The right to marry and the right to source code

by Andy Oram

Richard Stallman led the way for decades with his twin calls for
"information freedom" and the "right to share." And for decades the
campaign was seen as idiosyncratic and marginal. Only during the past five
years--with the triumph of open source, the passage and abuse of the
DMCA, and the popularity of peer-to-peer--have large numbers of people
seen the link between information and the right to lead modern lives
in the way we like.



And still it seems quixotic to call for free software in government
and other public fora. The movement remains on the fringe.



Perceptions and mores can change fast, though. This occurred to me as
I researched the gay marriage issue, which was not spawned in
Massachusetts but received its biggest boost to date here, with a
Supreme Judicial Court ruling on November 18 and a circus-like legislative
session in mid-February where defenders of gay rights amazingly beat
back a hastily organized reaction. The sudden notoriety of this issue
in an election year can distract us from the realization that this is
history in the making.



Like the free software movement, the movement for gay marriage started
literally on the fringes of the country. Hawaii and Vermont? Perfectly
nice places, but who would expect the rest of America to follow their
lead? (Or the Netherlands, which already bore the shame of sane
policies toward marijuana use.) Now that the gay marriage genie is
out of the bottle, and spreading to San Francisco and other cities,
putting it back will be more of a task than taking a morning-after
pill.



To advance civil rights, the Supreme Judicial Court created the odd
doctrine that the right of gays and lesbians to marry had always been
in the Massachusetts Constitution. By their legal arguments, had two
women walked into Boston City Hall in 1780 and demanded a marriage
certificate, the black-suited inheritors of Cotton Mather's and
Jonathan Edwards's traditions would have been obliged to dip their
quill pens in ink forthwith.



But this is not a case of "activist judges," as claimed by George
W. Bush (the most shameless manipulator of politics on the judicial
bench) but of a shift in public awareness that is tangible and
real. As a speaker pointed out at a forum on marriage I attended this
week, historians in a couple decades will judge our approach to gay
marriage the way we judge the black civil rights movement. The speaker
told us to ask our state legislators, "Would you like to come off as
Strom Thurmond or as Bobby Kennedy?" In the wake of the Massachusetts
court ruling, millions of gays and lesbians and their supporters are
suddenly asking, "Why not?"



So what does all this have to say about government and public uses of
software? The status quo here--that the vast majority of people cannot
see the source code of the software they use every day--is an
incomparably recent and superficial tradition, compared to that of
heterosexual-only marriage. As Bill Joy likes to point out, early
programmers came from an academic tradition and published their code
as a matter of course, just like other research results.



In a country obsessed with proprietary ownership of information
(witness the recent re-introduction of a bill protecting databases, an
issue I treated at length in another
article),
it's natural to encounter a visceral resistance to free software, just
as there's a visceral resistance among the public to applying the
concept "marriage" to gay relationships that are pretty much
mainstream. But in both cases, the trend is inevitable and public
opinion is likely to shift quickly.



Companies certainly have a right to keep source code secret (and let
us not forget that copyright is the legal and traditional basis of all
free software licenses, including the GPL). But the powerful arguments
for introducing free software into government institutions, where
feasible, are growing louder and louder.



We argue about costs and security and support, but what about rights?
If free software in public agencies was redefined as a right, the
debate would change radically--and it soon might.



The biggest no-brainer argument for free software comes in the area of
voting machines. The myriad requirements for traceability and
anonymity probably makes it impossible ever to have secure,
software-only voting machines. But whatever equipment we have should
be open to a full software accounting. Otherwise, elections would be
just as crooked as if poll monitors were excluded from vote-counting.



In other areas of government, too, the realization is spreading that
open is better. Munich and Extremadura , along with a few other
localities and agencies, are leading the way. All we need is a raft of
stories about how somebody spent $500 and fixed a bug that was holding
up public services, or how easy it was to switch support contracts.



Then the inkling of the early free software proponents will turn into
a rushing tide. Arguments against software freedom in systems the
public depends on will be thrust aside. Government services and open
source software will become almost synonymous.


When is it useful to talk of rights?


10 Comments

zatoichi
2004-03-04 09:15:11
Puh-lease

But this is not a case of "activist judges," as claimed by George W. Bush (the most shameless manipulator of politics on the judicial bench) but of a shift in public awareness that is tangible and real. As a speaker pointed out at a forum on marriage I attended this week, historians in a couple decades will judge our approach to gay marriage the way we judge the black civil rights movement. The speaker told us to ask our state legislators, "Would you like to come off as Strom Thurmond or as Bobby Kennedy?" In the wake of the Massachusetts court ruling, millions of gays and lesbians and their supporters are suddenly asking, "Why not?"


Why not? The same reason we do not have incestous marriages. The same reason we do not have polygamous marriages.


Everyone has the same opportunity to marry. It is against the law to marry the SAME sex. So in effect you would be creating a special class of people and not an equal class.


