Morosoph's Journal: Linus Still Wrong on GPL Version 3

For the record, so was I; I believed that the anti-DRM provision was opposed to all DRM, rather than just DRM that specifically preventing modified versions of the code from running "turning freedom number one into a sham", in Stallman's words.

For those who missed it, there was an article on the front page Linus Speaks Out On GPLv3, but I went to Groklaw directly, since Slashdot sucks for insightful commentary.

Linus is making some of the same philosophical errors that I took him to task for a few months ago, but has added to that a certain naivety about the legal process, and labelling the goal of maximising freedom as "extreme".

Maximising freedom may well be an intellectually extreme position, in that it isn't a blend of several positions, but it is not a politically extreme position, in that it is what a large number of political activists attempt to do, although the trade-offs are not always agreed (this is not true of politicians, who also seek power for themselves and to favour their benefactors). The idealism of the French flag reflects exactly this position: liberty, equality (the basis for trade-offs), fraternity (sharing the fruits of the work done). I suspect that Tolvald's opposition to the FSF's "crusading" is in fact in opposition to a highly American view of freedom, but the freedom promoted by the GNU GPL is more of the anarchist's view of freedom than the capitalist's, when taken to extremes. Naturally, it isn't in fact anarchistic, for it uses law to maximise freedom.

What about his naivety? It is two-fold. First, he is applying an engineering fix to a political problem, thus the bug (in the DMCA etc) is legislative, and therefore the fix is legislative. This stance is reasonable given legislators that actually listen to their constituents, and wish to deliver the best set of laws that balance their interests, and if they are out of balance, they will attempt to restore that balance in future legislation. If you think that this is what legislators do, then the GPL version 2 is the right one for you, for you will always have the right to reverse-engineer, and the protection of intellectual property will only go as far as is necessary to provide a sufficient incentive to create, without being overly onerous upon further innovation.

Secondly, legislators are not the only ones who shape law. Take the recent action of France's Supreme Court to savage fair use rights. Crusty old judges, I'm afraid, are exactly the types who are most likely to miss the difference between theft and copyright infringement, ignore the economics (since the issue is couched in moral and legal terms), and overcompensate for imagined loss by handing out fines proportional to the infringement. (For the record, I favour proportional fines and|or sentences for making money from piracy, for then it is diverting spending that would have otherwise have been spent upon original work, and therefore is theft), but that is not the issue that I wish to raise today. Fines for copyright infringers are one thing, but what we see is a wholesale attack upon the entire concept of fair use, the right to reverse engineer, and more. The "proportional" response has included an "acceptable" degree of collateral damage, but economic competence would have led to the conclusion that the response was in fact disproportionate.

Given legislation from the bench, legislation through contract is entirely appropriate. I do not wish leave it to my government to defend my freedoms; I also wish to defend it through my own actions, and the rights that I give to people to make use of my work. This is not an extreme position; it is a position that I accept the social contract as decided at such times as the birth of nations, and wish to do my own part to revitalise and uphold my side of that contract.

Footnote: Tom Hudson has said plenty in support of Linus's stance. I think that the best, and simplest response was given by WNight.