Economic interest in GPL ? [LWN.net]

Economic interest in GPL ?

Posted Aug 15, 2008 1:38 UTC (Fri) by gdt (subscriber, #6284)
In reply to: Economic interest in GPL ? by mikov
Parent article: Why the JMRI decision matters

How does that work for GPL though ? Where is the economic interest?

The court found that there is an economic interest in the Artistic license, and the arguments they used would be apply to the GPL too. The relevant portion of the judgement:

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1200 (11th Cir. 2001) (Program creator "derived value from the distribution [under a public license] because he was able to improve his Software based on suggestions sent by end-users. . . . It is logical that as the Software improved, more end-users used his Software, thereby increasing [the programmer's] recognition in his profession and the likelihood that the Software would be improved even further.").

On Jon's comments regarding copyright license v. contract: contracts also require a consideration -- a payment of something of value -- which is difficult to reconcile with the "free beer" aspect of FOSS. Because this is a grey area (contract consideration is usually simply financial), precedents vary widely between countries and building an international free software movement upon contract law would be much more difficult than using copyright law.

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``Economic benefit'' a time bomb?

Posted Aug 15, 2008 3:19 UTC (Fri) by bojan (subscriber, #14302) [Link]

You should not be worried. Consider this sentence:

> "There are substantial benefits, _including_ economic benefits, to the creation and
distribution of copyrighted works under public licenses that range far beyond traditional
license royalties."

The key word above is "including". So, the court sees that economic benefits are just part of
the copyright holder's interest here.

So, to answer you question: "What happened to a copyright being the right to prevent copying,
period." - nothing. It still there, alive and well.

PS. In case you are wondering what those other, non-economic benefits of doing FOSS may be,
I'll mention just a few: "being smart bragging rights", "being a nice guy rights", "supporter
of community rights", "betterment of humanity rights" etc. All these things are important to
these copyright holders and the court knows that.

``Economic benefit'' a time bomb?

Posted Aug 15, 2008 15:51 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link]

The key word above is "including". So, the court sees that economic benefits are just part of the copyright holder's interest here. So, to answer you question: "What happened to a copyright being the right to prevent copying, period." - nothing. It still there, alive and well.

Sure, it's there. My question is, why was anything else brought into this case at all?

PS. In case you are wondering what those other, non-economic benefits of doing FOSS may be, I'll mention just a few: [....] All these things are important to these copyright holders and the court knows that.

Yes, but, as above, why should the court care?

[Talks through hat.] The only benefit confered by a copyright monopoly is that of society receiving (eventually) another work in the public domain. (Per the U.S. Constitution.) Seems no one else's benefit is involved here. If a piece of Free Software is allowed to be taken proprietary, the author is less likely to create another, thus depriving society ninety-nine (or whatever) years hence.

So, if allowing a license to be flouted reduces the benefit to the public domain, it should not be allowed, and no other considerations, either monetary nor intangible benefits in the present, need, nor should, enter the decision.

I guess that's my core question: why did the judge bring in anything other than ``unlicensed copying bad for public domain, therefore not allowed.''?

Time to go read the decision...

``Economic benefit'' a time bomb?

Posted Aug 15, 2008 17:39 UTC (Fri) by wahern (subscriber, #37304) [Link]

Because since 1978 the public domain ceased to exist?

``Economic benefit'' a time bomb?

Posted Aug 17, 2008 23:57 UTC (Sun) by bojan (subscriber, #14302) [Link]

> The only benefit confered by a copyright monopoly is that of society receiving (eventually)
another work in the public domain.

And for society to receive that benefit, copyright holders are equally promised benefits
coming their way, through the power to exclude.

> Yes, but, as above, why should the court care?

The court cares because the state promised copyright holders would get the benefits, whatever
they may be.

``Economic benefit'' a time bomb?

Posted Aug 19, 2008 8:17 UTC (Tue) by ekj (subscriber, #1524) [Link]

The only benefit confered by a copyright monopoly is that of society receiving (eventually)
another work in the public domain, you say.

That's not actually true. If it was, there would be no reason to have copyright at all for
software. The eventual benefit, another program in the public domain in a hundred years (give
or take a few decades) has essentially zero value. 

But there is one benefit more; copyright stimulates (or is meant to, anyway) the CREATION of
creative works. The theory goes, if we didn't have it, less books would get written, less
software created. Having the book written is beneficial to society -- even before it falls in
the public domain.

We're paying a much too high price though. Does anyone HONESTLY believe that much less
software would get created if copyright was only, say 20 years ? I sure as hell don't. If we
could get the same for a lower price, why then, do we persist in paying the higher price ?
It's just downright silly.

For GPL it's ever easier

Posted Aug 15, 2008 7:22 UTC (Fri) by khim (subscriber, #9252) [Link]

US Code Collection, Title 17 (copyrights), Chapter 1, Section 101: 'Definitions': 'The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.'

GPL is created around this "expectation of receipt" of other copyrighted works. It's GPL's much discussed "viral nature". When the law itself claims it's called financial gain it's kinda hard to imply it's not "economic benefit". But yes, if you'll find gullible judge anything is possible - but that's the fact of life.

financial gain should be pretty easy to demonstrate, regardless

Posted Aug 15, 2008 17:42 UTC (Fri) by stevenj (guest, #421) [Link]

Even without that, it should be pretty easy to demonstrate financial benefits to authors of free software. For example, I personally have received job offers, consulting contracts, speaking invitations (which in turn improve my professional prospects), etc. as a direct result of free software that I've written. I suspect that authors of any widely used free software have similar experiences.

``Economic benefit'' a time bomb?

Posted Aug 23, 2008 0:55 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

What happened to a copyright being the right to prevent copying, period.

What happened to it? It just never existed. Who told you it did? There isn't much in modern law that is just an absolute no-questions-asked rule. Laws have roots in reason and as Jon says, for US copyright law, those roots are economic incentive. So yes, courts will always go back to that when interpreting copyright law. They don't want a law to turn into some monster that does things it was never intended to do.