My largest complaint about this article is that it conflates the notion of a licence, and end user licence (EULA) with copyright. EULAs are not copyright now and never have been. They are derived from copyright but seek to confer additional rights on the copyright holder by obtaining a contractual arrangement between holders and users of copyright.

The EULA uses common Copyright to springboard the relationship between holder and user from the standard legislated copyright relationship into something new. For example, it is frequently the case that a EULA will specify the court or judicial system that will arbitrate any disputes. The Holder - who writes the EULA - will specify the most advantageous legal jurisdiction. This is a wholy unacceptable piggybacking of contract onto contract.

Far better to restrict the EULA writing of coyright holders to a number of well known and fair contracts as a response to the Pirate Party because that takes away the unfairness that extended copyright with arbitrary and capricious EULAs is currently enforcing.

It is all very well to worry about the impact on free software - which is not actually free but licenced in a fair, low cost and understandable way - but that is simply a smokescreen to avoid addressing the fundamental issue.

How is creative talent to be fairly rewarded and society to fairly benefit from such creativity. The main solution that Stallman is proposing ignores the main problem: the EULA.

Actually EULA isn't any kind of evolution of copyright. Since under Bern/WIPO no author ever needs to explicitly assert copyright, it is naturally granted at the point of authorship- though many feel that asserting it sends out a message of that they need to clarify who the copyright holder is (as authorship may not be clear, and copyright is transferable).

Thus the EULA is effectively a contract on the term under which you agree to use a product and nothing directly to do with copyright.

The continual calls for support of the Pirate Party on Indymedia are moronic and subservient. The idea that computer geeks ideas about copyright are of any more interest or worth than the ideas of anyone else is pathetic. For a start, the Pirate Party aren't even geeks, they are just file-sharers without any technical skills or creative works of their own.

That isn't the case with Stallman, who is the genuine article. However for him to be reposted here implies his ideas on society have worth because he has spent thousands of hours in front of a computer screen is pathetic. The respect shown to the free software movement proponents is exactly the opposite of participative democracy and anarchist principles. It is self-demeaning jism, the brainless worship of supposedly superior beings - folk that were mocked as pitiful 'geeks' only twenty years ago elevated to an intellectual status they simply don't deserve.

Stallman can be quoted here reverentially because he is a great programmer who put in a lot of effort into the free software movement. Big fucking deal. Eric Raymond is a better programmer who contributed at least as much code, but like Stallman his political opinions are no more valid than any garage-mechanic or nurse. For instance, here Eric Raymond blogs that fascism is socialist and anti-corporate:

 http://esr.ibiblio.org/?p=1115#more-1115

The cult of personalities that underlies the Pirate Party and the assorted geeks should be reviled and ridiculed. Society was better off when the term Geek was an insult.

I think Richard Stallman's political ideas are good in themselves. The fact that he has done some computer programming in the past is pretty irrelevant. He doesn't really have a cult of personality - most people see him as an overweight hairy unwashed hippy and are pretty negative about him personally. But a lot of these people admit he is often right about political issues.

The main insight is to see that companies such as Microsoft and Google wield massive amounts of power because of their monopolistic control over computer systems that are becoming ever more important in our lives, whether we like it or not. They are what the traditional print media was 50 years ago.

Free software is the traditional anarchic DIY ethic applied to computer software.

Any self-respecing anarcho with a minimum of technical knowledge should check out free (as in speech) alternatives to Windows, such as Linux.

"My largest complaint about this article is that it conflates the notion of a licence, and end user licence (EULA) with copyright. EULAs are not copyright now and never have been. They are derived from copyright but seek to confer additional rights on the copyright holder by obtaining a contractual arrangement between holders and users of copyright."

let me make it perfectly clear. Stallman discusses Copyright and EULA as though they are not separable. He is wrong.

I made no claim that EULA was copyright. I made the opposite claim: EULAs are not copyright now and never have been. A EULA is a contract that requires two parties to consent to it. A Copyright arises out of creation. There is a fair case to be made to examine the reasons for "copyright" but this is not true for EULAs. Stallman, like many Americans - whose aquaintance with Berne is brief and recent - conflate copyright with the construction of contracts from those rights. Stallman makes no mention of the tactics used - such as shrinkwrapping and deception - to obtain a second party to a EULA.

EULAs seek to add additional rights onto the accepted copyrights. (Such as all disputes will be settled in California or Delaware and so on). These are not rights arising out of the work, but they are rights under contract that Stallman, and others, seem to think should arise out of the work. Fundamentally, Stallman does not address the central issue: how are creative activities to be rewarded. He simply reiterates the standard capitalist property model extended to "intellectual" property. He is a decent thinker in his own right but he is wrong.

