Don't Let “Intellectual Property” Twist Your Ethos

by Richard Stallman

June 09, 2006

Most free software licenses are based on copyright law, and for good reason: Copyright law is much more uniform among countries than contract law, which is the other possible choice.

There's another reason not to use contract law: It would require every distributor to get a user's formal assent to the contract before providing a copy. To hand someone a CD without getting his signature first would be forbidden. What a pain in the neck!

It's true that in countries like China, where copyright law is generally not enforced, we may also have trouble enforcing free software license agreements, as Heather Meeker suggests in her recent LinuxInsider column, “Only in America? Copyright Law Key to Global Free Software Model.”

However, this is not a reason to press for more copyright enforcement in China. Although we would use it to protect people's freedom, we have to recognize that mostly it would be used by the likes of Microsoft, Disney and Sony to take it away.

Ironically, we might have more success enforcing copyright in China than Microsoft, Disney and Sony—because what we would want to do is easier.

Disney wishes to stamp out semi-underground organizations that sell exact copies. With free software, regardless of precisely which free license is used, that kind of copying is legal. What we want to prevent, when the free software license is the GNU GPL, is the release of proprietary software products based on our code. That kind of abuse is at its worst when carried out by large, well-known companies—and they are easier targets for enforcement. So GPL enforcement in China is not a lost cause, though it won't be easy.

No Chinese Laundry

Nonetheless, Meeker's claim that this leads to a global problem is simply absurd. You can't “launder” material copyrighted in the U.S. by moving it through China, as she ought to know.

If someone violates the GNU GPL by distributing a nonfree modified version of GCC in the U.S., it won't make any difference if it was obtained or modified in China. U.S. copyright law will be enforced just the same.

Although this error might seem to be the central point of Meeker's article, it is not. The real central point of the article is the perspective embodied in her use of the term “intellectual property.” She uses this term pervasively as though it refers to something coherent—something it makes sense to talk about and think about. If you believe that, you have accepted the article's hidden assumption.

Loose Language

Sometimes Meeker switches between “intellectual property” and “copyright” as if they were two names for the same thing. Sometimes she switches between “intellectual property” and “patents” as if they were two names for the same thing. Having studied those two laws, Meeker knows they are vastly different; all they have in common is an abstract sketch of their form.

Other “intellectual property” laws don't even share that much with them. The implication that you can treat them all as the same thing is fundamentally misleading.

Along with the term “intellectual property” goes a false understanding of what these laws are for. Meeker speaks of an “ethos” of “intellectual property” that exists in the U.S. because “intellectual property is in the Constitution.” That's the mother of all mistakes.

What is really in the U.S. Constitution? It doesn't mention “intellectual property,” and it says nothing at all about most of the laws that term is applied to. Only two of them—copyright law and patent law—are treated there.

What does the Constitution say about them? What is its ethos? It is nothing like the “intellectual property ethos” that Meeker imagines.

Failure to Execute

What the Constitution says is that copyright law and patent law are optional. They need not exist. It says that if they do exist, their purpose is to provide a public benefit—to promote progress by providing artificial incentives.

They are not rights that their holders are entitled to; they are artificial privileges that we might, or might not, want to hand out to encourage people to do what we find useful.

It's a wise policy. Too bad Congress—which has to carry it out on our behalf—takes its orders from Hollywood and Microsoft instead of from us.

If you appreciate the U.S. Constitution's wisdom, don't let “intellectual property” into your ethos; don't let the “intellectual property” meme infect your mind.

Practically speaking, copyright and patent and trademark law have only one thing in common: Each is legitimate only as far as it serves the public interest. Your interest in your freedom is a part of the public interest that must be served.

This centre is a fantastic resource for explaining IP.

First off, I'm not a lawyer, I'm not your lawyer, none of this is legal advice. Go get legal advice from a lawyer.

A lot of us know by now a little about how Mickey Mouse being in the public domain (at least in the U.S.) works. You can use the version of Mickey from the animations (Steamboat Willie and Plane Crazy) that entered the public domain this year because they were released in 1928. So long as you:

• Don't use them in ways that would make it seem that your work was made by Disney and
• Don't use any elements of Mickey from later works which are still under copyright.

So no Donald Duck. No Goofy. No gloves. You can't make his pants red. Etc. Right?

However, let me present a few movie posters from 1928 which are now in the public domain:

Yellow gloves! Red pants with both yellow and white buttons! Yellow and brown shoes! And a green hat to boot!

I'd imagine all of these posters qualify as creative works that would have gained copyright protections as soon as they were made/published. And the copyright on these poster illustrations have all now expired, leaving these posters in the public domain. (Copyright-wise, at least. Trademark is a whole other kettle of worms.)

So, theoretically, all the elements you see in those posters should be fair game today. Which leads me to believe that theoretically there's no reason why people who use the public domain version of Mickey Mouse in their own works ought to avoid red pants with yellow buttons or yellow shoes. Yellow gloves are probably similar, but the case for white gloves being safe to use is probably weaker given that the only images I could find from 1928 where Mickey's wearing white gloves are black and white illustrations.

I say "theoretically" because of course law is complex and (again) I'm not a lawyer and who knows what legal arguments Disney's legal department could come up with. But I don't see any reason off the top of my head why using red-pants, yellow-shoes, yellow-gloves Mickey in your own works (so long as you don't include other elements that legitimately didn't become a thing until 1929 or later and didn't infringe on Disney's trademarks) wouldn't be virtually just as safe as avoiding colors when using the Mickey Mouse character.

All that said, I'm definitely open to being set straight on this. I just hoped to get a little discussion going about this.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. . . .

—Thomas Jefferson

Never thought I'd see the day.