My question is, when does it end? Do we stop at same-sex marriages? Do we allow incestuous marriages? What about lowering the age of consent so that men and boys can have sex? Whoa. Guess what? There is a group (MANBLA) that is after just that. We should not allow same-sex marriages, period. Don't say it will never happen. That is what was said about abortion. That is what the Supreme Court said when they made sodomy legal.


byamabe
2004-03-04 10:29:25
Source Code
I would like to define binaries and executables as source code. Anyone can look at my binaries. My program is therefore open source. Don't like changing the meaning and purpose of open source? Others don't like the changing of the meaning and purpose of marriage?
cascadefx
2004-03-04 10:34:47
Puh-lease
Puh-lease


Exactly...


Why not? The same reason we do not have incestous marriages. The same reason we do not have polygamous marriages.


Not exactly. Incestuous marriages could result in a child and our understanding of genetics (even as far back as the 1700's and beyond in agricultural memory) is that this is generally harmful to the offspring (in a survivability sense). So it is nixed. Polygamy probably has similar concerns, if the genetics of one man gets spread enough through a polygamous community, you may start reaping nasty genetic consequences of future offspring potentially marrying close genetic ties (which could be genetically disastrous).


Gay marriage doesn't pose this issue (no reproduction to speak of). If "reproduction" does occur, it is surrogate and (not surprisingly) there are laws surrounding surragacy that attempt to prevent the genetic issues raised above.


As far are you other (odd) argument... relationships between gay men and women happen between consenting adults, if they don't there are laws against that that protect the younger (weaker... in societal terms) individual... as there are laws against heterosexual couplings with underage people.


I don't see what this fear is all about. It is generally baseless. Besides, I say if I have to undergo the tax burden of being married... long term gay couples contribute to the tax base in the same way (that's an argument that should stick with the Republicans).

zatoichi
2004-03-04 13:51:43
Ah not so...

You raise the points of incest being genetically harmful. However, your argument holds on the same-sex side as well. If you look at studies done within the homosexual community you will find that it is harmful. Homosexuals have a lifespan 20-25% less than the current average. Wonder why that is? You only have to look at the scientific studies done to see the many myriad problems homosexual lifestyles present. I am not talking about biased studies done by the right or left but by centrists wanting to know the answer of "is homosexuality harmful".


As far as the "laws" about consenting adults. That is another area where you are woefully ignorant. There is a battle going on to lower the age of consent. You let it slide a little and the avalanche starts. That is a historical fact for anything that has happened recently.


Noone talked about the possibility about same-sex marriage when I was growing because it was not an issue. There has been a history of 5000 years from cultures all around the world affirming that marriage is between a man and a woman. And that is what marriage is.

kollivier
2004-03-04 14:39:54
Ah not so...
"You raise the points of incest being genetically harmful. However, your argument holds on the same-sex side as well. If you look at studies done within the homosexual community you will find that it is harmful. Homosexuals have a lifespan 20-25% less than the current average. Wonder why that is? You only have to look at the scientific studies done to see the many myriad problems homosexual lifestyles present. I am not talking about biased studies done by the right or left but by centrists wanting to know the answer of "is homosexuality harmful"."


An incestuous *marriage* would very likely result in children, which can have a negative impact not only on the couple, or family, but in time the entire local society. Similarly, incestuous sex can directly result in children with deformities and other major health problems, which should be avoided at all cost.


Most of the 'harmful' aspects of a homosexual lifestyle are a result of having *many* partners. So, I don't see how letting homosexual couples show their commitment harms society, particularly in a sense of physical health as in the points you've described. In fact, it may reduce the risk homosexuals are exposed to.


"Noone talked about the possibility about same-sex marriage when I was growing because it was not an issue. There has been a history of 5000 years from cultures all around the world affirming that marriage is between a man and a woman. And that is what marriage is."


And by this argument, we should still have slavery, we should still stone adulterers, and the woman should stay at home and raise children. We should also allow people to walk around with guns, or in other countries, swords. (Even blind old men, apparently. =) These all were firmly held traditions for a long time that most people of the time agreed with. And most people today feel that the people of the time were very wrong for thinking those things, or that those laws no longer apply, and the laws reflect that feeling. Laws change as times change.


The law is about doing what's best for society as a whole, not about regulating individuals' behavior, although in many points during history that has been forgotten. You're free to disagree with anyone's behavior, think it's unethical, etc., but unless you can prove that it has a concrete negative impact on society, then it should not be up to legislature to deal with it. You don't like certain individuals' behavior? Teach your kids not to do it, and don't do it yourself. Don't associate with anyone who does do it. That's your right. But it's not fair to others for you to suggest forbidding something just because some, or even many, people think it's not a good idea. There needs to be a higher standard when 250 million people's lives could be affected.


Oh well, this is way off topic and IMHO I see the original poster's analogy but I think it was a bit too heated to keep folks focused on his main point. But I do agree that the open source movement won't be going away, and will be growing, in the future. I think he is right that, in a way, the open source "movement" is a movement just like civil rights movements in the past. So maybe that's what you should take out of this. =)

vainst1k
2004-03-04 15:23:07
Puh-lease, indeed.
Everyone has the same opportunity to marry. It is against the law to marry the SAME sex.


