Subject: The Feudal Lord Analogy (RE: Response to Mr. Maturana)
From: "I.R.Maturana" <irm@myrealbox.com>
Date: Mon, 18 Mar 2002 07:08:54 +0100

> I am not sure if I understand fully Mr Maturana's point fully here, but I
> infer that he is saying that people are resorting to patents because
> copyrights are so ineffective. 

Exactly. 

Note that the analysis above is not mine. I read it signed by some 
intellectual in some Spanish paper when the last IP reform was 
adopted in Europa. I remember this analysis as very "transparent".


> While there are differences between copyrights and patents, 
> the purpose of
> both is protection of your IP.  And again, if the law is 
> impotent in its
> enforceability and evidentiary standards, there is a very 
> serious problem
> with the status quo. .

I think the better Law is a law which asserts the equality
of parts. That is, a contract. All laws are a contract. 
A License also can be a contract (common sense tell us 
that most of actual software licenses are false contracts, 
that is, an imposition of arbitrary conditions) 
Laws are not arbitrary, or they are not laws. Even the 
Constitution is a Common Contract.

I believe that the best IP protection will be guarantee when 
authors will recognize the equality of rights of "derivators".

My opinion is that some of the OS licenses are not fully compliant 
with this idea, but they grow up anyway because they are based on 
the mutual confidence between author and licensees. 
Al least, OS licenses proves that confidence is a stronger 
basis than coercion. 

====

While thinking about your comments, I got some analogy.

Consider one minute that IP Laws reproduce a feudal scheme. 
This analogy is surprisingly fertile :-D) 
For example, we can say that a work is a fief. The copy-owner
is a lord, or landowner. The licensees are the serfs who produce 
goods by derivation. And the fees are the Intellectual Taxation 
that the serfs pay for receiving regular versions!

Ok, this is only an analogy, but it helps to understand a 
lot of points. 

- First, there is no real difference between an OS license and a 
non-OS license. When examining the OS scheme, we see that the
only difference with non-OS scheme, is that the landowner has 
released the serfs from any obligation. But the OS Landowner 
has preserved the same property scheme than for non-OS landowners.

The property scheme does not change at all. The serfs can live
without taxation as long as they do not try to cross through the 
fief boundaries. 
When they compare their status with other serfs in other neighbors, 
the serfs easily retain some affection for their landowner. However, 
this kind of affection is still a chain. The serfs understood they 
are only released. In fact, the landowner only gave them freedom
but not the Liberty. This is because Liberty is given by Laws 
while an arbitrary license given by a simple copy-owner is not a Law.

- Second, this analogy helps us to find solutions to the OS issue. 
The goal is not exactly to cut the author's neck (we shall need 
him alive, see later). 
The solution is to proclaim that inside the boundaries of the 
Author's fief, "We", author and licensees, we are equals in rights.
Doing that, we proclaim the same thing that IP Laws (under Berna) 
proclaims: IP rights of authors and "derivators" are the same on their 
respective versions. 

Authors are needed because their moral rights are the legitimate 
source of the licensees rights. The author's original copyright is
needed to enforce the rights of licensees under the Laws. 

Therefore, what we need is that authors replace their arbitrary 
system of "rights granted", by a definite number of 
"obligations _freely_ contracted". In other words, we want a true 
"contract" where all parts will be equal in rights. 
In other words, we need some model of Open-Contract, which works
like a constitution for people, but applied to "derivators".

- Third, this analogy shows that the actual licensing model lives in 
the past history. It shows that Laws and International Treaties can 
protect the OS model better than any non-OS protected model. 

===

IMHO, the analogy also shows how this OS initiative can play a good 
role for software: it can work on defining the rules which will 
ensure that a license is conformant with this Open Contract. 
Note that under a contract model, this is no matter if the authors 
do or do not request a fee. They will do as they wish. 
The matter is to ensure that author's license enforces the equality of 
the rights of licensees for copy, modification, adaptation 
AND _translation_ of his work. 

For example, one contract can say that the commercial 
ownership of the work will be suspended (the PLT/LPT). 
Another can say that licensees will share with him distribution rights 
(I saw some OS models close to this). The point here is that under 
an Open-Contract model, the licensees will be given "free obligations" 
rather than undefined "rights". That is, obligations freely adopted,
for example, by voting 

===

Ok. I finish. This thread started on the idea that OSD had some
issues. As a translator (and an author of a translation license 
for which I requested your approval :) I suggest the following:

I believe that the OS software model should be ensure the conformity 
with Berna. As long as this model is fully WIPO/Berna compliant, 
it is applicable under the laws of all the countries under Berna. 
This way there is no need to inform people that the licenses are not 
translatable. This kind of warning only prove that the license itself 
is deficient. Of course, the license must be translatable! :-)

Well, a good way to go with this is maybe to redefine the "software" 
as a "translatable" work and protect it under the PLT/LPT license! :-)
Ok - this almost a joke. Anyway, this kind of solution would grant to 
thousands of users/translators of free software around the world the 
same consideration and rights than for authors. 
Therefore, citizens in their own countries could promote OS and tell
to their governments which is the model they want: an open model, 
and some another about which nobody knows _nothing_ 
(In fact, i wonder if some good lawyer could demonstrate that the 
proprietary licenses are illegal under Berna, precisely because they 
do not allow people to translate and/or disassemble these products!)

The goal is to reverse the progressive assimilation of software 
with Industrial IP. Instead the correct way should be to define
a protection scheme fully compliant with Berna, and to write in front 
of your translatable work (aka "software"), something like this:

UNAUTHORIZED RESTRICTION TO ACCESS, DISASSEMBLY, TRANSLATION OR 
DISTRIBUTION OF THIS SOFTWARE, OR ANY PART OF IT, WILL RESULT 
IN SEVERE PENALTIES, AND WILL BE SUBJECT TO PROSECUTION TO MAXIMUM 
EXTENT POSSIBLE UNDER LAW.(*)


That is, you win.



(*) Note that I translate copyright notices like this once a week 
(without the word "restriction"). There is no need to be certified. 
Of course, the translated notices have the same authority than original, 
in all languages, in all countries, under all Laws. 



Regards

[I.R.Maturana -- Trad En>[ES<>FR] - http://www.in3activa.org ]

(Even if they do not agree with my views, I hope that members 
did appreciate my dominical analogy... :)



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