12.15.19

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Software Freedom and The U.S. Constitution

Posted in Free/Libre Software, FSF, Law at 5:50 am by Dr. Roy Schestowitz

By figosdev

US Constitution

Summary: “We need to stand for the freedom to not use the software — we need to enjoy that freedom without giving up the rest of the existing Free software ecosystem.”

I think it’s unlikely that Stallman was considering the Constitution as the primary inspiration for the Free Software Definition. One reason I think it’s unlikely is I’ve never read that he did, and he’s the sort of person to say so more than once. But whether intentionally or inadvertently, I think what he did is actually create a constitution for software users.

The United States Constitution represents the nature of the American government, according to the will of the people. This is the nicest way of putting it, as a “2/3 majority” is not exactly what people sometimes assume it is. All the same, the British monarchy invites someone to create a government — and in the Constitution, Americans provide their consent to the government’s existence.

In order for this consent to be reached, a list of amendments had to be added. The states would not agree to ratify the Constitution if it created too much centralised authority, and the Bill of Rights was a list of deal-breakers — they were freedoms that were demanded before consent would be given.

“I think it’s unlikely that Stallman was considering the Constitution as the primary inspiration for the Free Software Definition.”Obviously, I am not going to propose that the Free software Definition is like the Constitution in every way. But I think some of the similarities are instructive, or at least interesting.

The Free software Definition began with three freedoms, including the rights to study, change and share any software that met this definition. If a law violates the Constitution, it is invalid and should be struck down. If software comes with a license that denies one of these freedoms, it is considered non-free and should either be avoided or (according to those who consider software freedom more ethically imperative than license restrictions) disobeyed. Personally, I prefer to avoid using software that doesn’t offer the freedoms in the FSD.

As to what gives people any moral right to disobey a software license that denies the user the rights to control their own computer, it goes back to the idea that just laws should be followed, but unjust laws should not. Who decides which laws are which? Ultimately, it is the people whose decision matters. Sure, that complicates things, but that is the nature of ethics.

“As to what gives people any moral right to disobey a software license that denies the user the rights to control their own computer, it goes back to the idea that just laws should be followed, but unjust laws should not.”I am generally happy to simply boycott non-free software or at least work to remove it from the computers that I control, because I believe we create a better world for computer users and even developers when we do this. But when it comes to other works, such as books and movies and music, disobeying unjust laws becomes very important and also extremely common — almost universal. So unless you wish to plead a very special case for obeying unjust software licenses, I can’t fully disagree with at least the concept of disobeying them, even if I think there are more practical (even generally safer, one might add wiser) alternatives like using Free software instead.

The most common protest of this reasoning is that who is going to pay artists or programmers for their work? What Stallman says about this with regards to software development is well known.

With regards to artists, it is probably easier to make money (on average) as a musician now than at any other point in history, and people have more unpaid access to music than at any point in history as well. The existence of free libraries has the effect of increasing, rather than diminishing author revenue, because libraries lead to better book sales. Even if you’ve read a book, the odds are increased you will buy that book as a gift, and so on. These facts fly in the face of rhetoric from monopolists and copyright expansionists.

There are also ways for programmers to make money that don’t involve the very predatory nature of end-user-license agreements and non-free software licenses.

Just as the Constitution and Bill of Rights outlined a system that the people were willing to consent to, the Free software Definition outlines a system that free users and developers are willing to participate in. For those who believe Free software is vital, they do not consent to software licenses that violate the Four Freedoms.

Of course it is Four Freedoms now, because like the Constitution, the Free software Definition was eventually amended to include the freedom to use the software, for any purpose. So we had the freedom to study, change, share the software — plus the obvious freedom to use the software.

“There are also ways for programmers to make money that don’t involve the very predatory nature of end-user-license agreements and non-free software licenses.”It’s not very practical to study, change or share the software if it can’t be used, but adding the freedom to use the software clarifies an important point — the freedom to use the software can be unreasonably limited. DRM made the arguably implicit freedom to use worth clarifying and making explicit. But does it limit the freedom to change the software?

