No community mandate [LWN.net]

No community mandate

Posted Sep 1, 2005 7:57 UTC (Thu) by Wol (guest, #4433)
In reply to: No community mandate by FlorianMueller
Parent article: On the defense of piracy enablers

As the success of open source shows, there are always authors who are willing to cede some of those rights and publish their works under more consumer-friendly licensing terms, but within reason, they should be given the choice.

No disrespect to Florian, but he seems to miss two points. The anglo-saxon judicial code is exactly opposite to the Napoleonic Code (which also explains why the UK is such a difficult member of the EU). The Napoleonic code says "if it isn't explicitly permitted, then it's forbidden". The Anglo-Saxon code says "if it isn't explicitly forbidden, then it's permitted".

Florian also seems to have missed that pretty much ALL of the "rights" he is trying to defend, are invalid under the US constitution. The only justification for copyrights is to ensure that "creative works" pass as quickly as possible and in as large a quantity as possible into the Public Domain. Given this requirement, juxtaposed with the fact that if Blizzard shut down their servers this game would become unplayable, I just cannot see how what Blizzard is doing is justifiable under the constition.

It's all very well Florian saying "we are a minority view", but in order to impose his view on America he will need to change the constitution. I don't see how his view is going to gain the necessary majority to do that ... Oh - and I also find it "difficult" to take him seriously when he goes on about "America should ignore American legal precedent when discussing a totally American case, but should bow down to a German precedent" (when German law doesn't even recognize the concept of precedent - certainly not in the Anglo-Saxon "binding case law" sense!). Florian - when discussing a foreign case, DON'T drag your own law into it (other than as a "compare and contrast" or "we do things differently here" example). Just because you're different doesn't mean you're right - especially when your viewpoint is at odds with the highest law in the relevant land - namely the US Constitution.

Cheers,
Wol

(Log in to post comments)

The question is who missed the key points

Posted Sep 1, 2005 8:16 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

By entering late into a discussion that already seemed closed, one always has the risk of saying something pointless because it's been addressed before. That may just have happened to Wol.

I acknowledged the difference in legal systems, also between author's rights and copyright, about a week ago. However, it's totally irrelevant to this case because Blizzard had expressly reserved the rights that I was talking about, through its EULAs and TOUs, and the courts found those agreements valid, enforceable and perfectly reasonable, while the EFF claimed that they constituted "copyright misuse". (And in that context, all of the questions that I raised come up: Does the copyright holder, because of a profit motive or for other reasons, impose too restrictive terms or is it in his right to do so?)

The thing is that if someone has a right, he has it, whether it's the constitution of the respective country, some other written law, case law or an agreement on the grounds of which he has that right.

Even the case with the German architect served the purpose for which I mentioned it. A U.S. architect may have to reserve that respective right under an agreement, but does it matter? I just said that if someone has that right and insists on it, those who want to modify his work have to rebuild something new (if they can).

As for the U.S. Constitution, I've previously explained that it's the constitution of a free market economy and not of a communist state. Consequently, the progress of science and the useful arts must always be viewed against the background of a free market economy. You won't find judges today that believe people, let alone companies, only contribute to science and the useful arts on a pro bono basis. The profit motive is clearly viewed by politicians and judges as key to the progress of science and the useful arts. That doesn't mean to say that there would be no progress without commercial ambitions, but the general line of thought is that in some areas there'd be a lot less progress. Consequently, no one has to change the U.S. Constitution.

The question is who missed the key points

Posted Sep 1, 2005 8:29 UTC (Thu) by Wol (guest, #4433) [Link]

The reason the discussion has re-opened is because (if you hadn't noticed) I'm not a subscriber. This article has been available for me to view for, what, about 9 hours.

As for the US being the "constitution of a free market economy", isn't it BY DEFINITION not a free market economy if it involves copyrights, "droit d'auteur", or patents?

And I'll add, while I am unaware of Blizzard's EULA or TOU, hopefully this case, when appealed, may declare things like EULAs to be "contracts of adhesion" and therefore void. One of the big problems with UCITA was that it declared EULAs valid whether or not the customer had the opportunity to read it before voiding their refund rights by opening the package...

Cheers,
Wol

The question is who missed the key points

Posted Sep 1, 2005 8:43 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

OK, thanks for the information about the reopening of the discussion.

I had already left the discussion and I don't intend to comment too much here now that it has reopened, but let me say this: I don't think we disagree on the question of whether IPRs *can be* and *indeed are* misused by some. Also, I don't see any comments here that consider every form of IPRs automatically something illegitimate, but references to the gnu.org manifestos are dangerously close to that with respect to software.

I, personally, think it's more difficult to challenge the patent system in a field like pharmaceuticals where there is no other proven form of protection, and clearly a high up-front investment required for R&D. I know that there are cases of misuse, and spurious and fraudulent patents, even in that space, but it's a tall order to demand the replacement of the patent regime with something completely different in that field.

As for software-related legislation, my approach in discussions with politicians is that intellectual property is generally a good thing and authors (like me) should receive a maximum level of protection, but let's look at where IPRs run counter to their purpose. For instance, if patents can be used to expropriate a copyright holder, then there's a conflict even within an IP-is-great framework. In my experience, the only basis on which politicians (except a very few on the left margin) are prepared to discuss the idea of abolishing software patents is if at the same time the benefits of copyright are highlighted.

There are some signs now that the European software patent debate may restart. A vice chairman of the Legal Affairs Committee in the European Parliament, Rainer Wieland MEP (a German conservative, but unlike other German conservative MEPs, he's not completely unreceptive to our points), has published a column in a German magazine in which he says he's going to push for a new attempt at clarifying the status of software patents in Europe. Some MEPs show symptoms of severe battle fatigue and would rather not touch that hot iron again, so it remains to be seen what will happen and when. However, in case it does restart, my preference would be for a legislative project that addresses software patents and copyright, and possibly even a sui generis protection, in a holistic sense in order to have more structural flexibility to meet the needs of creators while ensuring that the market stays competitive.