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Re: [Gnu-arch-users] OT: Slavery???

From: Tom Lord
Subject: Re: [Gnu-arch-users] OT: Slavery???
Date: Sat, 22 Nov 2003 21:55:50 -0800 (PST)

    > From: "Stephen J. Turnbull" <address@hidden>

    > >>>>> "Tom" == Tom Lord <address@hidden> writes:

    >     Tom> Ok, then.  I'll turn it around (still in debugger mode -- one
    >     Tom> step at a time).

    > I like this metaphor!

    >     Tom> Part of what offends me about the the BK license is very
    >     Tom> general: that it is a _contractual_offer_, and specifically
    >     Tom> an offer that asks users to give up their software freedoms

    > (gdb) step

    > They're not giving up "their software freedoms" in the sense that we
    > usually think of freedom, when we're talking about fundamental rights.
    > They're giving up the right to do certain things with a certain
    > program, certain things that they could not do anyway until they
    > acquire the program.  When you accept Holmes's stricture that you may
    > not scream "Fire!" in a crowded theater, have you given up your
    > freedom of speech?  Of course not!  When you insist that it is right
    > to prohibit proprietary licenses, do you mean to strip me of my right
    > of contract?  Of course not!---you simply intend to restrict it in a
    > way you think is socially desirable.

Your "right to contract" is not some a priori element of nature --
some personal liberty granted by a creative force -- which can be
modified only by constructing restrictions.  On the contrary, your
"right to contract" exists _only_ as social construction, at least
insofar as _enforcement_ is fundamental to contract.  (Your "right to
gentlemen's agreement", being not based on enforcement, is a different

All but one of the GPL software freedoms (to run, copy, modify, and
distribute -- but not to obtain source), in contrast, _are_ a priori
elements of nature.  They are personal liberties, like speech or
association, that truly can only be modified by a constructed
restriction (whether voluntary, like a contract, or mandatory, like a
copyright, patent, or trademark law).   The restrictions on those
freedoms exist only insofar as society as a whole is willing to back
them with enforcement.

There are, of course, varying theories about the nature of a state's
interest in enforcing contract but regardless of which theory you
believe in, the decision of what to enforce and what not to is
inextricably a matter of public policy. [1]

And there are, of course, varying theories about the best form of
construction for monopolies granted to authors and inventors -- but
again, that question is a matter of public policy.

Are you with me so far?  Regarding those software freedoms which are
personal liberties, we will have to weigh the benefits of restricting
them in particular ways against the costs of enforcing those
restrictions as a matter of public policy.   

The remaining software freedom, to obtain source, is, at least
superficially, of a different kind: it appears to be a restrictive
freedom impinging on the personal liberties of those who would
distribute software.  To understand why the freedom to obtain source
must not be denied, we must either overcome the initial impression
that this is an impingement on the personal liberty of software
distributors or else we have a positive obligation: to explain why, as
a matter of public policy, enforcement of this freedom is appropriate.


[1] Justice O'Conner, in her opinion on AMERICAN AIRLINES, INC.,
    PETITIONER v. MYRON WOLENS et al.  [January 18, 1995] wrote 
    nicely, mostly in the words of others, on this matter:

    The doctrinal underpinnings of the notion that judicial
    enforcement of the "intent of the parties" can be divorced from a
    State's "public policy" have been in serious question for many
    years. As one author wrote some time ago:

    "A contract, therefore, between two or more individuals cannot be
    said to be generally devoid of all public interest. If it be of no
    interest, why enforce it? For note that in enforcing contracts,
    the government does not merely allow two individuals to do what
    they have found pleasant in their eyes. Enforcement, in fact, puts
    the machinery of the law in the service of one party against the
    other. When that is worthwhile and how that should be done are
    important questions of public policy. . .  . [T]he notion that in
    enforcing contracts the state is only giving effect to the will of
    the parties rests upon an . . . untenable theory as to what the
    enforcement of contracts involves." Cohen, The Basis of Contract,
    46 Harv. L. Rev. 553, 562 (1933).

    More recent authors have expressed similar views. See, e. g.,
    Braucher, Contract Versus Contractarianism: The Regulatory Role of
    Contract Law, 47 Wash. & Lee L. Rev. 697, 699 (1990) ("Mediating
    between private ordering and social concerns, contract is a
    socioeconomic institution that requires an array of normative
    choices. . . . The questions addressed by contract law concern
    what social norms to use in the enforcement of contracts, not
    whether social norms will be used at all"). Contract law is a set
    of policy judgments concerning how to decide the meaning of
    private agreements, which private agreements should be legally
    enforceable, and what remedy to afford for their breach. The Court
    fails to recognize that when a State decides to force parties to
    comply with a contract, it does so only because it is satisfied
    that state policy, as expressed in its contract law, will be
    advanced by that decision.

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