Copyleft as regulation

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Copyleft as regulation seems to me an easy way to begin thinking of bridging from thinking of private policy to public policy (plus, folks can stop arguing over whether copyleft is a ‘restriction’ or not, and start arguing about whether it is a good and effective regulation). Recent paragraph:

Copyleft is most usefully considered as a prototype for and test of rules that ought be enforced by more effective regulatory mechanisms. Whether you think software provided without source and permissions should be totally banned, not regulated at all, or only regulated for particular uses or in particular fields (e.g., products and services already subject to other safety, disclosure, and pro-competition or consumer protection requirements), it is absurd to think that developer whim and resources in applying and enforcing the GPL regulates and regulates effectively an optimal set of software. It is time to move beyond debate of a hack of state-deputized private censorship as central to software freedom politics and policy, and on to debating directly state vs. market regulation of software (with all the usual arguments about (in)adequacy of market provision and harm/help of state intervention) as in any field of importance, preferably with very strong commons-favoring bias from both sides (e.g., software freedom market-skeptics and state-skeptics ought agree that regulation by private censorship, which serves proprietary interests almost exclusively, be wound down, and that state entities self-regulate by mandating software freedom for everything they acquire and fund).

I like this line of thought. I have made arguments which I think of as along similar lines, in trying to convince people that copyright licensing is not politically neutral and that this isn’t crazy.

Lots of organizations usually characterized by inertia–governments, academic/cultural institutions, large companies–have adopted FLOSS licenses for some aspect of their operation, sometimes even all of it. The fact that they’ve done so is an indication that for some reason (whatever that reason is–maybe externally-imposed, even) the current default scheme of regulation is not the optimal solution for their needs, by their own determination. We’re not far then from it being reasonable to question whether the current default scheme is the best for the general needs of society–with the understanding that there could be contractual and licensing-based overlays for those whose needs are not met by whatever new default existed, as the FLOSS solutions currently are. The simple choice of using a legal mechanism to override the imposed defaults on a standardized, organizational scale is a statement about the suitability of those defaults for their purposes. In particular, using a standardized one in order to participate in a commons is leaning toward a political choice.

(Though I am dubious about promoting the overlays: it was a copyright abolitionist who made me most skeptical about copyright abolitionism, by saying that the market would step in and provide solutions where the government-imposed monopoly no longer existed. The market is already stepping in where those annoying exceptions and limitations might come in, by allowing rightsholders to supply terms of use that go beyond the bounds of copyright, and to impose technological measures that cannot be legally broken. But I’m not sure anything would be made worse; this knowledge already exists and is widely used.)

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Completely agree with your second paragraph. More people need become aware of their complete agreement. :smile:

Regarding overlays, my concern is more short-term: “we” (free/open movements) obsess about the overlays and don’t see them as prototyping public policy we want and demand. Much longer term, I’m totally happy with shifting the burden of relying exclusively on overlays away from those who want to share to those who want to enclose. Sure the enclosers will still be creative and abhorrent. Pro-regulatory folks (which source-requiring copyleft advocates are a dwarfish form of) need to craft and advocate for regulations which constrain such behavior.

This reminded me of a proposal I made for a workshop during the 2012 Global Congress on Intellectual Property and the Public Interest, but that got rejected:

There is a growing number of citizens, communities and enterprises that, in one form or another, outright refuse the idea that State and market, in collusion or individually, should be allowed to restrain the flow and use of information, be it knowledge or culture, theoretical or applied.

This workshop will discuss proposals and ideas to implement regulatory environments that democratically respect the will of these communities while, at the same time, preserve the current structures that also represent the interest of other segments of society.

In particular, a proposal will be discussed for an opt-in alternative rights system, where individuals who publicly waive their intellectual monopoly rights are rewarded by lifting the weight of those monopolies over them and their work.

We’ll also discuss ways through which those who agree with this proposal can act to promote it, for example changing public opinion by building a scalable movement of people who commit, as much as possible under law, to waive copyrights from all their future works under certain conditions.

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Your proposal looks excellent to me. Any idea why it was rejected? It reminds me of a couple things:

  1. The ideal incremental commons-favoring reform only liberalizes things for commons-based production. For example, instead of limiting software and business method patents generally, make free/libre/open projects immune from them. But lots of copyright and patent reform proposals could be tweaked to ensure they benefit commons-based production, and only benefit commons-based production; “lifting the weight of [intellectual] monopolies over [commons-based production]” would be a good way to put it.
  2. Strong copyleft (or in the case of patents, any free/libre/open license with an appropriate patent clause) privately prototypes (1) but only for individual works. I’d like to see private prototyping go beyond individual works; operating at the individual person or entity level through pledge and club-like mechanisms is an obvious next step and I guess the private version of what I think you proposed to discuss. I don’t know that anything is happening with the Defensive Patent License and I think it is flawed for not being aligned enough with commons-based production but it at least explores the space. I’ve been reticent to publish license proliferation ideas … but I have a bunch of them that are aimed at illuminating the difference between the deregulatory and regulatory roles of current licenses and the way these prototype public policy. Possibly in the vein of your idea, I imagine an Intellectual Freedom Pledge and an Intellectual Freedom Transition Club, roughly public domain and copyleft at individual or entity level.

Well, they didn’t provide any feedback. But it was likely rejected because the congress turned out to be a very reform-oriented and lawyer-centric meeting.

I still hope to see something along this line happen, your points are quite in line. I wish I had more time to put into this…