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Various improvements to the section on copyright,

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in particular including links to the USC.
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Bradley M. Kuhn 2014-03-15 13:40:54 -04:00
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@ -304,48 +304,60 @@ to serve that sub-community.
\section{How Does Software Become Free?}
The last section set forth the freedoms and rights respected by Free
Software. It presupposed, however, that such software exists. This
section discusses how Free Software comes into existence. But first, it
addresses how software can be non-Free in the first place.
The previous section set forth key freedoms and rights that are referred to
as ``software freedom''. This section discusses the licensing mechanisms
used to enable software freedom. These licensing mechanism were ultimately
created as a community-oriented ``answer'' to the existing proprietary
software licensing mechanisms. Thus, first, consider carefully why
proprietary software exists in the first place.
Software can be made proprietary only because it is governed by copyright
law.\footnote{This statement is a bit of an oversimplification. Patents
and trade secrets can cover software and make it effectively non-Free,
one can contract away their rights and freedoms regarding software, or
source code can be practically obscured in binary-only distribution
without reliance on any legal system. However, the primary control
mechanism for software is copyright.} Copyright law, with respect to
software, governs copying, modifying, and redistributing that
software.\footnote{Copyright law in general also governs ``public
performance'' of copyrighted works. There is no generally agreed
definition for public performance of software and both GPLv2 and GPLv3
do not govern public performance.} By law, the copyright holder (a.k.a.
the author) of the work controls how others may copy, modify and/or
distribute the work. For proprietary software, these controls are used to
prohibit these activities. In addition, proprietary software distributors
further impede modification in a practical sense by distributing only
binary code and keeping the source code of the software secret.
Proprietary software exists at all only because it is governed by copyright
law.\footnote{This statement is admittedly an oversimplification. Patents and
trade secrets can cover software and make it effectively non-Free, and one
can contract away their rights and freedoms regarding software, or source
code can be practically obscured in binary-only distribution without
reliance on any legal system. However, the primary control mechanism for
software is copyright, and therefore this section focuses on how copyright
restrictions make software proprietary.} Copyright law, with respect to
software, typically governs copying, modifying, and redistributing that
software (For details of this in the USA, see
\href{http://www.copyright.gov/title17/92chap1.html#106}{\S 106} and
\href{http://www.copyright.gov/title17/92chap1.html#117}{\S 117} found in in
\href{http://www.law.cornell.edu/uscode/text/17}{Title 17} of the
\textit{United States Code}).\footnote{Copyright law in general also governs
``public performance'' of copyrighted works. There is no generally agreed
definition for public performance of software and both GPLv2 and GPLv3 do
not govern public performance.} By law (in the USA and in most other
jurisdictions), the copyright holder (most typically, the author) of the work controls
how others may copy, modify and/or distribute the work. For proprietary
software, these controls are used to prohibit these activities. In addition,
proprietary software distributors further impede modification in a practical
sense by distributing only binary code and keeping the source code of the
software secret.
Copyright law is a construction. In the USA, the Constitution permits,
but does not require, the creation of copyright law as federal
legislation. Software, since it is an idea fixed in a tangible medium, is
thus covered by the statues, and is copyrighted by default.
Copyright is not a natural state, it is a legal construction. In the USA, the
Constitution permits, but does not require, the creation of copyright law as
federal legislation. Software, since it is ``an original works of authorship
fixed in any tangible medium of expression ... from which they can be
perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device'' (as stated in
\href{http://www.law.cornell.edu/uscode/text/17/102}{USC 17 \S 102}), is thus
covered by the statues, and is copyrighted by default.
However, this legal construction is not necessarily natural. Software, in
its natural state without copyright, is Free Software. In an imaginary
world with no copyright, the rules would be different. In this
world, when you received a copy of a program's source code, there would be
no default legal system to restrict you from sharing it with others,
making modifications, or redistributing those modified
However, software, in its natural state without copyright, is Free
Software. In an imaginary world with no copyright, the rules would be
different. In this world, when you received a copy of a program's source
code, there would be no default legal system to restrict you from sharing it
with others, making modifications, or redistributing those modified
versions.\footnote{There could still exist legal systems, like our modern
patent system, which could restrict the software in other ways.}
patent system, which could restrict the software in other ways, as well as
technical measures, such as binary-only distribution, that impeded such activity.}
Software in the real world is copyrighted by default and is
automatically covered by that legal system. However, it is possible
to move software out of the domain of the copyright system. A
copyright holder is always permitted to \defn{disclaim} their
copyright. If copyright is disclaimed, the software is not governed
automatically covered by that legal system. However, it is possible
to move software out of the domain of the copyright system. A
copyright holder can often \defn{disclaim} their
copyright. If copyright is disclaimed, the software is not governed
by copyright law. Software not governed by copyright is in the
``public domain.''