Aaron Williamson's webl

When the White House first began posting photographs taken by its official photographer on Flickr, it caused a minor kerfuffle about licensing: the photos were posted under a Creative Commons Attribution (CC-BY) license, even though works of the U.S. government are in the public domain.  It turned out that the White House chose CC-BY because “public domain” wasn’t an option Flickr’s interface offered, and CC-BY is the least-restrictive CC license.  In short order, Flickr added a “United States Government Work” option for the White House and the whole thing was fixed.

Sort of.

A friend just posted about a White House photo on Flickr, which is appropriately designated as a United States Government Work.  However, beneath the photo is the following text:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, or promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

Several things about the section in bold are problematic.  The first is that it contradicts the law, and the government’s own statement of the law (linked to from the Flickr page), by prohibiting derivative works as well as, it would seem, many other permissible uses.  The limitation to publication by news organizations contradicts the public’s right to distribute copies of the photos, and to display them.  The release by “the subject(s) of the photograph” may be intended to remind users that some states recognize individuals’ rights to the use of their likeness in certain limited contexts (recall another Flickr-related licensing dispute), but those laws do not justify a broad proscription on use by anyone other than news organizations.

Maybe after one more time around, the White House will figure out what “public domain” really means.

Matt Asay today springs to the defense of the widows and orphans over at Google and their comprehensive prosecution of the Google Chrome trademark. Google sent a DMCA notice to the developer of ChromePlugins.org, demanding he stop using their logos and a remix of their adorable comic, and the developer was understandably upset. Asay’s enthusiasm for Google’s cause is characteristic of his business-first approach to the Business of Open Source (though one wonders if he’s confused Google’s duty to police its trademarks for his own), but his high-handed tone is uncalled-for and his conclusions, though brief, are rife with oversimplification.

Asay responds to a rather balanced account of the enforcement with a volley of fake quotes attributed to god-knows-who: open source means “open to pilfer trademarks” and is “a stick-in-the-eye to ‘The (IP) Man’” and that all related rights are “up for grabs.” He bids the unidentified “some” people espousing these non-quotes, “pay attention… you’re wrong.”

The substance¹ of Asay’s argument is a familiar truism: open source copyright licenses are instruments of copyright law. And as he says, “without copyright there is no copyleft.” But the implication that free and open source software depends upon copyright law (and this must be the implication or there is no point at all) is wrong (and doubly wrong because he italicizes it). Were copyright abolished and the default reset to “no rights reserved,” it would be a trivial matter indeed to allow others to modify my source code — I wouldn’t even need a license, because I would have no right to exclude.  It’s true that under a no-copyright regime, copyleft would break — I couldn’t use my right to exclude to compel others to make available source code they build on top of mine. But copyleft was devised in response to copyright, not in affirmation of it. In the GNU Manifesto which launched GNU and eventually the FSF, rms’s stated goal was to combat the increasing proprietarization of software. If software could not be made proprietary, copyleft may have been unnecessary. Of course, a company could still attain a sort of de facto proprietarization by controlling access to their source, but this would be much less effective under a system that didn’t punish reverse engineering or the use of decompiled or leaked source code.

Maybe abolition of copyright isn’t the answer, but copyright (much less in its present captive state²) is certainly not the only means to software freedom. And the mere existense of exclusive rights, even if similar rights are used to beneficial ends, is no justification for anti-social behavior, whether Google’s or Asay’s.

1. And here more credible claimants to the title “substance,” such as plastic and cocaine, will forgive my lax usage. [↩]
2. My colleague Bradley Kuhn, who has said all of this before, has proposed a regime under which registrants of a copyright in software are required to deposit the entire source and in exchange are given 3 years of exclusive rights to it, after which their code becomes public domain. While not the only solution, or a universally agreeable one, it’s certainly imaginable. [↩]