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On FOSS, IP Laws, and Expanding Legal Choices
Sunday, September 26 2004 @ 06:00 AM EDT

I think you might like to read this, on a lazy Sunday. It's an anthropological look at free and open source software (FOSS). No kidding. So, get out your dictionary, because you might need it. At least, I did. It was originally published in the Anthropological Quarterly, and reprinted with permission by LinuxInsider.

The author, Gabriella Coleman, notes that FOSS has no politics. That is, it's not left, right, liberal, anarchist, communist, conservative, nothing. It's about freedom, as in free speech, software code being a form of speech, and it's about optimal science. Nevertheless, she writes, it is literally changing the legal world, by presenting an innovative, viable legal choice outside of the previous IP framework.

This is very perceptive of the author. You routinely see folks try to categorize FOSS as being of a certain political stripe. SCO's Open Letter to the community, for just one example, posited as true that the community is anti-property rights. That is completely false as a generalization. You saw the same thought in their letter to Congress and in public statements, implying that the FOSS community doesn't respect the law, are anti-capitalistic, and are illegal downloaders of music and software -- criminals, in short. That would be laughable if it were not so insulting.

Intellectuals sometimes write nonsense too, and it's not hard to find pontifications about Marxism and FOSS. Here's one recent high-falutin' example, Dan Hunter's paper, "Culture War" [PDF], where he tries to analogize the "culture war" to "elements of a Marxist class struggle," but of course fails, for reasons I will discuss later in this article, but briefly because he starts with a faulty premise. That usually results in a faulty conclusion, and it does here as well.

But the author of "Political Agnosticism Open Source, Politics of Contrast" gets it that FOSS has no politics and is about freedom, the freedom to communicate and the freedom to create state of the art software, through the advantage openness provides:

"Political intent and subjectivity are indeed noticeably absent in the constitution of the free software and open source movement, which differs from more formal political endeavors and new social movements predicated on some political intentionality, direction, or reflexivity or a desire to transform wider social conditions."

Whereas the danger to free speech used to be from the government, nowadays, the article points out, it's corporations that pose the threat, through their recent aggressive push for and subsequent interpretation of expanding intellectual property laws benefiting only themselves.

I might add parenthetically that these laws in no way reflect the world's shift away from corporate creativity to individual creative work, by which I mean such things as Groklaw, for just one such example of such creativity. There isn't a corporation in the world that, had I approached them with this idea, would have agreed to support it. That isn't because there is no way to do this for money. I could have set it up that way, or more accurately, I could now that I've done it. I choose not to, so as to maintain complete editorial independence. But even if the innovative idea of Groklaw had appealed to some corporation somewhere, for sure they would never have allowed me to be the one to implement the idea, because I was absolutely nobody, starting from zero. And they surely would never have let it be published under the Creative Commons license I chose. Current IP laws don't in any way reflect my needs as a creator, which is exactly why Creative Commons licenses were invented. But on a broader scale, current IP laws don't protect the individual creators of free and open source software. And that really matters.

Corporate views on IP law might be described, I think, as similar to a 2-year-old's concept of who gets to play with all the toys in the playground, regardless of who brought them. This results in a conflict between free speech rights of the majority and laws that restrict it in the name of the corporate property rights of a few:

"The indiscriminate application of patents to software algorithms and other encryption and copyright laws, such as the Digital Millennium Copyright Act (DMCA), are construed as threats to the free ability of programmers to write source code, which hackers and programmers have only recently come to conceptualize as a form of communication worthy of the broadest protections afforded by First Amendment law."

As a result of recent changes to IP laws to broaden their reach and give them increasingly broad enforcement capabilities, there is the culture war Mr. Hunter wrote his paper about, because not everyone views these changes in IP law as a force for good:

"It wasn't long ago that intellectual property law was seen as a wholly positive force in society. In those simpler times, intellectual property was thought to guarantee social progress, promote innovation, and (no doubt one day) cure baldness. But within the blink of an eye the golden period faded, and intellectual property became a mares' nest.

"In copyright, scholars and civil society groups lead a series of attacks on copyright term extensions, and on the diminution of the public domain. Within patent we witnessed increasing concerns about the extension of patent scope, and the grant of wildly overbroad patents: recently a number of civil society groups announced plans to challenge the grant of those patents which these see as the worst offenders.

"Internationally, criticism was leveled at the role of Western intellectual property policy on developing nations, in areas like plant and seed protection, drug pricing in Africa, and the development of indigenous high-technology industries. And in related areas like telecommunication spectrum allocation, and internet regulation there emerged movements seeking to protect commons property from private encroachment.

"At the same time, intellectual property owners decried rampant piracy, and daily foretold the death of their industries. Where once intellectual property was seen as good for all, we now survey a battlefield that pits private interests against the public good."

