Re-using copyrighted code

[Steven D'Aprano]

On Sun, 09 Jun 2013 14:08:54 -0700, Mark Janssen wrote:

> I'm sorry, this is just the way it is -- everyone's just gone along with
> the program tacitly because they get intimidated by the legal system. 

Your definition of "just the way it is" does not agree with mine. You're 
describing how you *want* copyright law to be, rather than how it 
actually is.

I've noticed something abut the difference between progressives and 
liberals, compared to a particular type of American conservative. You 
know the ones -- they're big on states rights, "Don't Tread On Me" 
bravado, repealing income tax, guns, god, and the right to refuse service 
to anyone they like. (And they never, ever, not in a million years, 
imagine *themselves* as the one being discriminated against.)

When progressives and liberals find a law they don't like, they 
invariable argue that the law is unjust or unfair, or even illegal, and 
that it should be repealed or fixed. They say things like "repeatedly 
extending copyright terms retroactively goes against the stated purpose 
of copyright, it is harmful to society as a whole, and we should stop 
doing it every time Mickey Mouse is about to enter the public domain". Or 
they say, "Fair use is important, and the courts ought to strengthen it 
rather than continuing to weaken it as they have been."

In other words, they distinguish between how things *are* and how they 
*should be*.

This particular subset of American conservatives, on the other hand, 
argue differently when they find a law they don't like. Rather than say 
that copyright terms *ought to be* for 28 years, like in the good old 
days before Disney bought the United States Congress, they say things 
like "copyright lasts for 28 years, don't let the courts intimidate you 
into believing differently". Rather than say that fair use *should* allow 
you to make a copy for personal use, they say things like "fair use lets 
you make a copy of anything for personal use, that's just the way it is, 
if you think different you've been intimidated".

It's a fascinating difference.

On the one hand, their recognition that ultimately all laws and rights 
boil down to the question of who is best at imposing their will via the 
application of force is refreshingly realistic; on the other hand their 
need to explicitly refer to it as often as they do is rather worrying.

So, coming back to reality, copyright law, as it is enforced (when you 
come down to it) by men and women with big guns, does not allow you to 
make personal copies of anything you like as "fair use". The precise 
details of fair use differ from country to country, but generally fair 
use allows you to make a copy of a *small* portion of a work, for the 
purposes of (e.g.) academic commentary, reviews, parody or criticism. 
Transformative fair use (e.g. remixing and sampling) is often right on 
the edge, and therefore legally risky. E.g. even if taking a small sample 
of a song and inserting it into your own music falls under fair use, in 
practice the courts usually side with whoever brings the most lawyers, so 
it is cheaper to just pay a licence fee up front. Personally, I think 
that's terrible, but that's the way it is at this moment in history.

Of course, in practice copyright law is not always enforced. Many people 
have created mix tapes of songs recorded from the radio, which is as 
clear a case of copyright infringement as there is, but very few of them 
have been sued. The internet is full of people torrenting movies and TV 
shows, and only a tiny proportion have been sued, but those that have 
often lose an exorbitant amount compared to the actual economic harm 
committed. Ripping a CD to your iPod is strictly illegal in most 
countries, but unlikely to be pursued; ripping a CD and then selling 
copies of the mp3 over the Internet will likely have the police come 
knocking unless you're in a part of the world that doesn't recognise or 
enforce copyright.

So there is often a difference between what the law says and what the law 
actually enforces.

But bringing it back to the original topic, I believe that the philosophy 
of FOSS is that we should try our best to honour the intentions of the 
writer, not to find some legal loophole that permits us to copy his or 
her work against their wishes.



-- 
Steven