Captivating capital and copyfighting

From Gender and Tech Resources

Patent and copyright laws support the expansion of the range of creative human activities that can be commodified, paralleling the ways in which capitalism is leading to the commodification of many aspects of social life that before were not considered to have monetary or economic value.


The first informal patent system was developed in Italy during the renaissance, and introduced into the rest of Europe by Venetian glass-blowers to protect their skills against those of local workers. The first recorded patent of invention, a 20-year monopoly for a glass-making process unknown in England at the time, was granted to John of Utynam in 1449, in return for teaching his process to native Englishmen [1].

Patent trolls are companies making money asserting patents against other companies, and do not make a useful product of their own. It is not a new problem. In the 19th century, new technologies like the telegraph were immediately followed by lawsuits. Trolls “follow the money”, hence file suits in innovative industries. The more R&D a company does, the more likely it is to be sued for patent infringement. And increasingly, smaller businesses are targeted as well. Patent trolls drain businesses of billions of dollars a year. And if you have a website -any website- you are a potential target [2].

To combat these annoying and often dangerous legal weapons, the EFF launches the Patent Busting Project to take down some of worst offenders [3].


Different cultural attitudes, social organizations, economic models and legal frameworks are seen to account for why copyright emerges in Europe and not in other parts of the world. Oral societies view knowledge as the product and expression of the collective, rather than individual property. With the introduction of copyright laws in england in 1662, intellectual production comes to be seen as a product of an individual. Copyright covers the form or manner in which ideas and information are expressed. Copyright does not cover the ideas and information themselves. Yet. According to Article I, Section 8, Clause 8 of the U.S. Constitution, "the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." [4]

Software freedom

The earliest license to grant software freedom was the Berkeley Software Distribution (BSD) license. In the fifties and sixties almost all software is produced by computer science researchers and freely shared because sharing of information has long been considered critical to scientific progress for ages by the entire scientific community.

O wait [5]. Rewind. Play: Save for some military projects, software is distributed with the software itself because users often need to modify the software to make it run on different hardware, to fix bugs and to add new functionality.

The BSD license is sometimes called “copycenter”, meaning “Take it down to the copycenter and make as many duplicates as you wish”. These non-copyleft licenses typically grant software freedom to users, but they do not go to any effort to uphold that software freedom for users. In addition, until 1999 the BSD license has a special problem dubbed the “obnoxious BSD advertising clause” causing a plethora of licenses [6].


End of the seventies AT&T makes its master move and distributes early versions of Unix at no cost to government and academic researchers, but these versions do not come with permission to redistribute or to distribute modified versions. Unix systems are characterized by a modular design that is sometimes called the “Unix philosophy”, meaning that the operating system provides a set of simple tools that each perform a limited, well-defined function, with a unified filesystem as the main means of communication and a shell scripting and command language to combine the tools to perform complex workflows [7]. This pre-set affects the mindset of all people working with *nix derivatives.

After it’s escape from AT&T’s Bell Laboratories in the early 1970’s, Unix leads the way to a tree of different versions: recipients of the code all begin developing their own different versions in their own, different ways, for use and sale. Universities, research institutes, government bodies, computer companies all begin using Unix to develop technologies: computer aided design, manufacturing control systems, experimental setups, the internet, …

Proprietary software

In proprietary software licenses the software publisher grants the use of one or more copies of software under a so-called End-User License Agreement (EULA). Written code is copyrighted. Of course, the simplest line of code, like print('Hello World!');, can be rewritten totally independently, without knowledge of the original author, and both parties will own the copyright of their own version (however worthless it may be). But beyond a few lines, code does become “valuable” to companies, enough to throw in licensing and restrictions.

In the seventies operating systems and programming language compilers evolve and software production costs are dramatically increasing. A growing amount of software is for sale only under restrictive license.

Many EULAs assert extensive liability limitations. Most commonly, an EULA will attempt to hold harmless the software licensor in the event that the software causes damage to the user’s computer or data. Most EULAs include terms defining uses of the software such as the number of allowed installations and restrictions on distribution.

Some copyright owners use EULAs in an effort to circumvent limitations the applicable copyright law places on their copyrights, or to expand the scope of control over the work into areas for which copyright protection is denied by law. This type of EULA concurs in aim with DRM and both are in use as alternate methods for widening control over software.


All wrongs reserved

Copyleft originates as a play on the term copyright and suggests a reversal of copyright. It comes from the Tiny BASIC for the Intel 8080. Principia Discordia follows that up with a “kopyleft” statement “all rites reversed” [8]. In 1989 the “GNU General Public License v1.0″ is published. Followed up by the “GNU General Public License v2.0″ in June 1991.

The free software movement is launched in 1983 by Richard Stallman in response to the growing trend of developers blocking the early BSD-like freedoms by only publishing the runnable version of the software and not the modifiable source code.


In 1991, Linus Torvalds releases the Linux kernel, the last piece for assembling a Unix-like and mostly POSIX-compliant computer operating system assembled under the model of free and open-source software development and distribution. Every seed contains an orchard. Linux distributions appear, giving rise to “commonist ideology” [9].