The only person you have corrected is yourself, since yiu have just parroted what I just wrote???

I'm not really that interested in what Stallman has to say on copyright- if he has ever offered any opinions. More than anything his Harry Potter stunt revealed himself to be fundamentally the kind of dick who'd spoil someone's recreation to get their tiny wee voice heard briefly- more cyberstreaker than IP battler.

The Pirate Bay etc. are just new delivery methods for an old market. Warez (cracked software) started off being distributed by BBS and by hand/postal service. Now there is an industry growing around it. Piracy (commercialism) was never the ethic behind circumvention of copy protection, so commercially orientated sites like PB aren't part of the warez morality nor anything other than a digital version of the bloke down your car boot sale that sells "hooky software".

Making money from warez is frowned upon as a rule, I've known people to post CDs & DVDs to complete strangers half way round the world and not ask for a single thing in return: THAT is warez and that is a genuine grassroots challenge to Intellectual Property and EULAs and draconian laws, and it happens every day and it happens because people are gregarious and not because they are part of any dogma/movement.

Warez will trundle on when torrents get taken out the equation and even if the Wall Street lawyers manage to Sharia law implemented for circumventers. We've seen BBS, Usenet and the bulk of IRC/FTP come and go... time marches on; names & acronyms fall by the wayside, the 0-days keep stacking up.

What does tickle me pink however, is that the mantra of market forces and neoliberalism seems to fall just short of anything deemed 'intellectual property'. It's is fine for the market to tear the throat out a whole town by shutting down a factory and getting 12 year old girls to do the work in a dictatorship, but it is regarded as beyond the pale that the Market wants to freely share software and media.

Instead of the monopolies under fire throwing their capitalist hands in the air and embracing the competitive evolution and seeking to deliver what the market wants (or dying a 'natural death'), they instead are protecting their monopolies by criminalising the market (the users).

Like any false economy, it'll eventually implode and it'll take the media whores, liggers and groupies down along with the corporate pimps they exist to "challenge" (see: make millions in advertising from a torrent site).

I have never argued that Copyright and EULA are identical. I argued that Copyright and EULA are conflated by Stallman. I have no problem with you claiming I have corrected myself. I have not. I have clarified what I mean. My main point was that I do not think Stallman, or you, address the fundamental issue: software creators.

TRIPS, WIPO, EUCD, and WIPO-PPT all contain, implicitly or explicitly, the three step test:

"Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."

That test allows copyright holders (that is creators) to place reasonable terms and conditions onto the use of software.

Now consider that in terms of the Microsoft EULA

"12. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. For additional information see  http://www.microsoft.com/exporting/."


Export Restriction is not a copyright but a right agreed between two parties on the basis that one party owns the copyright. If falls into the three step test if you agree to it. It is an unfair EULA derived right that Microsoft aquires through a legal sleight of hand. If you open the packaging or click the OK button then you agree to the term. Stallman, like many other American "open source advocates" does not address this. Instead they derive the equally suspicious General Purpose Licence. Again, people have Unfair Contract Terms imposed upon them because of questionable practices by corporate entities not by software creators.

My objection to the article remains the same. Stallman conflates EULA with Copyright. They are not the same thing and never have been. The whole notion that any person would confer additional rights beyond copyrights onto the owner (not the creator) of any work is questionable at best. Why would anybody agree to a EULA which, paraphrased, claims this:

"Notification of Facts Pursuant

By reading this agreement, you hereby implicitly agree to our terms. If you are no longer reading, then you have given up your right to choose, and are therefore implicitly in agreement regardless.

If you agree with these terms, then continue reading. If you do not agree with these terms, then you didn’t understand the last paragraph. Re-read it until you agree with these terms."


If you are reading this sentence I, as creator, am now entitled to make any demands such as - you must sacrifice a goat at full moon to the god Yog-Sothoth. To comply with the EULA contract terms you would be obliged to do so and, if you did not, I could seek remedy in the courts. Under copyright you could laugh at me, say no and cary on regardless. Stallmans position is that I can make this demand and pass ownership of this demand to other people. This I now do. Simply read the following agreement term out to a passerby:

"Notification of Facts Pursuant

By listening to this agreement, you hereby implicitly agree to our terms. If you are no longer listening, then you have given up your right to choose, and are therefore implicitly in agreement regardless.

If you agree with these terms, then continue listening. If you do not agree with these terms, then you didn’t understand the last piece spoken. Re-listen to it until you agree with these terms."

