Unlikely bedfellows

TWO COURT CASES in the USA look set to produce some strange alliances over copyright. One you'll be hearing about, with all sorts of spin from publishers: the Supreme Court has agreed to consider a challenge to the "Sonny Bono Act", which extended copyright in the US to last for 70 years after the death of the author, as it does in the EU. The other opened in the District Court in Massachusetts on 27 February, and is the first legal test of the General Public License (GPL).

The what? The cornerstone of the Free Software movement, is what. Yup, it's about geeks. But there's a punchline, so bear with us.

Are you sitting comfortably? The GPL was developed by and for computer programmers who don't like to use any program unless they can see how it works, and can fix it if it doesn't. That means they need access to the "source code". That's the actual text that other programmers wrote. Source code is translated (by yet other programs, for example those called "compilers") into a form that a computer "understands" directly. It's next to impossible to translate back.

The most ideological of these programmers are grouped in the "Free Software" movement. You guessed that many are instinctively opposed to restrictions on copying?

A cunning licence

They understand the GPL to say: 1 you can copy this program and distribute it to other people; or 2 you can improve it, or use bits of it in building a new program - on condition that 3 you must give the source code to anyone you distribute the program to, so they can do the same; and 4 any program that uses any source code covered by the GPL may only be distributed under the GPL.

That last bit's the stinger. It translates as: "5 Gotcha, Bill Gates! There's no way you can nick the fruits of my labour what I make freely available and use it in your wicked, secretive, closed products." Much of what is written about as the "Linux operating system" is in fact programs released under the GPL.

And the news is...

MySQL AB, a Swedish company that developed a powerful database program of the same name and released it under the GPL, is suing a company called NuSphere. MySQL alleges effectively that NuSphere stole what MySQL were giving away, by locking their code up in a closed, proprietary product.

And here's the punchline. All over cyberspace you can hear the sound of pennies dropping. Everywhere you found geeks ranting about how copyright is an evil monopoly by authors... Doh! We forgot Point Zero in the list above: 0 I issue this program under the GPL because I have strong author's rights in it, so if you disobey these terms I can sue.

Gifts depend on ownership

The current lawsuit may yet be settled without setting a precedent in a higher court. But the message is getting through. Richard Stallman, the figurehead of the Free Software movement, gave a talk in London recently and came out firmly in favour of authors' rights. He objected vociferously to two things. One was software that makes it impossible to copy electronic media, and the other how long copyright lasts.

And soon the US Supreme Court will be asked to overturn the Act that extended copyright there to 70 years after the death of the author - and 95 years after publication for works owned by corporations. The lead plaintiff is Eric Eldred. He makes copyright-expired works available on the Web. He doesn't like them being disexpired.

The US National Writers' Union supports the Eldred claim. NWU President Jonathan Tasini observes that "this kind of unreasonable copyright extension does not benefit individual authors - it is essentially a corporate subsidy." It may benefit your grandchildren, if any - unless you've given in to one of those contracts demanding, with menaces, all rights in your work and your grandchildren, if any.

Already the New York Times is in a bit of a spin, though you'll have to pay $2.50 a piece to read about it online now. After Jonathan beat the Times in the Supremes, it started pulling freelances' work from its database, then arguing that it was the inconvenience of us having rights that was causing these holes in the historical record. Now Eldred comes along, arguing that the Times owning copyright creates, er, a chasm in the historical record.

What the Eldred and MySQL cases have in common is that they both challenge the myth, common in legal circles, that there is a group called "rightsholders" that has identical interests. Eldred objects to corporations privatising the historical record, especially when they refuse either to publish or to license it. Individual authors' rights would largely solve that, with possibly a few cussed exceptions. And MySQL is precisely about individual software authors cunningly preventing corporate rights-grabs. Let's point this out wherever we can.

© 2002 Mike Holderness

Update 11/11/2002:

The MySQL case has been settled. Which is a bit of a shame for everyone except the parties - it'd have been interesting to see the GPL tested in court.