Category Archives: Constitutional Law

Return to Freedom and Order

Almost a year ago, I wrote about a combination of freedom and order that had been necessary in the early days of the United States, and that may still be necessary here and now, in the context of the Free Software movement. Without going too deeply, I basically extolled the idea that people should focus on higher concepts, rather than the nitty-gritty details like prices, economics, and so on. My theory was that people would be more likely to be interested in the higher concepts.

This article is not a re-examination of the concepts set forth there, though that may be necessary. This is a more philosophical approach to analyzing a phrase I’ve been considering for months.

Great worlds come into existence due to great order.

Great works come into existence due to great freedom.

Though diametrically opposed, both are necessary for a thriving society.

This statement, to me, sums up why the above-linked post is vital to the success of the Free Software movement. Basically, without order to the madness, there will not be a movement for very much longer. We’ve far surpassed our years in chaos, and we need an organizing document, perhaps one written by someone not in the FSF, that might help us to push in the same direction, rather than fighting each other and being unproductive.

Wait, what?

I know! It’s different! I usually write about total and absolute freedom, but this is a very different tone, and I’m sure I haven’t been clear about what I think is necessary.

The previous “Freedom and Order” post used the Constitution, and the American Revolution, as an example of a successful document establishing order. Well, they needed to provide order for a nation, a set of people, and so they defined ways for those people to give input on their laws.

Perhaps what I’m saying is, we could use a democratically-elected board of people, perhaps with some small amount of pay, who could help create things like codes of conduct, funding for new free projects, and ways for the Free Software movement to be economically viable. The money flowing in and out would likely be nothing compared to the U.S. Congress, but there might be enough to provide for a few “law” makers and a few people to help bring those “laws” to fruition.

OK, I’ve derailed my intent a bit. Let’s get back on track.

The Free Software movement has no real, focused purpose as of right now. A lot of people advocate, and a lot of people make new software, and some people do testing, documentation, translation, et cetera. But, very few people are following any particular goal. They simply make what they need to make in order to do their jobs, or accomplish their own selfish goals. If they want to help the community, they make a project that helps the community, or they triage bugs, or they help people in IRC. If they feel like spreading the word, they advocate. But there’s no central, absolute purpose for the entire movement, and that means a rather unfocused effort from everyone.

For fear of rambling, I’m going to stop now, but I hope I made sufficient sense. Go freely.

Why We Need the GPL

The GNU General Public License (GPL) has been through three major versions. The first, released in 1989, was mostly concerned with preventing the addition of non-free code to a project in order to circumvent the requirement that modified versions of free software (under a license like the GPL) also be distributed under permissive terms. The second version addressed the problem of dual distributions, requiring that if a person was legally incapable of distributing the source code for GPL’d software under a permissive license, they could not distribute it at all. Finally, the third version addressed the problem of “Tivoization”, by preventing hardware manufacturers from forbidding their users to modify the software on their machines. The third version also added the Affero clause, which (if included) would require anyone offering access to the software over a network to also allow modifications and redistribution freely.

The Problem

These versions have all faced one serious recurring controversy: This license, masquerading as a protector of liberty, appears to restrict the users and developers of the software, too! There are similar licenses, like the LGPL, which allow derivative works without permissive licensing, but the GPL and AGPL both require that derivative works be licensed under the GPL, and often under the same version.

The major gripe is that, while the FSF and the GNU project both preach freedom loudly and clearly, they seem hell-bent, from the text of these licenses, to restrict people from doing what they wish with respect to derivative works. This perception appears to be tearing the free software community apart.

The Explanation

I hope, today, to dispel some of the myths. I don’t dispute the facts, here. There appears to be a severe disconnect between the words and deeds of the FSF. But I think that disconnect is justifiable.

Small side note: in addition to majoring in computer science, I am minoring in government, and I’m using all of my time in the government department studying United States constitutional law. The reasons for that decision are many and varied, but it’s a source of much clarity for me, and on this subject in particular, I have found a very interesting parallel between the actions of the FSF and the words of the Supreme Court.