The last bit of that quotation highlights what is flawed in Mr. Hunter's theory, in my view, namely that he views FOSS as copyright "have-nots" fighting against copyright owners, and he tries to put it into an anti-property perspective. What he fails to notice is that the GPL and other such licenses are chosen for use by copyright *owners*. It's not copyright "haves" versus copyright "have nots". It's copyright "haves" with a different view of what is appropriate to do with their copyrighted property. That makes it impossible to view in a Marxist context. Some copyright owners, particularly in the software field, see the value of sharing ideas and others don't have enough confidence in their ability to keep coming up with any that they wish to erect a fence around their stagnant creations with a Keep Out sign.

All right. That is one choice, and there may be a place for it. What you might choose to do about your software might not be the same thing you'd choose for a novel you write. Or it might. But there is a valid argument to be made either way. But when one choice wishes to destroy the other, then we have a problem. And there is now a choice, thanks to the GPL, which began the discussion. And this choice says, if we all share our knowledge, we can all benefit from the common pool of knowledge, and that way none of us has to keep recreating the wheel and we'll all benefit from the rapid innovation and progress. Doctors do that. Scientists do that. Software seems to be ideally suited to this latter choice. IP extremists would no doubt patent the wheel if they could, of course, but this isn't about extremist choices on either end. And by the way, those wishing to limit copyright's reach include even judges. Here is Judge Richard Posner's view on fair use, copyright abuse, and a solution he proposes, "to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright". You might like to read his ruling in the WIREdata case, where he discusses copyright misuse. It begins like this:

"POSNER, Circuit Judge. This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program—a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed."

Yes, there are judges who understand the real issue, which is, should we allow corporations to strip mine the public's commons for private benefit? Is anything more important than corporations making money? That's really the bottom-line question. Some judges don't get that yet, but they still see that the DMCA is being used for things it shouldn't be, as you can see in the recent Skylink/Chamberlain decision.

Strip miners argue they should be allowed to ruin a mountain, grab what they perceive as valuable in it and leave behind its useless, denuded corpse and in the process destroy what everyone else perceives as valuable -- its beauty, the ecosystem it supports, the trees, birds, honeybees, flowers, grass for lovers' picnics, all the things that make life worth living outside of a commercial context. They wish to destroy that which both literature and the scriptures call "the eternal mountains", and everything on them, for the sake of making a quick buck. Others, most of society, in fact, see that as a price too high for the majority to permit.

It is the same with IP law, which, thanks to recent changes, is being used more and more to strip mine the culture, erecting fences, and disenfranchising the majority of the world from being able to participate and enjoy it, not as consumers only, but, worse, as creators. Patents block creation, which is why the EFF is currently submitting a friend of the court brief in the Phillips v. AWH Corporation case:

"'Aggressive patent holders are using vague patent language to cause havoc in the software and Internet fields,' said EFF legal eagle Jason Schultz. 'We're asking the court to rein in these claims by limiting their scope to only those things clearly laid out in the patent itself.'. . .

"The EFF says that at the moment, US courts are interpreting vague terms in patents as broadly as possible, and will uphold a patent unless it is deemed too ambiguous. This means 'improper patents of uncertain scope' are protected, giving plenty of work to legal departments, but stifling innovation and competition, it says.

"Joshua Sarnoff, counsel of record on the brief, and assistant director at the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, said that this could be the most important patent case ever decided. He commented: 'Claim meaning is the name of the game in patent law, and the Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society.'"

As you can see, the EFF isn't in this case asking for a ban on all software patents. Copyright merely limits and restricts a work for a time, but nowadays that time is longer than a generation can live, so it's effectively the same as taking the culture, putting it inside a fort, with a moat around it and a drawbridge that might or might not open to you, even if you are willing to pay. For example, when Internet Archive's Brewster Kahle approached publishers, requesting that he be allowed to digitize books that are out of print and thus making no money for the print publishers, they refused permission. Wired reports what happened next:

"Brewster Kahle, founder of the Internet Archive and Rick Prelinger, a film collector, want permission to digitize these so-called orphan works to create online libraries for free public access.

"In a suit filed in March, the plaintiffs in Kahle v. Ashcroft argue that multiple changes to copyright law have essentially made it impossible for works to return to the public domain. They want to have these changes declared unconstitutional. . . .

"'We want some system in place to filter out works that have no reason for continuing copyright protection from works that do,' said Lawrence Lessig, a professor at Stanford Law School who also represents Kahle and Prelinger.

"The government recently filed a motion to dismiss the case. The plaintiffs filed an opposition to that motion, and the government will file its reply in October. Judge Maxine Chesney of the U.S. District Court, Northern District of California will hear arguments on the case on Oct. 29. . . .