Effectively, the attitude of this approach is no better and no worse than people who commit fraud. EULAs not only impose goat sacrifice upon you but seek to impose it, vicariously, on anybody else that you come into contact with.

Stallman might well be a magnificent coder but he misses important points as illustrated by the Google Privacy Policy:

This clause essentially applies to all Google websites and services.

"...you agree to the terms of the Google Privacy Policy at, which may be updated from time to time and without notice."

The policy is then pointed to with the URL:  http://www.google.com/privacy.html

How can anybody agree to something without knowing what it is? Is it a fair contract where one party can change the terms without notifying the other party? These are not simply parrot phrasing your "correction" but important issues that go beyond software. Essentially, as you point out, a Free Market does insist that software should be free.

Stallman misses a very important point as do you: how are creators to be rewarded? Not the Microsofts or Sonys but the persons who actually write code. The EULA never mentions this.
Why should I continue to write code? Your and Stallman apply ideas to "intellectual property owners" not "intellectual property creators" - which essentially disenfranchises me and any other software developer. Your argument is basically: we can duplicate code for free and so we should. You, like Stallman ignore the fact that you cannot create code for free.

By all means, demand software free from intellectual property ownership. But how am I to be sufficiently rewarded to live? If I get nothing but recognition from writing software how do I feed and clothe myself. That is the much more important question than the squabble between software licencors and software licencees over duplication. What incentive do I have to create?

I'm not sure that Stallman does conflate the two. But EULA is basically aimed at who have some sense of playing the creator's game. It's an extension of the license model as much as anything else.

From what I can glean, much of it lies in teh domain of civil courts. It's essentially a contract of sorts.

How much clout an agreement to the export regulations would have in a civil court in the UK is unclear (though the erosion of the burden of proof in the UK for extradition is worrying) to me.

Arguments about EULA seem to me to be like complaining about teh quality of comfort in the cattle trucks to Auschwitz. In America, the DMCA is a far more dangerous concept: the use of Federal resources (tax payers money and police time) and the criminalisation of people who hitherto were regarded in civil infringers.

The arguments about time-scales and the divulging of source code to the public domain, seem almost neurotic in light of the fact companies like Microsoft and Adobe are able to throw their weight around, and have people arrested on US soil for cracking code in foreign countries.

Or, when you have monopolies setting industry standards but refusing to release enough documentation for coders to even make their products interact... let alone 3rd party development.

The commercial aspects of EULA get very tricky as soon as you step down a few rungs of the ladder and look at small developers who may never be able to commercially afford to enter into a market where they have a clock ticking down for five years in which they have have to recoup or go bust.

Hell, those small developers are already being mauled by cracking groups because they can't afford decent dongle based protection.

And how does this tie in with GPL? Precisely. What the fuck have software pirates got to say about GPL & Copyleft??? Their raison d'etre has been to completely ignore that anti-commercial ethos of warez and make a fat wad of cash selling advertising on their torrents sites.

So pardon me if I have no faith in their all-new Moral Crusade.

The struggle for free software is more of economics and bullying than it is with what creepy ideas ambulance chasers crowbar into license agreements.

My idea certainly isn't that creators shouldn't be rewarded or that the notion of the IP owner is 'natural'. In my mind, a workers' co-op would be much fairer than Microsoft's battery of drones, or of any employee being bound to their employer automatically owning the copyright.

But again, those are symptoms of a disease, and the disease needs to be treated.

And IP/Copyright doesn't only apply to software, it applies to music and video. In terms of music, the artist is already seeing often nothing of the profits anyway, so IP law isn't protecting them. And 'piracy' isn't harming many of them very much either.

There is a whole industry sprung up around making bold claims of the cost of 'piracy' and the need for fat retainers for lawyers and consultants.

And my argument isn't that there is any fundamental virtue in warez stealing anything that isn't nailed down, just that I know if it can be stolen, it will be stolen, and there is no use in developers bleating about it, anymore in there is bleating about dogshit on the pavement. It isn't going away.

Stallman specifically says this:

"Thus, the Pirate Party's proposal would give proprietary software developers the use of GPL-covered source code after 5 years, but it would not give free software developers the use of proprietary source code, not after 5 years or even 50 years. The Free World would get the bad, but not the good. The difference between source code and object code and the practice of using EULAs would give proprietary software an effective exception from the general rule of 5-year copyright — one that free software does not share."

This conflates Copyright and EULA.

He begins by saying that the Pirate Party would force the licence (EULA) to expire after five years. He does not say that Copyright would expire. He then says that a EULA would provide an exception from 5 year copyright.

