Copyright is essential to the anti-copyright people

As I’ve been digging more and more into licensing issues surrounding free and open source software, I’ve been surprised at how much the free software movement, and the copyleft movement in general, rely on copy right to enforce their ability to undermine copyright.  David Post, blogging at the Volokh Conspiracy, made this point very well in a post today:

Open source software – paradoxically, or perhaps only ironically – is entirely dependent on copyright for its legal foundations. The entire open source system relies on a complex licensing scheme (of Stallman’s invention), under which open source software is distributed under a special license that (a) gives all users certain rights (to use, copy, and modify the software) and (b) requires that any re-distribution include the same provision giving users those rights. It’s a kind of recursive non-proprietary licensing algorithm – quite ingenious.

What many people don’t understand about open source licenses is that they can be (and are) enforced by asserting a claim of copyright infringement against violators, not merely a claim for breach of contract. That is, if you take open source code and copy it and modify it and then re-distribute it without the provisions providing your users with the rights set forth in the license that you received, you will be infringing the copyright in the underlying work (in addition to breaching your contract). That principle was reaffirmed recently by the Federal Circuit, in the Jacobsen v. Katzer case, and it is of fundamental importance to the whole open source movement. Why? Because a breach of contract action is virtually worthless as an enforcement device, while a copyright infringement action is a powerful weapon indeed.

The rest of the post is interesting, too, as it discusses Post’s take on a talk given by Richard Stallman about how to reform copyright law.  I would not go so far as to say that I think the copyright system is fundamentally broken, but I am interested to see Stallman’s proposal for shortening copyright terms.  I do tend to think that shortening the default copyright term, or requiring increasing maintenance payments to extend the term (as with patents),  could go a long way to alleviate the burden of clearing rights for new works.