"'Because of the indiscriminate nature of copyright today, the burden of copyright regulation extends to work whether or not the original author has any need for continuing protection,' the lawsuit reads. 'That unnecessary burden blocks the cultivation of our culture and the spread of knowledge.' . . .

"'I think they've come up with a creative approach to try and re-litigate these issues,' said Allan Adler, vice president for legal and government affairs for the Association of American Publishers."

Again, the lawsuit isn't asking for the end of copyright law, just a balance to make it suitable to reality in a digital age and to take into consideration the original purpose of copyright law, to benefit the public. Specifically, it is asking for a return to a system whereby copyright owners would have to register their copyrights. In fact, the lawsuit is asserting that recent changes to copyright law have made it unconstitutional. Here's a bit from Stanford University's Cyberlaw Clinic's FAQ on the case:

"Kahle v. Ashcroft FAQ

1. What’s this case about?

It is about freeing our culture from unnecessary and harmful regulation. It is about a series of recent changes to copyright law that have failed to benefit copyright owners, but have instead created serious burdens on those who create culture in the digital environment.

"Plaintiffs in this case — the Internet Archive and its Chairman, Brewster Kahle, and the Prelinger Film Archive (formally, Prelinger Associates, Inc.) and its President, Richard Prelinger — are filing suit seeking a declaratory judgment that the current system of unconditional copyright is unconstitutional. . . . Plaintiffs contend, among other things, that unconditional copyright creates unreasonable burdens on speech in violation of the First Amendment, and creates effectively perpetual copyright terms in violation of the Progress Clause (the provision in the Constitution that grants Congress power to legislate with respect to copyrights and patents)."

The case isn't talking about Mickey Mouse; it is talking about works that are neither viable commercially nor in the public domain, what they call "orphan works":

"These are works that are not commercially viable and therefore not widely available to the public, but are nevertheless subject to continuing copyright protection. The Internet Archive wants to include many of these books, which we refer to as 'orphan works,' in the Million Book Project, but current law makes that very difficult.

"9. How does current law create 'orphan works?'

"Works that have no continuing copyright value don’t attract the interest of commercial publishers. They nonetheless remain subject to copyright-related burdens (i.e., the necessity of clearing rights) that prevent organizations like the Internet Archive from archiving them, preserving them, or making them widely accessible for study and creative re-use. Under our traditional regime of conditional copyright, these works would have been filtered out of the copyright system — many of these works would never have been registered, or, if registered, never renewed. But under today’s unconditional system, there is no filtering mechanism to separate these works from commercially viable works that legitimately are the focus of copyright.

"So if the Internet Archive wants to include an orphan work in the Million Book Project, it must obtain permission from the work’s owner. But figuring out who the owner is, and how to contact him, is difficult and expensive (especially in the absence of a reliable registry). Thus far, the difficulty of identifying rights-holders and clearing copyright under current copyright laws has largely limited the Million Book Project to government documents, old texts, and books from India and China, where copyright laws are less burdensome."

Publishers may ask, why should I give away something that might in the future be worth something? It's a valid question. But how about this for an answer? Why couldn't the tax laws be written so that any publisher gets a tax benefit for any such donation? If you donate a patent to a university, for example, you get a tax write-off. This paper, "Mining Intellectual Property for Profit" [PDF], says that both Dow Chemical and DuPont saved $50 million in taxes and maintenance fees and $64 million respectively by such patent donations. It's just a matter of the government deciding that there is a benefit to the public from supporting copyright donations to the public domain.

The DMCA as currently set up is also an issue, blocking as it does with its broad stroke legitimate research and study. By setting such broad restrictions and supporting aggressive applications of the law, the feeling by many is that narrow corporate interests are systematically strip-mining the public commons for the sake of a short-term buck. Actually, it's not even short-term any more, now that I think about it. Some perceive that as a price too high to pay. Others, like Microsoft, would probably like to have a monopoly on strip mining, with DRM as the primary enabling vehicle, as best as I can make out.

It is the political agnosticism of FOSS, Ms. Coleman notes, which "has facilitated an unfettered circulation of its technologies" with the result that, thanks to the licenses that govern the software, which have now spread in spirit to other fields of endeavor, there is now an alternative to the traditional view of what is legally proper or right. As an anthropoligist, that naturally interests her as a cultural phenomenon.

What is so clever about the GPL and other Open Source licenses is this: we don't have to overthrow copyright law to be able to establish an alternative. For example, my work is copyrighted as soon as I write it down, but then it is released, by my affirmative choice, under the Creative Commons license 2.0, attribution/noncommercial. By doing that, I expand your rights by voluntarily diminishing mine. I do that because I want the articles to be spread far and wide and quoted from, built upon and expressed by anyone, while still restricting rip-off artists from publishing a "Collected Works of PJ" and keeping all the money themselves, despite me doing all the work, and it is work, even if it's done noncommercially.