What Stallman should be arguing is the universal revocation of EULA and EULA-Like contracts. The original Berne Convention recognised creators rights as being rights in a person. That distinction was never an issue in the US (the "source of the EULA") until 1989 when the Berne Convention became a matter of treaty and Law for the US. The majority of the rest of the world had adopted it between 1889 and 1920. The EULA was created by people such as Bill Gates in his 1977 "letter" - claiming developers should get paid for "their" work. The EULA arose because of lack of adequate copyright in the US. With the adoption of the Berne Convention, the DMCA Lobbying began because Berne was intially seen to weaken the commercial interests of US Corporations. By using a Licence in the form of a Contract, the whole issue of Copyright is circumvented by a Contract. And Contract Law is internationally enforceable (in particular, the WTO ensures it is) even if the contract term relates to Goat Sacrifice.

The problem is contract not copyright. Without the abolition of the EULA (or GPL) peoples use of copyright material is subject to obscure and capricious contracts controlled by corporations with no interest in the copyright material except making money from them. That reduces all creative endeavours to simply finding a contract that minimises litigation.

The DMCA - and increasingly, "intellectual property" law worldwide - was written for the benefit of business, by business and passed by representatives of business. This discriminates against smaller software developers - who can find themselves forbidden access to their own source code - or against smaller Filmmakers (such as Troma) who can not afford to film in a street because there is a logo on the wall which would incur a fee for "use" but who cannot afford to pay the fee to the "intellectual property owner" to remove it in the post edit. The DMCA is the natural progression of EULA.

Complaining that the Pirate Party have bills to pay and finance that by selling advertising - or, damn them, make a profit - is churlish. Pirate Bay was, in some respects, a creative endeavour and deserved - like other creative efforts - rewarding. Complaining about the purity of warez is fine. But what incentive does that give to people to actually create?

Microsoft, Sony and others punish their employees for not toeing the line. Microsoft is happy to litigate and Sony to place rootkits onto CD players. The fundamental point there being: that is nothing to do with copyright. That behaviour is just normal capitalism. My problem with Stallman is that he equates "contracts being kept" with some variety of freedom while my problem with Circumventer is that they equate "contracts being broken" with some variety of freedom. Neither are correct because both actually ignore (as does the DMCA) the fundamentals rights of the creator.

Feel free to copy, distribute and derive works from anything. That is not what is at issue in copyright. What is at issue in copyright is how to reward people for creative activities. The Pirate Party go towards that goal in a different way to Stallman. Both are imperfect.

But ignoring the need for people to have a life is criminal. That is where warez do damage the creator, rather than the owner, of intellectual property. This is, in my view, a consequence of the EULA, the contract, the supposition that all creative activity must be commodified. That ignoring is repeatedly done by both the intellectual property owners and those infringing their intellectual property rights. Indeed, warez is little more than collusion with intellectual property rights holders because it plays the property game.

Remember this: creators can walk away from the digital world any time they want to. Both Intellectual Property Exploiters and Liberators are actually dependent on the presence of Creatives. So the fundamental question - which Stallman evades by conflation of Copyright with EULA and Circumventer avoids by not mentioning it, remains: how is creativity to be rewarded?

Apologies for not being bothered to read Stallman's egotistical drivel, but now I get your point.

Yes I wholly agree the creators right to a reward is obvious. It is after all where the notion of mechanical royalties came from no?

And yes the corporatisation of copyright holding has been hugely negative.

And warez has damaged the income of many... though the extent of which has likely been hugely exaggerated on both sides of the fence. I would agrue that also marketing has been instrumental in persuading people to make the effort to sniff out warez. The fact that often the price people pay for a product does not reflect the cost of development offends people's sense of fairness. Also, that many products for 'professional' use are priced way beyond the means of the individual and modelled on corporate licensing as their mainstay- and the cheaper versions are crippled so as to make them useless to anyone who needs to learn the app for their job (freelance audio engineers & graphic designers encounter this problem a lot). Yadda yadda yadda!

So, to be fair much of the warez problem is a self-inflicted wound borne of greed, arrogance and sometimes just the realisation that it will harm your competitor more if everyone is using your app which is easier to crack...

In terms of fairness, I think obviously the thing to do is to roll back the notion of copyright back to the original purpose of protecting the authors from the publishers and the vendors.

The next question for me is how viable is that concept within the global neoliberal economy geared towards the might of investment capital???

I'm sorry I have to disagree. Pirate Bay did nothing new. We have been dealing shithead moneygrubbing pirates right back to the days of BBS. Warez people have gotten militant about profiting from warez since it all began. People have even actively policed parts of the net to keep the pirates at bay.

