lex naturalis - txwikinger's blog Free Software - Law - Politics

Copyright violations are in general always civil matters, i.e. the damaged parties must fight for their remedy themselves, the only penalty can be damages (even in some legislation these damages can be increased for intentional violations).

There has also been possibilities for criminal actions for copyright law in most countries for a long time. However, the principle for this is in my humble opinion not based on copyright law per se, but an analogy to other areas of fraud. If someone makes a profit based on intentional violation of copyright, and through this process hurts consumers and the public in large, then public prosecution is warranted under criminal law.

This is not different to other legal issues like i.e. breach of contract. Most cases are civil matters. However if someone runs a scam scheme with fraudulent intention in order to obtain profits from it, it is a criminal issue.

In case, these principles can be similarly used for the protection of free software. The sales of free software by a co-operation without the legal rights attached to the users of the software by the free software license like the GPL can be construed as such a fraud based on copyright violation with the intend to obtain profits.

This can now have two different effects. Obviously, one effect is that free software and the freedom rights for the users ( which IMHO should be elevated to human rights anyway), are more strongly protected. The enforcement can be done by the state and their resources in the interest of the public when the damaged parties do not have the resources to pursue their own legal actions.

Some critics might now claim that this would make companies more vary to use free software. However, I believe this is a bogus argument based on FUD. The same is true for any license. Therefore, using proprietary software could create the same situation.

I think, what these thoughts are provoking is a general discussion of a re-balancing of competing rights. To this point of time, copyright law was intended to protect property rights. The criminal actions are justified to uphold and strengthen the property rights as in other areas, i.e. theft, shoplifting etc. Often, violators of civil law escape the consequences of their misdeeds because pursuing them in civil court creates more damages for the plaintiffs (in UK claimants) when the respondents have no money that can be collected for damages.

However, if we look at the way copyright law is used by the GPL copyleft, it becomes obvious that not only the property rights of the authors of software are strengthened, but also some fundamental and essential freedoms of the users of free software as described in Software Freedoms. These principles are more based on rights similar to Human Rights. Such Human Rights are often limiting property rights.

In the past, when such Human Rights were not enforced as strictly, and even today due to the difficulties one encounters when trying to insist of such Human Rights as the absence of discrimination, organization and individual are able to profit by violating Human Rights. Widespread Racism in the UK and US in the 50s and 60s allowed corporations to exploit segments of their populations due to discrimination on ethnic or national grounds. This in turn, allowed corporations to put pressures on wages and salaries for everybody. Therefore, the lack of enforcement strengthened property rights by allowing an inhumane society, the profits of corporations took precedence over Human Rights.

Similarly, the argument of the RIAA and other proponents of the current property-oriented direction of copyright law, are based on the principles of taking away freedoms from everybody for the sake of strengthening property rights of the few. Morally there is no difference in such pursuance of copyright laws as to discrimination on ethnicity, gender, age or other forms.