Mr. Hunter has the following description of his license, also one of the Creative Commons licenses:

"This document is released under the Creative Commons Attribution License, This means you may do anything you like with this document -- wallpaper your house with it, perform it as a musical, create an audiobook from it, rewrite it using only 21 letters of the alphabet, translate it into Zulu, etc etc -- as long as you appropriately attribute it to its author."

It's a cute description, but the "rewrite with only 21 letters" phrase highlights that creativity is yours to express freely. Be as creative as you like. Does a culture not benefit from such creative freedom? Not just culture, but Disney surely benefited from being able to make movies out of classic tales, like Cinderella.

And it's worth mentioning that Mr. Hunter's license is what makes it possible for me to offer the "Culture War" paper to you. Without that license, I could only use fair use snips, and who knows what that means? You are always on uncharted seas there. So, without his permission releasing the stranglehold that copyright puts on it, I'd have to write to him and ask permission and cross his palm with silver if he demanded it. I would do that, naturally, if I had to, but in practical terms, in most cases I just wouldn't use it instead.

Why? Because sometimes it takes too long. For example, I wanted to show you a hilarious picture the RAND Corporation made in 1954, showing their vision then of what a home computer would look like in 2004. It'd be perfect for a good laugh on a quiet Sunday, but although I wrote to the rights coordinator last week, I haven't heard back, and that isn't unusual. When there is a hassle like that, what ends up happening, due to deadlines, is that the work doesn't get used at all. Now I ask you, is that good for the culture?

Judges don't consider practicalities like that in their decisions sometimes. A recent decision about music sampling, for example, showed that the judge has never tried to get permissions, because he thinks it's a lark. It's not, and some are predicting the result of this decision will be either the death of one form of music, hiphop, or its descent into mediocrity by stifling the artistry and creativity IP law is supposed to protect by making it too expensive for individual creators to practice their art. I'll be providing you with more information on this case later, but it's another example of IP law not protecting the rights of individual, as opposed to corporate, creators. The music industry did not invent hiphop. Sometimes, you don't even know where to find a copyright holder, which is one of the issues being raised in the Kahle lawsuit.

Ms. Coleman calls the GPL a neat legal hack. I agree. But I stress the word "legal", because it leaves the underlying copyright law intact and unchanged.

Patents, of course, take us into deeper waters. There is no hack outside of the GPL's no-patents clause, and even that doesn't solve the real problem. And what is the real problem? That patents shut down creativity, innovation and free speech, and in software, with its rapid development, it's the same as destroying innovation.

As Richard Stallman points out, software patents block your way no matter how hard you try to be "good":

"Software patents are the software project equivalent of land mines: Each design decision carries a risk of stepping on a patent, which can destroy your project.

"Developing a large and complex program means combining many ideas, often hundreds or thousands of them. In a country that allows software patents, chances are that some substantial fraction of the ideas in your program will be patented already by various companies. Perhaps hundreds of patents will cover parts of your program. A study in 2004 found almost 300 U.S. patents that covered various parts of a single important program. It is so much work to do such a study that only one has been done. . . .

"However, fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria. You cannot expect to defeat every patent that comes at you, any more than you can expect to kill every monster in a video game: sooner or later, one is going to defeat you and damage your program. The U.S. patent office issues around 100,000 software patents each year; our best efforts could never clear these mines as fast as they plant more. Some of these mines are impossible to clear. Every software patent is harmful, and every software patent unjustly restricts how you use your computer, but not every software patent is legally invalid according to the patent system's criteria."

If you'd like to hear that thought from someone else, more business-oriented, here [PDF] you go, the PriceWaterhouseCoopers study saying software patents are a threat to the European information and communication technology industry:

"Scientific research in the USA demonstrates that computers are often the catalyst for bigger changes. Information and communication technology (ICT) is not only the technological basis for a fast growing industry sector but also an indispensable enabler and driver for an inclusive, dynamic and knowledge based economy and a modern social society.productivity growth. . . .

"342 There are particular threats to the European ICT industry such as the current discussion on the patent on software. The mild regime of IP protection in the past has led to a very innovative and competitive software industry with low entry barriers. A software patent, which serves to protect inventions of a non-technical nature, could kill the high innovation rate. However, opinions on software patent in its current proposed form vary a lot. Many large companies operating on a global scale, including European ones, seem to be in favour of a software patenting regime. But most small enterprises are strongly opposed. Only very few European companies have prepared themselves for the consequences of a software patent regime."

