Subject: RE: The Feudal Lord Analogy
From: "I.R.Maturana" <irm@myrealbox.com>
Date: Sun, 24 Mar 2002 03:09:05 +0100

>     My Lord, you should re-read any Internet FAQ about list usage, 
>     in particular, about people sending void, non-useful messages.
> 
> The propaganda term "intellectual property" does a lot of harm, and
> explaining this problem is useful, in my opinion.  Your opinion may be
> different.

Let us go ahead with the thread, then ! ;))

The thread was not really centered on opinions but on solutions.

I agree when you say that IP terms applied to OS and !OS software 
generate more issues than solutions. 

I disagree probably with you if I add that these issues exist in
the whole software licensing scheme. In fact, the main issue 
pertains probably to the definition of "software works" 
under IP-Laws. 

I resume my analysis and invite members to search solutions together.

===

Since the beginning, software works were placed under the protection
of Copyright Laws. The copyright is a protection granted by States to 
authors, but the rule is that the same Laws also protect the freedom 
of citizens on behalf the "public interest". IP-Laws equally protect 
author's rights, and licensees' rights to do self-translation, 
self-disassembly, self-copy, and so on. 
Based on the same rationale, IP-Laws also assert the equality of rights 
of aythors and derivators on their respective published versions, as 
soon as authors allows these derivations.

Authors and Companies can try to forbid and threaten people, they can 
use legal phrasing or even poetic style (maybe this would be effective :)
-- all these restriction clauses are void as long as the self-use of 
the work does not offend they commercial rights. This is fair use.
In short: ideas and algorithms are not copyrightable.

When companies understood this issue in 90th, they attempted to make
some managing in IP-Laws and practically destroyed the protection 
of individuals authors of software. We assist now to the general attempt 
of software companies, seconded by Media companies, to place 
"software works" under the more secured model of Industrial Patents. 

Personally, I do not believe they will succeed. But they will 
probably destroy a little more the actual balance between 
public interest and authors' rights. All this stuff will probably
end with some Software-IP-Exception Laws with no benefit at all
for any individual developers.

===
Here is my three step analysis 
(and an abstract of the PLT/LPT genesis)

First, the true difference between both OS and !OS models is that 
 OS author's purposes connects directly with the IP-Laws premise of 
 "public interest". 
 In my opinion, some OS licenses have developed this strong, very 
 strong idea that the classic "public domain" under Laws can be 
 efficiently completed by some "publicly owned domain". 

 The idea is that an author can define the boundaries of a
 specific Public Domain based on his/her individual legitimacy. 
 Author's legitimacy acts like "derived class" of the People legitimacy.
 Really, I believe this a new, very strong idea, and a very good 
 interpretation of IP-Laws. Chapeau :-)

 But there is a mistake somewhere in the actual formulation of this 
 idea. An author has no need to "grant freedom" to anyone, because 
 this freedom is _already_ granted by Laws, and these Laws are 
 the same from which the Author's right are derived.
 If we follow the correct rationale, an author cannot "grant rights" 
 to licensees. This is because the rights owned by authors are 
 originated from Laws, which in turn are edicted by the licensees !

 In C, derivate classes cannot grant permissions to base classes, 
 instead member access is bounded by base classes. 

Second, as far as the Feudal Lord Analogy is true, the license 
 protection scheme is the same for OS and non-OS software.
 Thus, we are running under the paradox that the Laws which apply 
 today on non-OS software, will apply tomorrow on OS software as well. 
 This is no good.

 This paradox appears clearly in licenses as manifest inconsistencies: 
 denial of all translation derivation rights (this way, despite their 
 public terms, some OS licenses deny _all_ derivation rights); denial 
 of legal validity for the translated license itself; denial of legal 
 validity for any laws other than the country law, which contradicts 
 the international basis of IP Treaties. Etc.
 I don't know how these licenses can still invoke IP-laws protection.
 But I understand that confidence is mutual, and nobody protest, yet.