But credit where it is due. PB & its ilk have made it much harder for the IP Police to be so cocksure and macho in their attitude towards warez now. They seem to have been overcome by brute force. And as much as I dislike their ethics, they have in a sense taken an element control away from warez but also effectively shifted volumes that previous methods could never have dreamed of. The warez crew population has been decimated by the success of torrents!

But, it's not really very clever, not as clever as building a dongle emu, nor as clever as coding protection, it was just possible, and like cracking an app, it was done, because it could be.

That offers no solution. Unless you see a big pissing contest as being a way securing coders, musicians and writers...

?

It is this kind of response that garners respect: "Apologies for not being bothered to read Stallman's egotistical drivel, but now I get your point." Unfortunately for everybody, not examining the drivel results in the Stallmans of the world being seen as definitive, common sense advocates.

We both agree the creators right to a reward is obvious. Indeed, most warez crews would probably reach the same conclusion if they were to discuss it. The protection of creators and their rights - not simply to be rewarded but to be protected from economic exploitation and even persecution - are fundamental to the rights.

The EULA rolls back the notions of copyright as any kind of commonly understood set of rights. It is the additional rights of the EULA that most people can understand to be unfair. Quite rightly, you see marketing as persuading people that warez is wrong. Marketing is, after all, a search for contractual partners. Warez, as a negotiating position, starts out at refusing any EULA terms and conditions. Copyright Holders (rather than Creators) simply negotiate by using coercion and the full force of laws they have lobbied for. Laws and agreements that would never have been put in place had people critically objected to the Stallmanist drivel a decade ago. In this sense, we have all been badly served.


I do think that we agree: "In terms of fairness, I think obviously the thing to do is to roll back the notion of copyright back to the original purpose of protecting the authors from the publishers and the vendors." The obligation to provide definitive answers to that question is part of what makes
"how viable is that concept within the global neoliberal economy geared towards the might of investment capital?" such a difficult non-question. Unfortunately for people the Pirate Bay (and subsequent Pirate Party) is the big pissing contest that will need to play out before securing creatives their rights to reward.

This I take to be your most important claim: that you will be fair to me if I am fair to you. Which I wholeheartely agree with. People are, on the whole, fair. I too should be fair to you: if it can be digitised it can be free but that does not release me of the obligation to reward the creators of that digitised thing.

Pirate Bay made one innovation. They used hyperlinks to point people to the products of creativity. It is not a huge innovation but it is an important one. What it shows is that the Hyperlink abolishes much of the post creative infrastructure that, for example, Hollywood depends on. Once a thing is digitised then it becomes available for the cost of electricity and some hardware. That Pirate Bay did that to Hollywood, for example, is an innovation. Take Factories, Mines and Steelmills as an example. The Management see a way to "restructure" the business and so - quite legally, in most countries - simply lay off the surplus labour. This is the neoliberal way. Pirate Bay, by putting so many links in one place restructured Hollywood in the same sense: marketers, advertisers, lawyers, publicists and so forth are surplus to requirements. For Hollywood it is the end of the gravy train for all the people rendered surplus to distribution, down the process from creation: for anybody who recognises "alt.binaries" this is very old news. Pirate Bay have implemented the straightforward process of restructuring a business that they do not own. That is actually something new for a website. The Fact that Pirate Bay gave rise to the Pirate Party who achieved electoral success in the EU is also, questionably, an innovation.


The problem is not that Pirate Bay was, or is, the wrong kind of warez crew. The problem is that the Pirate Bay takes Neoliberal Techniques of decimating an industry and applies it upwards to an industry instead of downwards. That is a huge pissing contest that will play out before creatives can have security of reward for their activities. The mistake that EULA Proponents make is that they are in control. Pirate Bay showed a route to mediate distribution and circumvent the sleight of hand that is EULA. In that respect it is a business equivalent of cracking. Which raises important possibilities regarding EULAs. Would it be an enforceable contract, if crackers were to place additional terms and conditions into a EULA? Obviously, removing terms and condition would never stand up in court. But adding them could. If you have any such EULA terms, it might be an idea to start sharing them. Terms such as:

"The End User is only held to the foregoing Items (insert numbers of existing EULA terms) on condition that they Sacrifice a Goat to Yog-Sothoth."

or

"The End User is not held to any term or condition published on a web site"

Along with the babble about "If your read this you obey this"

This is the genuine importance of Pirate Bay to warez: it was a failure that can be critically examined for new ideas in cracking. Again, this offers no solutions but it does offer new possibilities - which is exactly what Stallman argues agains: new possibilities.