And to wake you up this morning and illustrate the broad spectrum of those seeing that the IP landgrab is going too far, take a look at this. America's oldest conservative group, The American Conservative Union (ACU) is taking out ads opposing the INDUCE Act, claiming it will "crush innovation". You can view the ads by clicking on the link on that page, which takes you to this PDF, where you will find this text:

"Hollywood is once again trying to crush innovation to maintain its entertainment distribution monopoly. And this time they’ve enlisted Republican lawmakers to help them do it. Their latest production, called S. 2560 (the “Induce Act”), could outlaw a wide range of hardware and software, including peer-to-peer. S. 2560 not only attacks consumers’ right to use technologies, it attempts to make the intellectual property rights of Hollywood fat cats more important than the personal property rights of Americans.

"S. 2560 will be a boon for Hollywood’s trial lawyer friends. It creates a new category of lawsuits designed to harass companies developing technologies and equipment that Hollywood deems unsuitable. Technologies that keep America competitive and deliver more diversity, efficiency and choice to consumers in a way unequaled by Hollywood’s entertainment distribution monopoly. Compromising property rights and encouraging predatory, costly litigation is not a conservative position."

I am mentioning all this with a caveat. Groklaw is neutral as to politics, and this isn't an invitation to discuss which political group is right or wrong. That's all off topic on Groklaw. This material is illustrative of a higher level of abstraction, not an invitation to political debate.

Benjamin Franklin was an inventor. But he refused to patent his inventions, and here's why:

"As we enjoy great advantages from inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously."
-- Benjamin Franklin"

Was Benjamin Franklin unAmerican? A hippie dreamer? A communist? You may say that was then and this is now, that it's a new world. Yes. But is it better? Because of his stand on patents, the Bioinformatics Organization names its annual humanitarian award The Benjamin Franklin Award in Bioinformatics. Here is what this organization does:

"The Bioinformatics Organization, Inc. (Bioinformatics.Org) was founded to facilitate world-wide communications and collaborations between practicing and neophyte bioinformatic scientists and technicians. The Organization provides these individuals, as well as the public at large, free and open access to methods and materials for and from scientific research, software development, and education. We advocate and promote freedom and openness in the field as well as provide a forum for activities which facilitate the development of such resources."

You see, freely and openly sharing ideas is the embodiment of what this organization calls "the best traits of a scientist". When IP laws make it impossible for science to progress, just so the entertainment moguls and one small segment of the proprietary software industry can make money, has it not gone too far? Stop and think: Linux was not started by a corporation. It was developed by individuals, and now it is literally changing the world. That, of course, is why Microsoft wishes it could kill it off. But is that in the best interests of the world? Without a doubt, that is the issue. Should not the IP laws protect and enable such individual creativity?

This isn't a discussion about downloading music illegally, as much as SCO wanted to describe it in those pejorative terms. It's about progress, about innovation. If any country decides to limit its own progress in science -- and software is science -- just so the few SCO's and Microsofts of this world can make a little more money before they die off, then it had best hobble the entire globe, or it will inevitably be left behind in the dust, out-innovated into insignificance.

And if they think that won't affect the gross national product, not to mention safety and security, they aren't thinking deeply enough.


On FOSS, IP Laws, and Expanding Legal Choices | 322 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-Topic Threads Here Please
Authored by: chrisbrown on Sunday, September 26 2004 @ 06:08 AM EDT

[ Reply to This | # ]

On FOSS, IP Laws, and Expanding Legal Choices
Authored by: Ninthwave on Sunday, September 26 2004 @ 06:10 AM EDT
Excellent piece PJ.

[ Reply to This | # ]

Corrections Here
Authored by: daavery on Sunday, September 26 2004 @ 06:18 AM EDT
Post yea old corrections here!

[ Reply to This | # ]

On FOSS, IP Laws, and Expanding Legal Choices
Authored by: minkwe on Sunday, September 26 2004 @ 06:49 AM EDT
This, I think is my best phrase in this article. It's my new sig

"Corporate views on IP law might be described as similar to a 2-year-old's
concept of who gets to play with all the toys regardless of who brought them" --

[ Reply to This | # ]

RMS must have had pretty long distance vision
Authored by: cheros on Sunday, September 26 2004 @ 06:52 AM EDT
The more you analyse the beneficial effects the whole concepts of GPL and Free
Software are having, the more you realise it's about the only way to go. I'm
astonished by the reach of the vision Richard Stallman and Eben Moglen had when
they put this together as there are few things that hold out being 'right' for
so long.

This calls for an award, not just acknowledgement.

= Ch =

[ Reply to This | # ]

On FOSS, IP Laws, and Expanding Legal Choices
Authored by: Rudisaurus on Sunday, September 26 2004 @ 06:53 AM EDT
Now this is what really makes Groklaw so interesting! Not just the day-to-day
minutiae of the on-going cases but the philosophical perspective -- the
"big picture" -- view of it all. Thanks!

