamental critique of
Creative Commons that I have written but I'll save that for another
day.