A sophist may tell you that the freedom to change the software includes the freedom to change it so that other people can’t use it. This is sophistry because that comes down to the freedom to limit the freedom of others. The freedom to change the software never really included the freedom to change it so that others can’t use it, because the freedom to change it also implies the freedom of others to change it so they can use it.

“A sophist may tell you that the freedom to change the software includes the freedom to change it so that other people can’t use it. This is sophistry because that comes down to the freedom to limit the freedom of others.”Which is more relevant to freedom, really–the freedom to change the software so people can’t use it, or the freedom to change it so people can? Clearly if you have the freedom to change it, you have the freedom to change it so you can use it! So freedom 0 is not an amendment that violates freedom 3 (or at least, I firmly believe this is better reasoning than the alternative.)

With regards to an amendment that says you have the freedom to NOT run the software, a freedom 4, I will apply the same kind of reasoning. Let’s look at the exact wording of Peter Boughton’s freedom 4 as I’ve tailored it to fit the Four Freedoms:

The freedom to NOT run the software, to be free to avoid vendor lock-in through appropriate modularization/encapsulation and minimized dependencies; meaning any Free software can be replaced with a user’s preferred alternatives (freedom 4).

And here are the exact original words for comparison:

Here would be my fifth: replace – the freedom to not run the software, to be free to avoid vendor lock-in through appropriate modularization/encapsulation and minimized dependencies – meaning any Free software can be replaced with a user’s preferred alternatives.

“Up till now, Linux has greatly benefited from the integration / componentization model pushed by previous UNIX’s. Additionally, the organization of Apache was simplified by the relatively simple, fault tolerant specifications of the HTTP protocol and UNIX server application design.” https://www.gnu.org/software/fsfe/projects/ms-vs-eu/halloween1.html

Let’s look at these key words, which are bound to be disputed as compatible with the existing freedoms:

A. “the freedom to not run the software,”

B. “to be free to avoid vendor lock-in through appropriate modularization/encapsulation and minimized dependencies -”

C. “meaning any Free software can be replaced with a user’s preferred alternatives.”

Regarding A., if you have the freedom to change the software (freedom 3), which is more important — the “freedom” to change the software so users have no choice but to run it, or the freedom to change it so you have the choice?

Regarding B., if you have the freedom to change the software, which is more important — the freedom to change the software so as to avoid vendor lock-in, or the freedom to change the software to create it?

Regarding C., which is more important, the freedom to change the software so components can be changed or replaced, or the freedom to change it so that components cannot be?

“If you look around, you can see people spending years to remove lock-in created by very deliberate and obvious (and of course, sometimes denied but sometimes, even gloated about!) effort to force people to use the software.”It is sophisty to claim that Free software authors have a right to create increasing amounts of lock-in. The more lock-in they create, the less free the user is — the less control they have over their computing.
Taken to its extreme, the user has no freedom 3 at all. So why would we call it “freedom” when suddenly it is only halfway there? There is no crime on Earth which does not suffer from similar pedantry used to deny the problem — all the way up to people and governments not taking action against genocide because essentially, “how do we know it’s really genocide if some of them are still around?”

“OSS projects have been able to gain a foothold in many server applications because of the wide utility of highly commoditized, simple protocols. By extending these protocols and developing new protocols, we can deny OSS projects entry into the market.” https://www.gnu.org/software/fsfe/projects/ms-vs-eu/halloween1.html

As with freedom 0, the freedom to use outweighs any “freedom” to change software so as to lock out the user with Tivoisation. With freedom 4, the freedom to choose not to use outweighs the “freedom” to change in a way that forces people to use software.

As to whether people are being “forced” to use software via lock-in, again, that’s the hardest thing to prove, but that doesn’t mean you can’t tell. If you look around, you can see people spending years to remove lock-in created by very deliberate and obvious (and of course, sometimes denied but sometimes, even gloated about!) effort to force people to use the software.