[ Reply to This | # ]

Freedom _is_ political!
Authored by: Anonymous on Sunday, September 26 2004 @ 07:27 AM EDT
I don't think your premise that freedom is non-political can stand up. Sure,
it's not party-political, in the sense that no party is going to say it's a bad
thing (noone attacks freedom head-on: they ambush it from some other angle when
it's inconvenient to them).

But saying that it's not party-political, or that it is neutral in terms of the
political movements of past generations, is not the same as being non-political
today. This is an important political issue, as witness the current debate in
Europe between those who want to adopt America's mistakes and those who are

Your point about strip-mining a mountain seems highly relevant. That kind of
property exploitation is not merely political, but party political. But I risk
going badly off-topic if I pursue this argument.

[ Reply to This | # ]

Excellent Article
Authored by: IrisScan on Sunday, September 26 2004 @ 08:04 AM EDT
What a brilliant article ! I've just sent an email to The Federation of Small
Businesses , who represent SME's in the UK . I've been a member for a long time
and was poleaxed to discover that there is no policy document listed at the FSB
site dealing with European Software Patents . This article , with the references
and URLs it contains is absolutely perfect to highlight the matter .

Many thanks , PJ !

[ Reply to This | # ]

Lazy Sunday?
Authored by: Anonymous on Sunday, September 26 2004 @ 09:01 AM EDT

Well, the eye of the hurricane is due here in about 3 hours. Still have power
and phones, though. We'll see.

[ Reply to This | # ]

How do we organize in sufficient number to change IP Law?
Authored by: Anonymous on Sunday, September 26 2004 @ 09:03 AM EDT

The problem that I am grappling with is that this issue, while important to all
of society, is not widely appreciated by the vast majority of voters.

The vast majority of voters are not programmers, writers, or scientist. The
lack of intellectual freedom to take and produce works does not _directly_
affect their daily lives.

At most, the natural political constituancy of programmers, writers, and
scientist is, lets say, 12% of the population of developed countries, less in
developing nations.

The remaining 88% of the population is likely too easily swayed with whatever
propaganda comes out of the intellectual property monopolist. This,
unfortunately, includes the elected representatives. Worse, the IP monopolist
have cash to buy effective lobbying. Our group of IP freedom fighters has no
such effective anti-IP lobbying.

So how do we organize?

We need to form political action groups that provide both funds and
demonstrators to massed rallies that can be picked up by the conventional news
media. The political action groups need to lobby and provide the law makers
with strong argument, and perhaps some fear of organized political opposition to
their campaigns if they should continue to support the IP monopolist.

In short, we need something like a million programmer March, or other similar
demonstration that focusses a country on the IP issues.

So, how can we organize sufficient numbers to have such political rallies be
seen as more than a fringe element of [insert negative word] programmers.

I don't have great ideas, but perhaps local grass roots software freedom clubs,
perhaps starting at the local LUG meetings, is a start. From there, from within
the groups, push up to meetings with local political officials to push software
freedom up the ladder. Eventually these need to move to regional or national
politicians, (in the U.S., those associated with the major parties), to try and
push this up the political food chain.

We have to jumpstart this political movement and get it to the point where it is
a force in politics if we expect any relief from the current status quo.

[ Reply to This | # ]

Common property is biblical, not Marxist
Authored by: Anonymous on Sunday, September 26 2004 @ 09:30 AM EDT
The usual nonsense about property in common being Marxist.
Actually, it's biblical.

Acts 4:32-35

32 -- And the multitude of them that believed were of one heart and
of one soul; neither said any of them that ought of the things which
he possessed was his own; but they had all things in common.

33 -- And with great power gave the apostles witness of the
resurrection of the Lord Jesus; and great grace was upon them all.

34 -- Neither was there any among them that lacked; for as many
as were possessors of lands or houses sold them, and brought
the prices of the things that were sold.

35 -- And laid them down at the apostles' feet; and distribution
was made unto every man according as he had need.

I guess this makes Luke, the author of Acts, the first Marxist.

Then read of the fate of Ananias and his wife, Sapphira, who
withheld some of their property from the apostles, Acts 5:1-11.

And we all thought Darl was devout.

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Patens, Copyrights and Bureaucracy
Authored by: Mark Grosskopf on Sunday, September 26 2004 @ 10:39 AM EDT
When I was in graduate school researching commitment and compliance for a paper,
I found an author, named Amatai Etzioni. He had some very striking things to
say... I also found that among professors in organizational development, Etzioni
is highly, highly respected. What he specialized in was social commitment and
compliance in organizations. He also wrote about bureaucracy, as an
organization form and it's effect on commitment/compliance. Remember that
bureaucratic org forms are quite efficient in many deployments, since they
promote stability, but can be frustrating when it prevents one from
accomplishing a task that cuts across departments...rules, you know. OK,
attribution complete.