 The good new, anyway, is that the same inconsistencies apply for
 non-OS license classes. 
 As RMS often wrote, it is abnormal that an IP-protected author 
 forbid his licensees to know the underlying ideas or algorithms.
 Yes IP-Laws assert clearly that ideas and thus algorithms are 
 free under IP-Laws. Yes the cost argument does not allow authors 
 to compromise public interest in knowledge and advancement.
 But I shall add immediately that the way to solve this anomaly 
 was (in the early 90th) to sue non-OS authors in a tribunal, 
 rather than trying to reproduce the same anomaly with a shadow 
 license. I easily imagine that no Company were interested to 
 proceed this way, because this would also had enforced the obligation
 to open their own sources. Today, after Companies' exploit in 
 software IP-Laws, I do not know if this possibility still exists. 
 (Perhaps in Europe, and tribunal costs are cheaper than in US)
 
Third point, I think the true solution to the license paradox, 
 and the true way to enforce the original idea of the author's 
 "publicly owned domain", is to develop the principles of a
 Social Contract. Some OS licenses are close to this idea.

 But I say a _true_ social contract. A contract is a particular 
 law under which all the parties are _equal_ in rights and 
 have _equal_ obligations _freely_ agreed. This definition implies
 that authors and licensees start on the idea that procedures
 will regulate (voting) consensual decisions.
 Most members will remember from their scholarship that this 
 Social Contract model is also the foundation of our respective 
 Constitutions and the origin of our freedom as citizen under Laws. 
 Thus, my solution -- and a straightforward derivation of the 
 RMS' intuition :-) -- was to rethink authors' licenses as legal 
 Constitution Domains which apply inside the boundaries of the 
 author work. The visibility of this Constitution Domain will
 simply extend progressively to each version of the derivative works. 

 These Constitution Domain Licenses are legal, because they comply 
 ultimately with legal requisites of true contracts, and because 
 authors and licensees are free citizen under Laws. They are also 
 protected by Laws, because IPLaws are the true source of the 
 authors' legitimacy to define the Domain license where their works 
 are protected.

===

 Of course, as a translator, I developed the idea under the 
 translation perspective. However, while analyzing the software 
 issues, and because I started from the RMS' historical discovering
 I oftentimes thought that most, or maybe all the ideas of the 
 LPT/PLT, along with the procedures in the Chart of Translators & 
 Interpreters, could be easily applied for software works. 

 Here, I follow the idea that translation is the "mother of all 
 derivations", and that software is nothing but a special kind 
 of "translatable work". Thus, considering software as a translatable 
 work implies that software authors could restore their full 
 individuals rights under IP-Laws. 
 Since nobody protested about the OS inconsistencies and the ruin 
 of their authors rights, I presume that nobody will protest if 
 now we find a way to restore the software authors rights !
 
 I also notice that translators (OS volunteers ans non-OS professionals) 
 all around the world would find very interesting this kind of 
 alliance under the "translatable" paradigm.
 You are the condition of the information power, while translators 
 are the condition of intellectual power. Without programmers or 
 translators, this is difficult, and probably impossible to understand 
 the modern world.

 Other non-OS software authors would have only the alternative: 
 either protect their non-OS software under the ruins of 
 software-IP-Exceptions, or adopt some Constitution Domain. 
 And imagine their problem if for whatever reason, for example because
 Companies do not respect software translation rights, translators 
 all around the world do not more accept to translate their works ? 
:-D)))))))


That's all. I described my points about freedom source, IP-Laws 
protection scheme, and licenses paradox. I suggested that the
translatable works paradigm can be used to restore the ruin of the 
software individuals authors' rights. I think you have all the 
answers and among as a lot of people around the world, I think 
it's time to work efficiently. It's time to win.



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


Note: the Public License of Translation discussion may be
commented here, if finally somebody consider to approve it :-)

But I imagine that procedures of the Chart of T&I would be best 
suited on another list. If somebody is interested on this work, 
I will be happy to create or join another mail-list :-)



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