“There are similar problems with the Constitution today.”The freedom to not use the software was for most of our history, implicit until these attacks came along 5 or more years ago. The fifth freedom makes that freedom explicit.

The freedom to to use the software was also implicit, at least with Free software, until DRM came along. It was most likely DRM that made freedom 0 necessary to reinforce the other three freedoms. It is considered more fundamental — it supports the other freedoms.

The freedom to not use the software supports the freedom to change the software. If you are being effectively forced to use software, if your entire software ecosystem is being attacked in a way that makes it take half a decade to remove the offending software, if running away from it and boycotting it only results in it steamrolling through every distro you try, even the ones that exist specifically for the purpose of avoiding it — then you have a real problem.

“The First Amendment is a limitation on Congress to abridge the freedom of speech.”There are similar problems with the Constitution today. For both the Constitution and the Free software ecosystem, the overarching reason that freedom is threatened is that both the country and Free software are being taken over by the same monopolistic entities that Free software (and the United States) were created to resist.

The First Amendment is a limitation on Congress to abridge the freedom of speech. It is from this freedom of speech that software freedom (software is, very easily, a form of speech — it is a written work, and as some of us argue it ought to be as unabridged as the right to do mathematics) is easiest and most obvious to justify as a human right.

And yet worse in terms of precedents than abridging free speech is compelled speech. Compelled speech has its ethical domain in P.O.W. camps and totalitarian regimes, the sort of regimes that Microsoft has enjoyed creating with its software. Do not turn off your computer, we will these run updates now, whether you need to turn it off or not. Compelled speech violates the freedom of thought, not just the freedom of speech.

“We’ve seen Microsoft play this game before, and they’re very good at it. When it works, Microsoft wins a monopoly lock. Customers lose.” https://www.gnu.org/software/fsfe/projects/ms-vs-eu/halloween1.html

“Of course we should resist compelled software, with the same disdain and distrust we reserve for compelled speech. The alternative to this compelled software continues to be attacked and eroded.”Compelled software is the theft your CPU cycles, a denial of service attack on the installment plan. If you decide to spend those cycles, that’s one thing. But traditionally, software that uses those cycles without the permission of the user was called malware.

Of course we should resist compelled software, with the same disdain and distrust we reserve for compelled speech. The alternative to this compelled software continues to be attacked and eroded.

The legitimacy and the institution of those who claim to stand for software freedom is hurt when they excuse increasing and incessant attempts to compel oppressive and overbearing corporate software, as much as it hurts the legitimacy and office of a president who signs unconstitutional laws and orders. These are people who speak of freedom, while signing it away in our name. And they ought to be impeached for it, but at the very least they should be roundly criticised and condemned.

Freedom 0, to use the software for any purpose, could be said (metaphorically) to go back at least as far as the Declaration of Independence and that the right to “Life, Liberty and the pursuit of Happiness.” I am aware that “Happiness” meant “wealth” and I am taking a few liberties with this metaphor, to be certain. The Constitution and the Declaration were not the first things of their kind at any rate, as with GNU they also took some inspiration from older documents and systems.

“The original goal of the patent system for example, was to give incentive for people to document their inventions and avoid relying as heavily on trade secrets.”Freedom 1, the freedom to study the software, is the very basis of science, education and free thinking. Article I of the Constitution offers the only justification for the monopolies of today as “To promote the Progress of Science and useful Arts…” The original goal of the patent system for example, was to give incentive for people to document their inventions and avoid relying as heavily on trade secrets.

It was intended to increase the ability of people to study and improve (change) inventions, rather than lock them up indefinitely. This is why all monopolies that Congress may grant can only be granted “for limited times.” All inventions are intended to enter the public domain, and the monopolies are granted as an incentive to help that along and encourage contribution to that public domain.

