In an essay entitled Copyright, Copyleft and the Creative Anti-Commons, Anna Nimus explores the contradictions of the “copyleft” movement, insofar as the copyright freedoms that are promoted tend to be founded on the orthodox principles of copyright law that they seek to be freed from.
Copyleft uses copyright law, but flips it over to serve the opposite of its usual purpose. Instead of fostering privatization, it becomes a guarantee that everyone has the freedom to use, copy, distribute and modify software or any other work. Its only restriction is precisely the one that guarantees freedom – users are not permitted to restrict anyone else – freedom since all copies and derivations must be redistributed under the same license. Copyleft claims ownership legally only to relinquish it practically by allowing everyone to use the work as they choose as long the copyleft is passed down. The merely formal claim of ownership means that no one else may put a copyright over a copylefted work and try to limit its use.
The GPL and copyleft is frequently invoked as an example of the free software movement’s anticommercial bias. But there is no such bias. The four freedoms required by the GPL are “the freedom to run, study, distribute and improve the source code so long as the same freedom is passed down“ means that any additional restriction, like a non-commercial clause, would be non-free. Keeping software free does not prevent developers from selling copies they’ve modified with their own labour and it also does not prevent redistribution (without modification) for a fee by a commercial company, as long as the same license is passed down and the source code remains transparent.
Nimus pulls no punches, making her agenda clear. Her essay is clearly marked, Anti-Copyright, but she wryly acknowledges the obvious dilemma:
“…do you affirm absolute freedom, knowing it could be used against you, or moderate freedom by restricting the information commons to communities who won’t abuse it because they share the same spirit?’
Having said that, she draws close aim at those she sees who might facilitate the co-opting of free-information ideals, including Stanford law professor Lawrence Lessig, for promoting licenses like those issued under Creative Commons as being examples of a solution to the problem of content producers unduly controlling our ideas, culture and technological innovation; where, she notes, it is the producer under those licenses who has an exclusive right to choose the level of freedom to grant to the consumer:
The point is clear: Creative Commons exists to help you, the producer, keep control of your work. You are invited to choose among a range of restrictions you wish to apply to your work, such as forbidding duplication, forbidding derivative works, or forbidding commercial use. It is assumed that as an author-producer everything you make and everything you say is your property. The right of the consumer is not mentioned, nor is the distinction between producers and consumers of culture disputed. Creative Commons legitimates, rather than denies, producer-control and enforces, rather than abolishes, the distinction between producer and consumer. It expands the legal framework for producers to deny consumers the possibility to create use-value or exchange-value out of the common stock.
She is right on the mark when she observes that what ends up happening, is the creation of more elaborate versions of copyright; in other words, more elaborate copyright licensing issues:
Whereas copyleft claims ownership legally only to relinquish it practically, the references to ownership by Creative Commons is no longer an ironic reversal but real. The pick and choose CC licenses allow arbitrary restrictions on the freedom of users based on an author’s particular preferences and tastes. In this sense, Creative Commons is a more elaborate version of copyright. It doesn’t challenge the copyright regime as a whole, nor does it preserve its legal shell in order to turn the practice of copyright on its head, like copyleft does.
The interesting aspect of her expose of this co-option, which she terms an extravagant dishonesty, is that it shows the persistent, and at least at this time, necessary tethering of so-called copyleft to the basics of copyright law. In other words, since we don’t yet live in Utopia remedies still need to be considered for the misuse of freely-distributed software, music, video, etc.
The basic idea behind open source is very simple: When programmers can read, redistribute, and modify the source code for a piece of software, the software evolves. People improve it, people adapt it, people fix bugs. And this can happen at a speed that, if one is used to the slow pace of conventional software development, seems astonishing.
By the same token, Creative Commons provides tools that let authors, scientists, artists and educators mark their creative work with the freedoms they want it to carry. Essentially, you can change your copyright terms from All Rights Reserved to Some Rights Reserved. In particular, it is stated:
Creative Commons licenses give you the ability to dictate how others may exercise your copyright rights such as the right of others to copy your work, make derivative works or adaptations of your work, to distribute your work and/or make money from your work. They do not give you the ability to restrict anything that is otherwise permitted by exceptions or limitations to copyright including, importantly, fair use or fair dealing nor do they give you the ability to control anything that is not protected by copyright law, such as facts and ideas.
The GPL, and other copyleft licenses, are copyright licenses. This means that only the copyright holders are empowered to act against violations. The FSF acts on all GPL violations reported on FSF copyrighted code, and we offer assistance to any other copyright holder who wishes to do the same.
But in all of these instances, correctly put, it’s still up to the creator as copyright owner – the person who magnanimously released the work into the world on a free, open source, or Creative Commons-type basis, to enforce remedies when it comes to the misuse of that work – which can be an especially tall order if the misused version has been virally distributed over the Internet.
While the perpetrators of misuse might believe they are able to deal with the work as they please because copyright in the work has been abandoned or dedicated to the public domain by the act of releasing it for free, this is a fallacy. Copyright continues to subsist, despite the work being freely-distributed. At minimum, this means the creator continues to hold the moral rights, mandated under the Berne Convention as copyright law in most jurisdictions (n.b. moral rights are handled somewhat differently in the United States), to be attributed as the creator or author of the work.
But if the work has been freely-distributed, what about damages? It seems counterintuitive for damages to be awarded for wrongful copying or distribution of a work, if the work was intended to be distributed on the basis it could be freely copied or distributed. Statutory damages might be an answer. Another approach might be an accounting of profits unjustly gained. But again, financial remedies seem to cut against the original expectation of the party releasing the work in the first place.
On a micro-economic level, aside from the important right to be attributed as the creator of one’s own work, the violation of so-called copyleft rights might seem trivial. The main avenue for recourse of alleged victims seems to be public outings or censure of violators on blogs, forums, and the like, versus recourse to the courts. That is, the main recourse is to embarrass the perpetrators into fixing the problem – to publicize the problem so the community as a whole may organically develop an appropriate response – in a way, like an open source remedy. However, on a wider scale, when looking at the global picture, it is evident that a community-based approach for keeping violations in check has its limits. Can we really expect voluntary compliance? It seems Utopian to me.