software in the public domain
Reprinted with permission from Alex Oliva.
When I was a kid learning to write my first programs in a programmable calculator with a 1-line display and some 1.4K "program steps" (whatever that meant) of memory, software was not copyrightable in Brazil.
Bill Gates had already published his infamous open letter to hobbyists, in which he complained that people were sharing Altair BASIC, instead of buying "licenses" from Micro-Soft. I put quotes around "licenses" not because Gates used that word himself (he spoke of being paid royalties instead), but because that practice he wished for came to be known as licensing later, even though it doesn't amount to licensing any rights whatsoever.
A license amounts to a grant of permission to do something that requires permission. Copyright law, per international treaties, regulates such activities as copying, adapting, distributing and publicly performing works, none of which overlap with private execution, an activity that, per WIPO international copyright treaties and WTO baselines, isn't reserved to authors, so typically no license is required.
This was true even when software became copyrightable in Brazil, in 1987. At that time, I had moved on from a TRS-80 Model III clone, used in my first programming jobs, to a Commodore 64, then to an MSX I'd won at my first programming competition, and occasionally to my father's PC-compatible, and to friends' Apple II and Commodore Amiga computers.
I recall the legal practices, communities and businesses of software sharing that existed in Brazil before law. After it, some remained for a bit, but they had to move underground and we lost these freedoms just as the military dictatorship waned and brought about other political freedoms.
Since 1998, Brazil has largely dropped authors' moral rights from software, so corporations don't have to give credit to the authors, but introduced into law the weird notion of requiring a license to do something that, to the best of my knowledge, had never required permission anywhere in the world, namely, to run programs.
One has to wonder how much lobbying and arm-twisting was required to buy these pieces of legislation just as the US passed the DMCA...
Oddly, we also lowered the term of copyright over software to 50 years, the bare minimum mandated by the WTO. Not WIPO, whose treaties are voluntary, but WTO, whose trade rules give rise to trade sanctions if not adopted.
Fifty years after the infamous open letter to hobbyists, selling permissions to do nothing that requires permission has turned into a very profitable business model. Micro-Soft got renamed and grew into a very powerful monopoly abuser.
But since it's 50 years after the letter, the program it referred to, published the previous year, 1975, has now fulfilled the purpose of granting exclusive copyrights in the first place: it has finally been integrated in the public domain in Brazil. Rejoice! As long as you can still find a copy of that program, presumably on paper tape, and a computer capable of running it, you don't need anyone's permission to copy it, or to run it, in Brazil.
Adapting it would be more of a challenge without access to source code. IMHO, copyrights over software should have to be registered with the complete corresponding sources, for the sources to be made available to the public when the software went into the public domain, so that the people's public domain rights wouldn't be curtailed by such artificial limitations as deprivation of source code.
It's crazy that, despite 50 years' being the bare minimum, copyright over software lasts that incredibly long. I'm a grey-bearded grandfather now, and my granddaughter is older than I was when this program was first published. Computers of that era belong in museums.
It feels like granting such long exclusive rights over software is some sort of scam, given how little the sourceless program contributes to the public doman after so much time. Without sources, even in the public domain, it remains nonfree software, so it's not so much of a contribution as it is detrimental to community.
Even the ability to copy and run such public-domain programs may be rendered useless by the abusive trend of requiring permission from the operating system vendor to install programs: even if, 50 years from now, you could still find a working portable tracking device (some people call them smartphones; what kind of user does it take to find them smart?), how would you get permission to install programs on it when the TRApp store is long gone, and so is the proprietary networking infrastructure generation the device is compatible with, that you'd depend on to contact the store?
Now, other jurisdictions didn't set the term of copyrights over software to WTO's bare minimum. There are places where it could last for unimaginable 120 years. This means that a hypothetical program released by a corporation the same year as Einstein's special relativity theory got published, 1905, would have entered the public domain this year, 2026. That's insane!
It took 47 years from quantum mechanics to the transistor, and transistors have existed for almost 80 years. A program written by a hypothetical 15-year-old in 1900, who lived to be 80, would not enter the public domain for another 10 years from now where copyrighted works enter the public domain 70 years after the death of the author. That's bollocks!
Unlike Brazil, most of the world won't experience welcoming software into the public domain by copyright expiration for many more years, and even then, it will be very limited due to unavailability of source code, of hardware to run it, and of control over the hardware. And that's assuming that copyright terms don't get further extended.
Come to think of it, it sort of will be, at least for software, even if the letter of the law doesn't change. That's because the pace of technological advancement has consistently accelerated over time, and it's likely to keep on accelerating unless we self destruct. If Altair BASIC feels ancient and mostly useless 50 years after its release, a program released today will feel a lot more ancient and useless another 50 years from now.
Now, don't get me wrong. The first (non-GNU) Emacs came out in 1976, so it is ancient indeed, and it is about to join the public domain in Brazil. The GNU Emacs versions that people use nowadays have been rewritten, updated and maintained over the decades, and will presumably continue to be. While the old versions (for TECO) may feel anachronistic, newer ones have always felt fresh and joyous since I started using and updating it in 1991.
When the earlier ones join the public domain, they may bring useful contributions to society, even if they weren't exactly free software: provided that their source code is available, their entering the public domain will make them undoubtedly free software, and everyone will be allowed to learn, share, and build upon them, as intended for the public domain.
As for those versions that are already undoubtedly free software, their joining the public domain won't make them more of a contribution, because everyone can already do whatever one might legitimately wish to do with the software (hurting others by denying them control over their computing is not a legitimate wish IMHO), and it could make them less, because we'd lose copyleft defenses against such abusive uses.
That's not an argument to extend copyrights. Copyrights are an instrument of power, and for every program defended with copyleft, to protect the freedoms that users need to control their digital lives (by granting users freedoms, but not granting powers that could be abused to deny users freedoms), there are zillions of other programs that attack their users. Shrinking copyright terms would thus be an overall positive, even if our defenses wouldn't last as long.
So blong, █
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