In a case called Regents of the University of California v. Bakke, a case before the Supreme Court in 1978, there was a lot of discussion about affirmative action in state-run universities. Bakke, the respondent, said that the affirmative action program at UC Davis was detrimental to his ability to receive an education. Justice Powell, in a plurality opinion (later affirmed by an opinion in Grutter), upheld the program on the grounds that racial preferences, while generally abhorrent, were necessary in some cases to remedy past wrongs, and to establish justice once more.

Perhaps I’m overplaying my analogy here, but I think the principles are roughly equivalent. The FSF, whether knowingly or not, has instantiated a legal tool that takes away some of the choice from the developers of derivative works in order to prevent further such deprivals in the future. I’m sure that, in a perfect world, many of the people at the FSF would release their code under a public domain license, or maybe the BSD or MIT licenses, that give almost complete freedom to the users. But they’ve seen a severe societal meltdown with respect to digital freedom. The problem they see cannot be solved by mere goodwill towards man, or the charity of many volunteers. The problem needs a legal solution, as well. To create that solution, they devised the GPL.

Other Implications

I think that the GPL isn’t the only part of the free software movement affected by these principles. I think there are a lot of people who view the free software camp as unmoving, unwilling to accept compromise. I hope that this analogy I’ve set forward will help others to understand that many people have been fighting this war for too long, and suffered too many defeats, to allow themselves to give any quarter. That’s not to say that these people aren’t very understanding and helpful, but they will definitely be antagonistic if asked to give advice contrary to their ideals, and I hope that someone out there can understand that at least a little.

With that said, maybe it’s time for the free software community to start thinking in smaller steps. As I put forward in another blog post, maybe we need to start considering the immense administrative difficulties that face people in their struggle for digital freedom. Maybe encouraging someone to use Firefox, or even Chrome, on a Windows computer, is the best thing we can do for them until they truly understand what may be at stake.

As always, thank you for reading, and go freely.

Freedom and Order


I’m a very strange computer scientist. See, I’m minoring in Government. I tell people that it’s because I find both systems to be orderly. I think to some extent, that is very true. But there is a second reason, and both reasons play equally into today’s topic. The second reason is that both systems allow people to protect and exercise their freedoms.

Think about that for a moment: While government is certainly a form of order, it also allows people to be *dis*orderly, so long as they do it within the bounds of the law.

In that way, I think, government is similar to the digital world. I often find myself frustrated by compilers, by errors in programs, and by limitations of protocols (same-origin policy, I’m looking at you), but despite those limitations to the power of computers, these machines allow an entire class of people to be freer than they would have otherwise.

How the Revolution Happened

So, I’m going to try and bring government to you computer people out there. I’ll do it in a very simple way: A history lesson. Namely, about the birth of America.

America, some might say, was born when the Declaration of Independence was signed and sent out to the world, declaring that we were free, and that we hated England’s king. Then, we fought a war. Some claim America was born when we won that war. Finally, we signed a document that organized a government for the 13 colonies–or, as they were now to be known, the 13 states.

But that document, as many are not aware, was *not* the Constitution. It was called the Articles of Confederation.

The Articles set up a very loose federal government to complement, but not to supercede, those of the states. This system, they argued, would preserve local control over local matters, and leave the federal government to deal with federal issues–things like new states joining the union, war debts, and defense of the states. Really, under the Articles, America wasn’t a country at all, but a set of countries that were allied very closely.

Then, it turned out, that plan didn’t work. There was, for about ten years, a rash of rebellions, riots, and absuses of power in the states. There was very little money in the federal government, so the war debt from the Revolution wasn’t getting paid off. The states were all issuing their own currencies, too, so inflation was out of control and almost no interstate commerce would happen, since everyone had different money.

Finally, a group of men gathered in convention to try and rewrite the Articles. They swore to avoid a new system at all costs, but promised to give the federal government a new set of powers that would preserve the new nation’s integrity, and its coffers.

