Linus on copyright and "fair use"(thread.gmane.org)
thread.gmane.org
Linus on copyright and "fair use"
http://thread.gmane.org/gmane.linux.kernel/475654/focus=476049
4 comments
2006
jeff merkey is still around? lol, he's an odd one
Date: 2006-12-14 16:52:15 GMT (2 years, 48 weeks, 6 days, 19 hours and 23 minutes ago)
Pretty old news.
Pretty old news.
I hadn't seen it before. I think he gets it 100% correct as well. Good to see things like this to contrast the ridiculous fundamentalism some free software people spout.
This is a fairly serious issue in some free software places (eg. Slashdot). It seems that copyright when used by big corporations is evil and restrictions are good, but when the GPL gets weakened by them it's suddenly a bad thing. Unfortunately, you can't have it both ways, sometimes in life you need to take the bad with the good.
It seems that copyright when used by big corporations is evil and restrictions are good, but when the GPL gets weakened by them it's suddenly a bad thing.
Keep in mind that the GPL is not an end in and of itself; it's a cute little legal hack to create a self-contained domain that simulates a world without copyright, with a one-way boundary to ensure that things stay inside that domain (there's a fairly straightforward game theory analysis of why this gives GPL-style licenses a competitive advantage over BSD-style licenses, but that's getting off topic).
So, in that context, it actually makes sense to simultaneously support strict enforcement of the GPL and oppose copyright.
Of course, most people don't think copyright is intrinsically immoral and thus won't find the above perspective persuasive, but I'm pretty sure that's roughly where people like RMS are coming from.
Keep in mind that the GPL is not an end in and of itself; it's a cute little legal hack to create a self-contained domain that simulates a world without copyright, with a one-way boundary to ensure that things stay inside that domain (there's a fairly straightforward game theory analysis of why this gives GPL-style licenses a competitive advantage over BSD-style licenses, but that's getting off topic).
So, in that context, it actually makes sense to simultaneously support strict enforcement of the GPL and oppose copyright.
Of course, most people don't think copyright is intrinsically immoral and thus won't find the above perspective persuasive, but I'm pretty sure that's roughly where people like RMS are coming from.
> it's a cute little legal hack to create a self-contained domain that simulates a world without copyright
I think even that isn't the end in and of itself. The ultimate goal of GPL is freedom. In a totally copyright-free world one could make GPL code derivatives restricted by hardware that only runs signed binaries (tivoization).
I think even that isn't the end in and of itself. The ultimate goal of GPL is freedom. In a totally copyright-free world one could make GPL code derivatives restricted by hardware that only runs signed binaries (tivoization).
That would be true if it weren't for the fact that the GPL requires distributors to publish source code as well as license their derivatives under the GPL. So it's not just a copyright-free zone, like Creative Commons Share Alike is.
Requiring GPL on derivative works is the one-way boundary I mentioned; the simulated "copyright-free zone" in question is comprised of all GPL-licensed software, so anything existing wholly within that realm isn't impacted. The purpose of the derivative license requirement is to discourage external dependencies creating copyright-by-proxy inside the GPL zone.
I don't actually think the source code publishing requirement is necessary; something like CC BY-SA would probably suffice.
I don't actually think the source code publishing requirement is necessary; something like CC BY-SA would probably suffice.
Then why is the FSF complaining to the EU that Oracle owns MySQL? It is, after all, GPL.
Sure. And to quote a line from "Wicked" (Awesome musical), "There are seldom few at ease with moral ambiguities, so we act as though they don't exist".
Classing things as strictly "bad" and "good" is too simplistic for most situations. Most things have elements of good and bad.
Classing things as strictly "bad" and "good" is too simplistic for most situations. Most things have elements of good and bad.
Agreed. Also, nothing he criticizes here has changed since he wrote this.
Crap. I accidentally down-voted you. Somebody give him an upvote for me?
My apologies, I agree with you.
My apologies, I agree with you.
There, done
One big issue with this is that fair use is a US concept and is much more reasonable than many other countries. The UK is fairly black and white about copyright.
Actually, we do have fair-use these days, it was added to UK law in 2004:
http://www.copyrightservice.co.uk/copyright/p09_fair_use
But, in most ways it is less permissive than US 'fair use'. There again, most of the US fair use rationale isn't codified per se, but based on court interpretation and precedence, and since the UK has nowhere near the level of precedence in that area, it's understandable.
The UK fair use policy DOES offer some slightly more permissive commercial uses however, for example recent spates of youtube videos being pulled because a commercial song was playing on a radio in the background would be 'fair use due to incidental usage' under UK law.
http://www.copyrightservice.co.uk/copyright/p09_fair_use
But, in most ways it is less permissive than US 'fair use'. There again, most of the US fair use rationale isn't codified per se, but based on court interpretation and precedence, and since the UK has nowhere near the level of precedence in that area, it's understandable.
The UK fair use policy DOES offer some slightly more permissive commercial uses however, for example recent spates of youtube videos being pulled because a commercial song was playing on a radio in the background would be 'fair use due to incidental usage' under UK law.
I think you've been misled. That's an international company's website that is using "fair use" as a catch all term for similar legal concepts. I don't think that page is specifically talking about UK law (e.g. "The actual specifics of what is acceptable will be governed by national laws, and although broadly similar, actual provision will vary from country to country.") and I believe the 2004 date is just when they updated that page.
I coincidentally just attended a briefing on copyright given by our lawyers on Thursday and the basic message was that the exemptions are complex and incredibly tight and have gotten much tighter recently (particularly "non-commercial" is a shadow of its former self).
From Wikipedia:
http://en.wikipedia.org/wiki/Fair_dealing
"Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naïvely assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use."
The fact that "fair dealing" is a list of narrow exemptions in the legislation, rather than a general concept is why we're still waiting for new legislation that will allow us to legally rip CDs to put on our iPods while in the US a judge can decide that it is "fair use".
I coincidentally just attended a briefing on copyright given by our lawyers on Thursday and the basic message was that the exemptions are complex and incredibly tight and have gotten much tighter recently (particularly "non-commercial" is a shadow of its former self).
From Wikipedia:
http://en.wikipedia.org/wiki/Fair_dealing
"Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naïvely assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use."
The fact that "fair dealing" is a list of narrow exemptions in the legislation, rather than a general concept is why we're still waiting for new legislation that will allow us to legally rip CDs to put on our iPods while in the US a judge can decide that it is "fair use".