[cc-licenses] Unbundling the GPL

Terry Hancock hancock at anansispaceworks.com
Wed Apr 25 21:54:03 EDT 2007

drew Roberts wrote:
> On Wednesday 25 April 2007 07:14 pm, Björn Terelius wrote:
>>Exactly, I dont think there is (or rather should be) any moral/ethical
>>difference between licensing software and art.
> Have you bothered to read RMS's point on the matter? Do you think that the 
> moral/ethical situation/standard re software needs to be lowered? Or do you 
> think the moral/ethical situation/standard re art needs to be raised?

The true distinction is not between "software" and "art" or "creative"
versus "non-creative" (software can be very creative).

The distinction is between works of high utilitarian-value versus works
of high aesthetic-value.

Aesthetic works have particular distinguishing characteristics:

1) They are not interchangable. If my daughter wants "Disney Princess"
character goods, no amount of "Generic Princess" goods will do -- they
are just "fakes".

Because of this, we tolerate the licensing because we are less willing
to restrict ourselves based on it -- giving up access to an aesthetic
work makes you culturally poorer, whereas it has no impact for
utilitarian works: I give up nothing by using Open Office instead of MS
Word, so I am both less harmed by the licensing of MS Word, and less
likely to tolerate MS it. OTOH, I do indeed buy Disney DVDs even though
I dislike their business practices.

Thus for aesthetic works there is a stronger case for changes in
copyright law rather than a licensing movement.

2) They do not help me to produce value unless I sell or reproduce them.
I cannot "use" them to make money. The closest to this is "public
performance" -- but that is also a copyright-controlled act!

Because of this, "Free" aesthetic works are lacking in the most
successful business models of utilitarian works (of which software is
only the earliest and most successful example).

The justification for non-free terms is that, without them, the works
wouldn't exist at all. This statement is demonstrably untrue for
software (a lot of free software is making a lot of people a lot of
money right now), but it may well be true for aesthetic works.

This distinction also has the advantage of explaining curious exceptions
like Wikipedia. The reason Wikipedia is so successful is because an
encyclopedia is a *utilitarian* work. This is also true of the various
documentation projects.

Because aesthetic works have this handicap, we can argue that it is more
morally defensible to restrict freedoms for them in the name of
promoting production.

OTOH, while I can appreciate the limitations of the model, I also can
appreciate the advantages of truly free distribution for aesthetic
works, so long as they can be paid for in advance. Patronage and
collective patronage models are the way to go for that.

In fact, the original US copyright law can be viewed as a "collective
patronage" arrangement -- if the final public domain state of the work
is viewed as the objective (which is indeed what the US Constitution
wording implies), rather than the way it is viewed by forever-copyright
apologists (as failure a to recoup all benefits to the author's heirs).

Viewed in the original sense and combined with a more open definition of
"fair use", it's a fine system -- it's basically the "sunset
non-commercial" proposal that I described sometime back.

Other models are possible, of course, like all the variations on
"passing the hat", and of course the "hostage license model", which is a
good idea for serial works (though it really needs a better name!).

Trying to use NC/ND licenses for software though, is even more niche,
and less-defensible (and less competitive) because we know there is a
better way to promote production, which is very successful. In this
context, it's hard to justify the restrictions, because they are
"unnecessary evils".


Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com

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