What I wanted to bring here was a paraphrased quote from a little tome he wrote
in 1960 or so. It went something like this: "Bureaucracy is created to
enforce rules and policies in an organization that produces something, and when
that bureaucracy becomes the stronger and higher form of organization, it
becomes one whose sole purpose is to enforce rules and policies. It is at that
point that the organization collapses in on itself, unable to adapt to a
changing business climate."

Anyway, I would liken the current land rush of patents and copyright duration
extensions to the creation of a virtual bureaucracy, one which stabilizes the IP
domain around the existing owners and creates a barrier to entry, enforced by a
bureaucracy at the federal level.

Essentially, firms have transferred part of their org cost (protection) to the
federal government, which appears to be a willing participant, since the USPTO
*IS* part of some federal organization.

Another unusual aspect of this bureaucracy is that the legal profession, which
works within existing laws to protect an entity's rights (individual or
organizational) becomes a part of this virtual bureaucracy. Think about it,
they help stabilize the virtual org by enforcing the rules.

Railing against the Virtual Bureaucracy is hard because there are SO MANY rules
and policies (read patents, laws, DMCA, etc.), that one doesn't quite know where
to start.

I don't know how to fix it, probably no one does. But I think it *WILL* follow
Etzioni's teleology, the bureaucracy will collapse. I think it will be an
outside influence (no alien intervention here...really) in the form of
repudiation of the US way of doing business that causes the breakdown. We are
seeing the seeds of the agent of collapse in OSS, but it won't cause action
until there are successive breakdowns and collapses in the US economy. Once a
bureaucracy is engaged and functioning, it is VERY difficult to turn, like a
huge tanker ship...or the Titanic.


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Authored by: Latesigner on Sunday, September 26 2004 @ 12:06 PM EDT
Thanks PJ, this was great.
It's exactly what's been worrying me for quite awhile now.

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On FOSS, IP Laws, and Expanding Legal Choices
Authored by: fredex on Sunday, September 26 2004 @ 12:40 PM EDT
It's refreshing to see an article that pretty much gets it right.

One minor nit, given that the author seems pretty much to "get it", is that source code IS NOT blueprints for a program. This is something that articles for the general public often get wrong. While it may be hard to give a better layman's definition, the distinction is nevertheless important.

Blueprints are detailed drawings that show, from a certain perspective, what an object (building, etc.) might look like. But they are not the building itself. They cannot be processed in an automated way to BECOME the building. They, at most, only represent certain views of the building in a rather stilted way.

Source code, OTOH, IS the program.

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There is one political party whose sole tenet is freedom
Authored by: skidrash on Sunday, September 26 2004 @ 12:54 PM EDT
it's the libertarians.

(actually the original "liberal" in late 1800s Austria later became
today's libertarians as the word liberal took on other meanings.

PS I'm not libertarian.

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My opinions.
Authored by: hanzie on Sunday, September 26 2004 @ 12:59 PM EDT
One thing I haven't seen stated clearly yet:

Large companies profit by stagnation of progress. Progress is the very last
thing Microsoft or the entertainment industry want.

Bear in mind: George Lucas filmed and edited StarWars with equipment less
capable than is now available at WalMart's video section. The special effects
are quite doable with a single PC today, with free software.

That can't help the MPAA sleep well at night.

Once a monopoly (or oligopoly) is in place, their best profit is from
maintaining the status quo. Any changes arising are dangerous, because it might
not be them on top.

Meanwhile, I agree with the previous poster. There really isn't any way to
change the system from within, because changes take money. MS can outspend
anybody and proved that they're immune to even the US Department of Justice.
They openly lied in court, fabricated evidence and didn't even recieve a wrist
slap. When things got a bit more inconvienent, they simply bought the
president's indulgence for a few million in campaign contributions. Doubtless,
both sides received the contributions, insuring that the money machine keeps

It's really quite hard to fault the politicians for supporting MS and others.
In the case of MS, it brings absolutely stunning amounts of cash into the US in
return for selling hologrammatic certificates entitling everybody to use MS Win
& Office. Everybody has to use MS office simply because everybody else is

MS has actually come up with a form of colonialism that is amazingly effecient.
To Mexico, for every hologram MS sends for office, Mexico sends the US 5-10
barrels of oil. The really sweet part for the US is that, due to the beauty of
international monetary trade, each country sends whatever resources are most
prized at that moment by the US, simply in return for "permission to
use" their computing equipment. Planned obsolecence of Windows and Office
ensures that the revenue continues. Physical impossibility of transferring your
legally purchased OS to your replacement system insures another acceleration of
revenue (Just try to purchase a new Dell with the intention of re-using your XP
license from your old dead PC).