GNU GPL vs Open source

In 1997, Eric Raymond publishes The Cathedral and the Bazaar, a reflective analysis of the hacker community and free-software principles [10]. In 1998, people advocating free software but disagreeing that a social imperative drives them, begin using the term “open-source software” and presenting it as having technical advantages.

In 2006, Novell and M$ form an alliance. The companies also enter into a patent-licensing agreement. Neither company will enforce intellectual property rights against the other’s customers [11].


Version 3 of the GPL appears June 2007 and is the current GPL [12]. And Linus Torvalds says GPL v3 violates everything that GPLv2 stood for [13]. The GPL v3 is many things, one of which is that it is a very complex, technical legal document adressing [14]:

  • GPL v1 and v2 are using language tied to US legal concepts. In GPL 3 new terminology is used for internationalisation of the license.
  • Patents (including the M$/Novell issue)
  • Restrictions (like Tivo’s) in consumer products that take away, though hardware, the ability to modify the software
  • DRM (digital restrictions management)
  • Compatibility issues with some other open source licenses
  • License violations and cures
  • Torrenting executables of GPLed software

It’s the mindset, silly!

Some people insist they do not see a substantial difference between between GNU and Open Source licenses, possibly to avoid conflict, to stop endless debates on the subject in hackerspaces (foo, see RFC 3092[15]), or to create and maintain an illusionary “unity within movements”, but the difference could be substantial. Also in 2007 Richard Stallman writes Why Open Source misses the point of Free Software suggesting the “open source” mindset is a problem [16].

For example in open source, in order to defend its claims of technical superiority, poor quality is a problem to be explained away or a reason to never ever use a particular piece of software. Reason to flame too, if someone points out a foo may be more important than originally thought.

For free software, poor quality is merely a problem: The current perceived state of the piece of software under scrutiny clearly shows discrepancies with (contemporary) expected/desired state. Missing features, glitches, odd seemingly garbled messages, kernel panics, ungraceful crashes, frying of hardware are not a source of shame. Quality is simply not all “there”. Yet. Anyone who wants to, can jump in and solve the problems. Free software has freedom.

Microsoft is failing to convince people to ‘upgrade’ to Windows, whereupon business models are being altered and migration to Linux-based platforms like Android and Iphone, continues uninterrupted. Companies such as Fairphone are putting social values first and opening up the supply chain, and you may think common sense has won [17].

Meanwhile in China ...

Some people say that companies like fairphone is better than freely grabbing, other people contest that, saying it legalises continued plundering similar to how petitioning "authorities" acknowledges "authorities" in their role. That pattern of legalisation seems true for all kinds of commodifications. Back to phones.

Phones require rare-earth metals. China, producing more than 90 percent of the world’s supply of rare-earth minerals, has scant and lax environmental laws. The center of rare-earth mining is Baotou, a city in inner Mongolia with 2.3 million residents that’s become something of a poster child for mining’s ecological wreckage [18]. Even if we take social values into consideration like fairphone does, and we could reduce the environmental risks of mining, we’d still be extracting rare-earth metals. RARE. And in 2014, China’s leading rare earth producer set out to further tighten its grip on the industry [19].

Creative Commons

Creative Commons develops its licenses -inspired in part by the Free Software Foundation’s GNU General Public License (GNU GPL)- alongside a Web application platform to help you license your works freely for certain uses, on certain conditions; or dedicate your works to the public domain [20]. Creative Commons licenses are not compatible with existing free software licenses, most importantly the GPL from the FSF.

Hardware freedom

Open design of hardware is the development of physical products, machines and systems through use of publicly shared design information. The process is generally facilitated by the internet and often performed without monetary compensation. The goals and philosophy are similar (if not same) to that of the free software movement, and is a form of co-creation, where the final product is designed by users, rather than by external stakeholders such as private companies. The most common licenses in use for "freeing hardware" are Creative Commons and the GNU General Public License.

Interesting reads

News and watchdogs


  1. Patents: English and Colonial Origins
  2. The Real Toll of Patent Trolls
  3. Patent Busting Project
  4. Copyright Timeline: A History of Copyright in the United States
  5. Barriers to open science: From big business to Watson and Crick
  6. The BSD License Problem
  7. Unix history and timeline
  8. The Principia Discordia, or, How I Found the Goddess and What I Did To Her When I Found Her - THE MAGNUM OPIATE OF MALACLYPSE THE YOUNGER Wherein Is Explained Absolutely Everything Worth Knowing About Absolutely Anything
  9. critique of the commonist ideology
  10. Internet archive: Cathedral and the Bazaar
  11. Update: Microsoft, Novell strike Linux deal
  12. Version 3 of the GPL
  13. Linus Torvalds says GPL v3 violates everything that GPLv2 stood for
  14. Groklaw: At Your Request, the GPLv2-GPL3 Chart
  15. RFC 3092
  16. Why Open Source misses the point of Free Software
  17. Fairphone
  18. Rare-earth mining in China comes at a heavy cost for local villages
  19. Chinese rare earth giant born
  20. Creative commons