Before, after, and, inexplicably, during, a ride on Nemesis Inferno at Thorpe Park, I had an interesting discussion on copyright rights and wrongs with Dave.

Anyone under the age of 30 and over the age of 3 will undoubtedly be familiar with both rollercoasters and the exact wording and intent of international copyright law. Richard Stallman is not under 30, wasn’t on the rollercoaster next to Dave and Mary, and wasn’t even off the ride being sick into an oversalted Happy Meal, but he nevertheless says:

Reducing the length of copyright to 5 years is a good idea, but in order for this to have right results in the software field, it needs to be accompanied by a requirement to put the source code in escrow for public domain release 5 years later.

This crazy bearded idea may be totalitarian, but it’s not as hairy as one might think. The original idea behind copyright was to grant a limited monopoly to content creators in exchange for the work being returned to the public domain upon expiry of the monopoly. The content creators would get paid for their work during the (25, 50, 75,…)-year period of copyright, and by ending this period, the government would acknowledge the apparent fact that intellectual property is not property, but something somewhere in between physical property (which is alienable, i.e. can be take from you) and a naturally occurring resource.

So how does this apply to software? All software is automatically granted the protection of copyright law, in both source and binary forms. The legal authority and military power of the government is brought to bear against infringers. Assuming anyone is around to care in the 22nd century when currently copyrighted software will pass into the public domain, the source and binary will become available to all.

Except one of them won’t.

Only the binaries were ever made publically available, so the source code will likely vanish without a trace, possibly intentionally. The copyright deal will be broken: protection was granted to the source code while under copyright, but the source code will never be released to the public.

Richard Stallman’s plan for escrow would ensure content creators uphold their side of the bargain, but at the cost of creating a gigantic creaking bureaucracy. Would it really be worth having a 6-8 week delay before the release of any software in order to claim copyright protection? Forcing the release of source code is a rat’s nest. How do you verify that the escrowed code really is the code to the released binaries? Could it be automated? Must the government run compile farms? Or must each piece of code be manually audited? What about new languages and libraries? It will be impossible to acquire copyright protection on anything the government doesn’t support or doesn’t understand, which is nearly everything.

If escrow wouldn’t work, how could you ensure the source is available 25, 50, 75, or even just 5 years from now? You can’t. No sane law of copyright can oblige developers to keep source code around forever. Would you prosecute them if they lost it? If not, why wouldn’t developers just claim to have lost it?

There is a very slight parallel with books and movies: once a book falls out of copyright, the author is under no obligation to release the manuscript or the original cover art, and neither are film directors required to make available their screenplay, dailies and custom-written special effects. In fact, copyright law requires content creators to do very little, and in general there are few laws which require a specific action to be performed.

One might suggest that if the source code is never publically released, then it should garner no copyright protection in the first place. But then how do you prosecute a cracker who acquires the source illicitly? Must the source then be forced into the open? There are good reasons why private developers don’t open source their code even though it is currently under heavy copyright protection. The most important is that they don’t want to.

Stallman goes on to say:

It’s quite possible to change a binary - disassemble it and rewrite it in raw machine code, for example. It’s not easy, but then copyright is not designed to make the life of the consumer easy, it’s designed to define who can and cannot copy information. We can’t complain that a binary becomes useless after 5 years any more than we can complain a physics textbook becomes outdated as science progresses. The content is irrelevant in the eyes of the law.

Besides, binaries are not useless. The source to this copy of Theme Park is long gone, but the binaries remain playable as disk images in emulators. It took a lot of effort to write those emulators - effort that would’ve been saved had the source code been available - but again, copyright law is not there to make amateur programmers’ lives easier.

Software is certainly different from other information, but not so different that the law needs a shakeup (it needs a shakeup for other reasons).

Addendum

Reading on from the escrow link on RMS’ political notes blog yields the following:

Dutch pedophiles have formed a political party to campaign for legalization.

I am skeptical of the claim that voluntarily pedophilia harms children. The arguments that it causes harm seem to be based on cases which aren’t voluntary, which are then stretched by parents who are horrified by the idea that their little baby is maturing.

Crikey, RMS. What’s wrong with putting kids in escrow until they are capable of consent?