Do Not Ask The Butcher To Protect The Lamb

[Ben Finney]

On 14-Mar-2006, Andreas Roehler wrote:
> No-one should use a right against an other one, if he hadn't a harm
> caused by this violation, even if the other one violated his right.
> 
> The reason is, that rights - and laws denying or granting them - are
> no values by them-self, but derived from the interest to live in
> peace and without harm.
> 
> If there is no harm, you should not start a legal strive.

This is tautological. Every party bringing legal suit does so on the
basis that they have suffered harm. We have no process above the legal
process to determine what harm, if any, was done.

> Respectively: if there are big harms and some minor - to say mince -
> one, you should address the big harm, not the mince, not to lose
> your creditability.

This is a good criterion to choose between addressing specific harms.
Another is to address harms that have a relatively high probability of
being resolved favourably.

> Certainly we all get harm from undisclosed software, it dangers us,
> threatens us, takes our dignity.

Primarily, it prevents us from helping ourselves and helping others.

> But what is harmful here at the first stake, that are not small
> companies using free software without declaring it properly, but the
> big one, forcing us to accept human right violation disguised as
> licenses.

The harm you describe is real. Addressing that harm does not prevent
us from addressing other harms.

> So we should address the big one with complaints and not the
> smallest, weakest and less harmful violators.

I disagree strongly with this. Why should addressing one harm
necessarily mean we stop addressing others?

> There is already a contradiction between free and licensed: The
> licensed isn't free at all and never will be. All licensing starts
> with the non-free and needs it.

It is a sad state of affairs that the default rights, in the absence
of any license specified, is "All rights reserved" -- i.e. no rights
beyond what is guaranteed by law, which is very far from "free".

We (the free culture movement) are working to change that situation,
with campaigns in many countries to change copyright law to increase
default legal freedom for cultural and useful works. That is a very
long-term campaign; entrenched interests directly opposed to this are
very strong.

While that campaign goes on, we seek to address the rapidly shrinking
amount of free culture by producing more of it. Currently the only way
to do this is to explicitly grant more freedom than the default "all
rights reserved". The only way this works is to use the existing legal
system of copyright, and license works to grant freedom to recipients
of these works.

Again, the addressing of harm in one place does not preclude
addressing it in other places. It is far more effective to address
them all in a consistent, coherent way. I don't see "address this
type of harm, don't address that one" as an effective mandate.

> So if you are going to license, I suggest not to label it as free.

How would you describe a work that is licensed such that the licensee
is granted a great deal of freedom? In your description, please bear
in mind that a work with *no* license grants virtually no freedom to
the recipient of that work.

> Respectively - and quite naturally - some companies didn't care much
> about copying conditions and other license stuff, because it has
> been declared to be free.

The current legal regime for intellectual works is hugely
counter-intuitive. The acts that people expect they should be allowed
to do with a work once they have legally obtained it -- share with
others, sell it when they choose, use interesting ideas from those
works -- are, in the main, prohibited.

The licenses on free works attempt to legally ensure that those
actions *are* permitted, in the absence of blanket legal assurance for
all works, for all recipients.

> There was certainly some surprise about the first legal cases.

It is indeed surprising the amount of work one needs to go through, to
ensure that recipients of one's own work have the same freedoms. If
organisations are attempting to share and improve free works, I can
sympathise that it can be surprising the hoops we are all forced to go
through to ensure the works remain equally free for all recipients.

If you refer to surprises that some works are licensed to ensure
no-one can restrict the freedom of others with those works, I can only
wonder who you think is harmed by this.

> I uphold that this surprise did not foster the idea of free software
> and did not won assistance for it - on the contrary.

If "the idea of free software" does not include the idea that all
recipients should have freedom, I'm not interested in fostering such
an idea.

> With all your gifted folks around, you will find better ways then
> the law enforcement procedures. Do not feed the mill of the mighty
> and their lobbyists. Why not rather reward these companies, which
> comply?

Those that comply get a great reward: the free exercise of rights to
use, examine, share, sell, improve, and profit from free works. What
more reward would you propose, and on what basis should it be granted?

-- 
 \       "Kill myself? Killing myself is the last thing I'd ever do."  |
  `\                                          -- Homer, _The Simpsons_ |
_o__)                                                                  |
Ben Finney <ben at benfinney.id.au>
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