Law in the Internet Society

Part Two. It’s About the Freedom, Stupid.


Stallman rhetoric is full of ideas of freedom. What does that means exactly? He explains it quite well. The idea behind the FSM is that people (both users and programmers) will have the ability to control their digital destiny. In order to sell the idea, he came up with four freedoms that are essential for the FSM.

So there is a freedom to run, copy, distribute, study, change, and improve the software.

He explains that “in order for these freedoms to be real, they must be irrevocable as long as you do nothing wrong; if the developer of the software has the power to revoke the license, without your doing anything to give cause, the software is not free”.


The basic idea behind the FSM understanding of copyright is twofold.

First, Stallman understands that is a tool to protect the freedom of the FSM developments. That’s copyleft, as we have seen in the first part. The idea is to use copyright against copyright, maintaining all developments based on free software free (as in freedom).

But there is a very strong attack on the idea itself. He argues that "digital technology is more flexible than the printing press: when information has digital form, you can easily copy it to share it with others. This very flexibility makes a bad fit with a system like copyright. That’s the reason for the increasingly nasty and draconian measures now used to enforce software copyright".

The FSM understanding of copyright helps us to think about FSM from the point of view of what has been called social movement popular constitutionalism. Reva Siegel explains, social movements tend to act in public debate with two constraints: she calls them the consent condition and the public interest condition.

According to the first one, the social movement speaks to its audience (which includes law-makers, judges and the public at large) using arguments, trying to persuade of the value of the idea. In other words, with no resource to violence. The public interest condition, on the other hand, implies that the movement makes reference to older understandings of common good, and usually make references to old principles, proposing new understandings of application.

Both conditions are followed by the FSM in the issue of copyright.

First, obviously the FSM is in the task of persuading people. That is why for Stallman words are so important. He explains that “names convey meanings; our choice of names determines the meaning of what we say. An inappropriate name gives people the wrong idea.”

Second, in order to persuade, Stallman relies from time to time in older narratives, to explain his ideas drawing parallels with things that happened in the past, that can be easy to understand and easy to relate to.

For example, in explaining why copyright is not good for software, Stallman resorts to the Soviet Union as a normative distopia that is influencing the current practices of the proprietary software companies. He specifically attacks four practices of the Software Publishers Association (SPA), engaged in a massive propaganda that says that is "wrong to disobey the owners to help your friend". Those four practices are (and I quote Stallman):

- Solicitation for stool pigeons to inform on their coworkers and colleagues.

- Raids (with police help) on offices and schools, in which people are told they must prove they are innocent of illegal copying.

- Prosecution (by the U.S. government, at the SPA’s request) of people such as MIT’s David LaMacchia? , not for copying software (he is not accused of copying any), but merely for leaving copying facilities unguarded and failing to censor their use.

He uses a clever rethorical mvoe to attack those practices: he recalls the Soviet Union.

"All four practices resemble those used in the former Soviet Union, where every copying machine had a guard to prevent forbidden copying, and where individuals had to copy information secretly and pass it from hand to hand as samizdat. There is of course a difference: the motive for information control in the Soviet Union was political; in the U.S. the motive is profit. But it is the actions that affect us, not the motive. Any attempt to block the sharing of information, no matter why, leads to the same methods and the same harshness".

Another exaample of the FSM public interest condition is his understanding of the copyright clause of the U.S. Constitution. He explains that the idea of the founding fathers was to promote and increase creativity, that’s why they explicitly considered and rejected the idea that authors have some sort of ‘natural right’ to the product of their work. That idea would mean that authors would have those rights with all the characteristics of the natural rights theory of those days: inalienable, indestructible and eternal. Stallman explains:

"When the U.S. Constitution was drafted, the idea that authors were entitled to a copyright monopoly was proposed—and rejected. The founders of our country adopted a different premise, that copyright is not a natural right of authors, but an artificial concession made to them for the sake of progress. The Constitution gives permission for a copyright system with this paragraph (Article I, Section 8): [Congress shall have the power] to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. The Supreme Court has repeatedly affirmed that promoting progress means benefit for the users of copyrighted works".

The Enemy

Thinking about the FSM from a narrative-battle perspective helps to understand this rethoric. What is better in an argument that is about changing current laws and practices than to having the founding fathers at your side?

But social movements necessarily face counter narratives. And in this case, those counter-narratives come mainly from the powerful players in the proprietary software business, supported to a great extent by the big media companies that profit from current copyright laws. These companies have the power of lobbying Congress for extensions of copyright, and they have been extremely successful in that enterprise.

But law-makers are not the ultimate destiny of their narrative: consumers are. Stallman explains that “the publishers call people who copy ‘pirates’, a smear term designed to equate sharing information with your neighbor with attacking a ship. (This smear term was formerly used by authors to describe publishers who found lawful ways to publish unauthorized editions; its modern use by the publishers is almost the reverse.) This rhetoric directly rejects the Constitutional basis for copyright, but presents itself as representing the unquestioned tradition of the American legal system. The ‘pirate’ rhetoric is typically accepted because it blankets the media so that few people realize that it is radical. It is effective because if copying by the public is fundamentally illegitimate, we can never object to the publishers’ demand that we surrender our freedom to do so. In other words, when the public is challenged to show why publishers should not receive some additional power, the most important reason of all—-'We want to copy'—is disqualified in advance.”

Brief conclusion

Thinking about the FSM from the perspective of popular constitutionalism can be helpful in many ways.

First, it allows us to understand some that discussions about words are a central part of the movement, and Stallman pressure on the point is explained by the fact that the FSM is a movement claiming a particular narrative of society, including particular understandings of legal meaning.

Second, it is useful because it allow us to draw historical comparisons with other social movements, such as a the civil rights in the 1960s, the feminist movement in the 1970s and the gun-right rhetoric of the 1980s and 1990s, that for Reva Siegel ended up shaping District of Columbia v Heller.

And finally, understanding that this is a fight about words and looking at other experiences to learn from history can help make decisions about the future, and pick paths that could eventually lead to victory.

-- RamiroAlvarezUgarte - 18 Dec 2008



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r1 - 18 Dec 2008 - 18:22:53 - RamiroAlvarezUgarte
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