That sounds very much like "everyone has the same opportunity to marry... It is against the law to marry a person of the OPPOSITE race".


Go fall on your tinfoil sword already, zatoichi.

caseydk
2004-03-05 04:59:47
Ah not so...
An incestuous *marriage* would very likely result in children, which can have a negative impact not only on the couple, or family, but in time the entire local society. Similarly, incestuous sex can directly result in children with deformities and other major health problems, which should be avoided at all cost.


By that logic, we should require genetic tests of *ALL* couples before they are married. Genetic deformities do not just come from the offspring of siblings.


The law is about doing what's best for society as a whole, not about regulating individuals' behavior, although in many points during history that has been forgotten. You're free to disagree with anyone's behavior, think it's unethical, etc., but unless you can prove that it has a concrete negative impact on society, then it should not be up to legislature to deal with it.


If this is true, then why bother having state marriage at all? Just declare yourself "married" and be done with it.

caseydk
2004-03-05 05:01:35
Puh-lease
Everyone has the same opportunity to marry. It is against the law to marry the SAME sex. So in effect you would be creating a special class of people and not an equal class.


No, everyone has the permission of the state to marry if they meet the established requirements.


If you don't care if the state acknowledges the marriage, then you don't have to meet their requirements.

rjelliffe
2004-03-07 00:57:10
Ah not so...
Presuming you are referring to the paper in the International Journal for Epidemiology, the authors of that study published a subsequent letter commenting on why it is bogus to use that 20-25% figure in that way, see
"http://ije.oupjournals.org/cgi/content/full/30/6/1499">
http://ije.oupjournals.org/cgi/content/full/30/6/1499
.
That study said that, at the worst time of the
AIDS epidemic and before safe sex campaigns or effective therapy had been found, in one fairly gay city there would be an 8-20% decrease in life expectancy if the same conditions continued.
(The variation in numbers seems to be because
of the difficulty in calculation how much of a population is actively gay: 2% 5% 10%?)


At that time HIV probably would kill you within

2 years
, but now, if you have access to the
therapies and no other complications, the life expectency may be
"http://www.thebody.com/Forums/AIDS/Starting/Current/Q154418.html"
>near normal
.


A second study, comparing five years later, but still before the modern anti-virals, found an
improvement of several years. See
"http://www.aegis.com/aidsline/2000/sep/A0091430.html"
>http://www.aegis.com/aidsline/2000/sep/A0091430.html


For an amusing look at another source of numbers, see
"http://slate.msn.com/default.aspx?id=2098">
http://slate.msn.com/default.aspx?id=2098
.


We need marriage to provide social and legal
stability for children, and to support and
bind couples
during their lifetimes together. Gays and lesbians
are increasingly forming couples and often have
children. To deny gay marriages (or even civil unions) hurts the children as well as their parents.


If society encouraged love and commitment between gay people, rather than actively discouraging it,
I don't believe there would be nearly as much
promiscuity among gays. People are people, and
humans need to pair. The gay marriage movement
shows that many gays and lesbians are refusing to be boxed into
the kind of loveless, promiscuous and dangerous
lifestyle that their enemies accuse them of having.


Actually, I think it is quite dangerous
to quote those lifespan figures ignorantly:
I can easily imagine some young
gay person, already struggling with
being treated like a freak who must not be
allowed to breed, getting depressed
about the suposed inevitability of infection
and acting irresponsibly. (Of course,
"http://www.washdiplomat.com/02-08/c1_02_08.html"
>complacency
would achieve the same result too.)
If you got your information from a website,
I suggest you email them to demand they
stop spreading these dangerous lies.


And when you
read figures such as the
"http://equal-rights.lesbigay.com/essay12.htm"
>high suicide rates
of gay and lesbian teenagers, consider to what extent this is
a result of society and biology giving them the
desire for family yet denying them the opportunity.
(P.S. If you don't agree with homosexual activity
on religious grounds, fight your fight by
evangelism, not by legislation, which will not
save anyone.)


andyo
2004-03-23 14:54:59
Response by Richard M. Stallman
Richard M. Stallman wrote me to correct two flaws in this article,
which he said "I mostly like." The main problem is where I point out
that "copyright is the legal and traditional basis of all free
software licenses, including the GPL." I use this to justify an
associated statement that "Companies certainly have a right to keep
source code secret." But RMS points out that readers might assume
that he (the creator of the GPL) agrees with my statement. In fact, he
emphatically disagrees that companies have a right to keep source code
secret. He writes me that "copyright" and "keeping source code secret"
actually are two completely different things.


I should have made it clear that, while I took the liberty of pointing
to the existence of the GPL, I was making a defense of "keeping source
code secret" that the creator of the GPL disagrees with.


The other problem is where I mention a "bill protecting databases."
This was sloppy, because the very article I wrote (and cite right next
to this phrase) establishes that databases are protected plenty
already, and that the bill is really about monopoly and not
protection. RMS has documented the loaded meaning of the word
"protection" at http://www.gnu.org/philosophy/words-to-avoid.html.