Is it really free software ?

Karsten M. Self kmself at
Tue Nov 6 22:34:02 UTC 2001

on Mon, Nov 05, 2001 at 09:40:46AM +0100, DeBug (debug at wrote:
> egc> But if I code some software, register it with the copyright office,
> egc> put a LGPL license on it, put it on the web, and I DON'T get a 
> egc> patent for it, 
> egc> then, YOU shouldn't be able to take my code and patent it,
> egc> just because there's no prior patent art, doesn't mean it's novel.

> Explain me please how copyrights are compatible with free(libre)
> software?

My own stab.

It depends, as Randy and Greg have said, what you mean by "free".  If
you're headed toward "free of any restrictions", the ideal would be the
public domain.  If you're headed toward "restricted in such a way that
the work is always available to other members of the public", you're
headed toward a copyleft concept.  The FSF does a good job of defining
this term:

Most people prefer placing _some_ restrictions on software they
distribute freely.  There are what I call the "fear and greed"
components of releasing software.  Fears are those things you want to
guard against, "greed" is some objective you hope to achieve.

Virtually _all_ licenses include disclaimers of liability and warranty.
The thinking is that the author is distributing something without
directly benefiting from it, why should she be directly harmed by it.
Other "fear" components include ways in which the software, technical
standards, or other aspects of the work or its use, might be used
contrary to the author's wishes.

"Greed" is usually less tightly defined in free software.  I've
identified typical goals as promoting an ideology (the GPL and LGPL fall
into this class), technology (the BSD/MIT style license), or, in some
cases, a business model (the MozPL is a stab at this).

How does copyright fit into the picture?  All original works of
authorship in a very large portion of the world are automatically
covered by copyright at the time of their "fixation".  Some argue that
you simply _can't_ "uncopyright" something -- you have to license it for
free use.  But the fact of ownership in copyright and exclusive rights
therein provides a lever for specifying conditions under which those
exclusive rights are waived (or licensed) to those complying with the
conditions.  Most useful, really.

My analogy is that free software uses copyright in a similar way that a
public park uses real estate.  Copyright defines a work, but the legal
structures around it are set up in such a way that public access is
preserved.  Where necessary, rules to prevent despoiling the work are
set up, in the same way that a park would have rules preventing, say, a
visitor from leaving trash about, preventing others from entering,
disturbing the landscape, or claiming parts of the park for themselves.
Some have called this a case of judo or ju-jitsu IP.

> Explain me please how patents are compatible with free(libre)
> software?

The case is a little harder to make, but there may be ways in which
licensing of patents can be done in a manner that benefits free software,
at least for specific types of licensing, or conditions of use for other
forms of licensing.  Several people have argued (and Raph Levien for one
has done) licensing patents free of use for GPLd software.  There's
little fear of proprietary advantage in this case.  For licenses which
don't require software always be used as free software (e.g.:  BSD/MIT
licensing), the picture becomes more complicated.

The patent issue is certainly troublesome.  I don't feel it's untenable.
It might well be better for free software if it didn't exist, but it's
not a death sentence.

> I somehow thought that the idea of the free software is incompatible
> with both copyrights and patent laws...


My attitude is that aspects of intellectual property law are features of
the legal landscape to be exploited (or muted) by free software.  Some
of the features are more useful than others.


Karsten M. Self <kmself at>
 What part of "Gestalt" don't you understand?             Home of the brave                   Land of the free
   Free Dmitry! Boycott Adobe! Repeal the DMCA!
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