Freedom 2, the freedom to share the software, was inherent to all works during the framing the Constitution — all works were in the public domain, and no real restriction on sharing them (only publishing, not even non-commercial copying) existed. In fact for the first 204 years of the existence of the USA, until 1980, there was no restriction on sharing software, as copyright did not apply to software at all until that year.

Freedom 3, the freedom to change the software, is built into the constitution as well.

As with freedom 3 in the Free software Definition, this constitutional freedom is one of the originals, as found in Article V. You could call this “The fifth freedom of the Constitution” (rather than the Fifth Amendment) as Article V. states, among few other things:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;

In plain English, the Constitution itself can be amended either by Congress, or if Congress is corrupt or otherwise uncooperative, “when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof”.

By this process, not only can you change the laws (the software) but the Constitution itself; even if the federal government is corrupt or otherwise uncooperative.

Article V not only lets you change the software, it gives you the freedom to not run it, and even the ability to peacefully dissolve the government itself.

“Article V not only lets you change the software, it gives you the freedom to not run it, and even the ability to peacefully dissolve the government itself.”On paper at least, there is no freedom that Americans do not enjoy. But despite having that freedom on paper, we know that corporations deny us basic freedoms every day. They are entrenched, and our lack of greater attention to freedom costs us our wealth, our health and indeed our freedom.

The freedom to not use the software is implied in the freedom to change it, but freedom 0 was added to clarify and codify what was implicit before.

To fulfill freedom 3, we should now clarify and codify the freedom to not run the software that was implicit until it was (as with DRM violating what is now freedom 0) so thoroughly and routinely violated and threatened for years now, until the present day.

I happen to think that the wording of freedom 4 is acceptable as it is, but the freedom to not use the software must remain inviolate, and it is time we stood for that freedom and (as we do regarding other forms of non-Free software.)

Remember that it is the Constitution that outlines your freedom in the United States, and the laws that try to make it work. The laws of the nation are not what fundamentally define your freedom.

Similarly, it is the Free software Definition, not Free software licenses, that actually define your freedom as a proponent of Free software. GPL 2 left you “free in license only” when it came to Tivoisation, and GPL 3 fixed that to protect freedom 0 better than the GPL ever had previously.

“Licenses do not guarantee freedom. They try to make it work.”This is very important:

Tivoisation, despite GPL 2 demonstrates that compliance with the GPL could not by itself prove that your software is sufficiently free.

It is just as ridiculous to say that an act’s compliance with American law proves that you are free.

If software is compliant with the latest version of the GPL, that provides good evidence that it is Free software, but it is not proof.
Licenses do not guarantee freedom. They try to make it work.

Software must comply with the Four Freedoms at least, in order to be Free software.

“Software must comply with the Four Freedoms at least, in order to be Free software.”In other words, it is possible to have software under the GPL 2 or (potentially even the) GPL 3 license, that actually violates freedom 3.

“The objective is to make the new protocols a checklist item for gullible corporate buyers, while simultaneously making the writing of third-party symbiotes for Microsoft programs next to impossible. (And anyone who succeeds gets bought out.)” https://www.gnu.org/software/fsfe/projects/ms-vs-eu/halloween1.html

“We need to stand for the freedom to not use the software — we need to enjoy that freedom without giving up the rest of the existing Free software ecosystem.”What is not possible to say without question is “of course it respects your freedom, it is under a free license.” This is a fallacious dismissal, and can be made in error. People who rely on this argument to prove software is free really should recognise that it is unsound and already once shown to be untrue. This doesn’t dispute that GPL compliance is a very good indicator, in most instances, but it does not automatically mean that your software is free.

We need to stand for the freedom to not use the software — we need to enjoy that freedom without giving up the rest of the existing Free software ecosystem. Another way of saying exactly that, is that we need modularity, or “appropriate modularization/encapsulation and minimized dependencies” in order for the user to be free.

Long Live Stallman, and Happy Hacking.

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