Freedom and the Limits of Private Ordering

A couple of weeks ago, I went to a extremely interesting talk by Niva Elkin-Koren on the limits of private ordering (i.e., contracts and licenses) in building communities around the production of free (for definition of free) creative works. She’s writing a paper which I hope to get my hands on very soon. I have every reason to believe it will be excellent.

Elkin-Koren is a law professor and one of things she did in her talk was argue that Creative Commons in particular, but also Free Software and Free Software inspired licensing in general, is using licenses and contract law (private ordering in legal jargon) in such a way that helps opens the door to all kinds of less well-intentioned uses that advocates of freedom might not be as comfortable with. If I can say, "you can give away my music but you can’t use it for commercial use," or, "you can use my software unless you violate someone’s human rights as defined by the United Nations Declaration on Human Rights", what’s to keep Adobe from saying that I can’t implement a workaround for their eBooks or keeping the DVD-CCA from saying I can’t watch a DVD without a licensed CSS or reverse engineer the protocal?

I don’t think people should be able to able to use contracts and licenses to say anything because I don’t think it is in the best interests of creating the most free works and I think Elkin-Koren agrees. I think that fiddling around or reverse engineering a piece of software should be a right that no license has any business blocking. It’s outside of the scope of what I think copyright licenses should be able to be used for.

However, as long as we live in a world where people are producing non-free creative works and believe that they have something to gain by restricting consumers’ rights, we need to face the fact that if we are using contracts in the Creative Commons or Free Software contexts to place any and all restrictions we think are in the interest of freedom, we may be opening the door to abuse.

We all know that copyleft is enabled through copyright. As a result, there is a tendency for software freedom advocates to argue for stronger copyleft by, explicitly or implicitly (and often unintentionally), arguing for stronger copyright. This is wrong. I don’t believe in peace through war and I don’t believe in free access to information through stronger copyright — as a stategic technique or as a ethically defensible strategy.

Using copyright, as it stands, as a weapon against itself is strategic position that I believe is justifiable. However we must resist the temptation to adopt an expansionist position on copyright when we think it benefits freedom because the advocates of freedom will lose more than they gain.

Elkin-Koren’s argument poses an important — and open — question to the supporters of free information in asking them to consider the extent to which their free licensing practices opens the door to an environment where private ordering allows anyone to do anything.

At the talk, SPI’s lawyer (and sometimes director of photography) Greg Pomerantz made the argument in support of Free Software licensing saying that Free Software licenses are limited in scope to cover those things that are already copyright rights. I think this is a clever way to critique the policy of license proliferation by Creative Commons and others.

In addition to arguments about the lack of freedom in some creative commons licenses, they may be strategic arguments to make that by pursuing software and content licenses that expand beyond the reach of copyright’s existing realm, advocates of freedom are doing more harm that good — that licenses should focus on things within the realm of copyright (derivative works, distribution, etc) and not things like outside like how they will be used (e.g., barring non-commercial use).

This happens to integrate quite well with more fundamental critique of Creative Commons that I have written but I’ll save that for another day.

8 Replies to “Freedom and the Limits of Private Ordering”

  1. I have been using *nix-type systems since the inception of BSD. Now I use Debian, but with a difference. Since the beginning, I have reversed-engineered to my heart’s content, ignoring ALL licensing restrictions. I do this for my personal use, not for (re)distribution, but simply because I want a bug-less system that works for me. Another reason? I consider all copyright laws an aberration based on the American Pigopolist culture- the same “culture” that grants the corporation status as an individual concerning rights…, a ploy to restrict true individual rights for real persons and not corporate persons.

    Of course, I realize that an orginazation (such as debian.org) requires an internal methodology to protect itself from pigopolistic interests and frivilous legal attacks. But this does not concern me. I use and modify whatever I wish whenever I wish. I also realize that most do not have this luxury because not everyone is a coder and most people have an ethic more compatible with economic interests than with morality. I am proud to NOT be one of them.

  2. But is that not a back-to-front view of freedom? Surely I have the freedom to give away my intellectual property (private ordering is the layer above copyrights and patents, the control of their use) in the manner i choose, and quite frankly, with the constraints I choose? One either rethinks the whole idea of ownership of ideas or supports the current copyright based view, an originally very liberal view, that I can ultimately choose how I give away, for no monetary cost, my assets.

  3. Thanks Buff for your feedback.

    What you’re bringing up here is a very old argument and one of the
    most important ones in the free software movement that’s at the center
    of any BSD vs. GPL (laissez faire vs. copyleft) controversy.

    Some people will argue, as you seem to be doing, that the most
    extensive freedom includes the freedom to make things non-free. Others
    will argue that the freedom to take away or limit freedom is simply
    not a freedom that is worth protecting. I tend to side with the latter
    argument. Copyright is not the same as traditional property and we can
    choose to make certain rights unreservable — and we do! This is
    visible in fair use and rights expiry — neither of which would make
    sense in traditional forms of property.

    And I do think that, given recent technology changes in the way that
    copyrighted texts are distributed and created, copyright needs to be
    rethought on in very fundamental ways.

    Copyright is not a normal property right and the way that private
    ordering is attached to copyright is something we can and should
    debate.

  4. “(…)an originally very liberal view, that I can ultimately choose how I give away, for no monetary cost, my assets.”

    The problem is that that is anathema to the American Pigopolist Religion of which the first commandment seems to be: “there is no such thing as a free lunch.” And as you know, the American aberration commonly known as “intellectual property” (assuming that there is anything remotely “intellectual” in the US), seems to be the second commandment.

    As long as the world bends to the American capitalist will and rolls over for fear of economic sanctions, all these arguments are moot.

  5. This has been going on with shrinkwrap licenses of all sorts for ages, most perniciously in the form of UCITA. To blame it on the FSF or CC is silly at best and naively stupid at worst.

  6. Luis,

    Don’t confuse blaming the problem on CC with pointing out that by embracing their model fully, we may be closing the door to the legal challenge that may ultimately help us gain more than we lose and that could be part of what is a relatively untested legal strategy.

    I never said that CC caused the problem — they didn’t — but they are using private ordering to an exent that we might want to close the door on in general from a strategical perspective.

    In fact, I said in the essay that I don’t think the FSF is doing the same thing. I think that by treating licenses more as a property right rather than a full-fledged contract, we can create stronger more enforceable licenses and still be able to argue against things like EULAs and implicit EULAs in the form of software or content licenses we don’t even need to agree to explicitly in order to be bound by.

    If you’re convinced that shrinkwraps and EULAs and copyright licenses as contracts that can and should be able to do anything are immune to any challenge at this point, you’re right to say we might as well used them to our advantage. Maybe I’m overly optimistic but I’m not convinced yet and think that using them in the most expansive way possible makes us part of the problem.

  7. RengiNeer,

    If you look, I think you’ll find copyright is hardly an American invention and that many of the best things about copyright (e.g., fair use) are almost unique to the US. Extensive unrevokable moral rights to creative work are common in continental Europe but non-existent in the US.

    The greatest stakeholders in any fight against IP will be disproportionately USian but that is a relatively recent change — the US was a pirate nation until recently. Even today, many of those leading the fight against an expansionist IP policy are also from the states.

    Let’s not confuse the issues or the enemies here.

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