But, of course, those men didn’t just rewrite the Articles. They threw that document out in favor of a new one, called the Constitution. That document had a far stricter set of rules with regards to how the government was set up, and how everyone was to do their part. It ensured the fair representation of each state in the federal structure, and, under the Bill of Rights, explicitly preserved the freedoms of individuals.

Many historians will be rather cynical about the reasons for all of these happenings. First, they will say, the rich land-owners in the colonies didn’t want to pay taxes to Britain at all–never mind whether or not they were represented–so they stirred up revolution in the new world. Then, those same land-owners were assaulted and robbed by the very democracy they helped to erect, and wanted further protection. They realized that order and taxes were necessary in such a large system as a nation.

How the Revolution Needs to Happen

As we all know, this is a blog about technology, so I will stop chatting about history.

The above story about the Revolution is supremely relevant to the Free Software movement today. In drawing the parallel, I believe the Free Software camp is somewhere between writing the Declaration (which document might be parallel to “Why Software Should Not Have Owners”, an article by Richard Stallman) and writing the Constitution. We have realized the need for freedom, and we are fighting a war to get people to realize it, much less actually fight for it. We have some small attention from the public, and that is a step in the right direction.

However, there is an issue with our movement. We have yet to realize the need for order and taxes.

The software industry, as many nonfree software manufacturers will very quickly tell you, is an extremely large system. Many people rely on that industry for jobs. Simply telling those manufacturers and, by proxy, those people, that we simply won’t pay our taxes is not the way to win a war and launch a revolution. There needs to be some order on the other side for those people to be able to accept what we’re saying. Now, however much I think that requirement is satisfied (by Selling Free Software and other fine articles), there seems to still be some confusion about it. So, there does need to be a shift in rhetoric for all Free Software and Open Source Software advocates (who should first shift from their outdated terminology) from talking about price to talking about freedom.

Why Freedom

Freedom, you see, is largely the reason that people followed the Revolution when it came to town. It’s a cause people can believe in, so long as there hasn’t been a case of terrorism in the past few weeks. It’s something people hold dear, and don’t give up quickly. It’s something that they can fight for, and understand. Most importantly, it’s something that doesn’t attack the profits of big companies.

A large portion of Free Software users and advocates seem to use the “price tag” argument more often than is necessary. I say, if a Free Software user or advocate ever *needs* to resort to that argument, they should not be advocating to that person, because that person is not interested in freedom. Alternatively, that person needs, more than anyone, to hear why freedom is important. So, let’s throw out that argument for good. It doesn’t convince people of anything except to buy the cheapest software for the job. In some cases, that software is not free, and does not respect the users’ rights.

Selling Not Software

So then, we all have to ask how software will be produced. Big companies do fund a lot of software production, this is true–but a lot of their effort is wasted. Take the competing anti-viruses, for example. They have all spent the same amount of time fixing the same amount of problems with their software. If they had respected their users, those problems would have taken up a fraction of the time to fix, and the companies could have moved on to better, more lucrative projects.

And notice that, if we abandon the “price tag” argument, there is nothing stopping the distributors of software from selling the copies. The only problems are the lack of source code, the restrictive licenses, and the army of copyright lawyers ready to threaten customers. CDs and downloads-for-money are still perfectly legal–so long as they include the source code and do not restrict the user from using, modifying, or distributing the code in any way.

Pay the Taxes

In short, the Free Software movement needs to realize that, though the “price tag” argument is a convincing one, it will not win arguments, and it certainly will not win freedom. RMS himself has said that if people were to begin using Free Software, but were not taught about why their freedom was important, they would very quickly abandon that freedom in favor of something else. Let’s listen to that argument, and not encourage people who don’t understand freedom to start fighting for it.

We also need to start realizing that while Free Software may come without a price tag, that doesn’t mean it has to. While copying might give some people a free copy, many people will also choose to buy the software just as they would have otherwise. I would encourage people who create Free Software to start selling it, too.