The only reigons that have a hope of escaping this vicious cycle are those that
jump on FOSS or ignore MS copyrights. MS has taken the second option by the
throat by pushing hard to get international treaties on copyright and IP
accepted everywhere.

Amazingly enough even the European Union's America hating representatives have
decided to sign up for eternal MS taxation. I believe the delegates acceptance
of the MS IP yoke lies in personal greed and/or fear. If I knew somebody with
$46 billion in cash, I'd prefer them to be a friend rather than an enemy.
Meanwhile, they've sold Europe's future to the US.

The US has now made colonies out of Europe, and Britian knighted BG for doing

Even funnier is that China has seen this for what it is, is paying lip service
only, and colonizing the US through WalMart. I strongly suspect that China, the
inventor of bureaucracy is going to be the eventual winner. I really don't
sleep well at night, thinking about that.

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The biology of SCO
Authored by: Anonymous on Sunday, September 26 2004 @ 01:13 PM EDT
I'm glad to see anthropology make its way onto this board.

Most of the discussion on this board(at least since I've been lurking) has dealt
with the reasons for SCO's actions on a microlevel (law/logic based reasoning)
and sometimes from a historical perspective. I think another set of reasons for
their actions exist on a macro level which can be best seen by considering both
SCO and Darl to be biological systems*. Looking at them through concepts like
Darwinian capitalism, survival of the fittest (definition of survival of the
fittest, if you survive you are the fittest), and the hierarchical dominance
structure that a lot of the members of each primate species seem to follow( not
all species are hierarchical dominant, for instance dolphins aren't ) there are
some interesting insights to be had.

I could say a lot more but my expertise is in computer science and I do not
want try "passing myself off" as an expert in anthropology or
sociobiology (I have neither ability to write persuavely nor the breath of
experience in these fields to do so) instead I mean this post to be a prod to
PJ (or someone else) get an anthropologist or sociobiologist to add their

*contrary to the opinion that many have that we have evolved beyond the rest of
the animal kingdom, I've found that if I consider us having actually no
difference from any other animal excepting the addition of a better logic
processing unit(or perhaps it's having Chomskys language organ?) I find much of
our seemingly irrational behavior to make a lot of sense).

p.s. did ANYONE see Lessig/Boies at the 92st Y last monday?

[ Reply to This | # ]

Authored by: Simon G Best on Sunday, September 26 2004 @ 02:08 PM EDT

My opposition to software patents is political. My preference for FLOSS is also a bit political.

So, um, bye!

Open and Honest - Open Source

[ Reply to This | # ]

On FOSS, IP Laws, and Expanding Legal Choices
Authored by: inode_buddha on Sunday, September 26 2004 @ 02:12 PM EDT
Funny thing, I've long felt that practicing FOSS is the truest kind of
intellectual capital -

"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

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IP controversies in the (classical) ancient music world
Authored by: martinh on Sunday, September 26 2004 @ 03:06 PM EDT
I realise that few if any Groklawyers are classical music lovers, but bear with me:

There is an interesting case just decided in the UK where the person who edited music by Michel-Richard de Lalande (1657-1726) into a performing edition claimed copyright in his version of pieces written around 1700. He won his case against Hyperion, a recording company, engendering fears that new recordings of such music will become rarer.

Hyperion had claimed that copyright only applied to the actual act of creation and no royalties should be due to the person who provides an edition of music which is out of copyright (AIUI, copyright in UK extends for 70 years after the creator's death). In this case he is paid a one-time editing fee, which was done in this case.

The judge ruled that it was not adequate for the CD booklet to contain the phrase: "With thanks to Dr Lionel Sawkins for his preparation of performance materials for this recording", it should have stated: "© Copyright 2002 by Lionel Sawkins". In other words, Dr Sawkins has acquired copyright in a performing edition of 17th century music by his editing efforts.

BBC Music Magazine put it this way: "What Dr Sawkins was effectively claiming was ownership of the music itself, despite the fact that only in one piece - where a viola part had to be added - could he be deemed to have undertaken an act of creation. The danger now is that anyone who makes a new edition of a score will be able to claim copyright and up to 8.5% royalties on any sale of a work that would otherwise be very much out of copyright."

BBC Music again: "Hyperion intends to appeal against the verdict. With costs already estimated at [GBP]400,000, and the likely copyright payable to Sawkins running into the low thousands, it seems that, as is so often the case, the only real winners are the lawyers".

A link to the decision can be found here: link

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Nothing new: message from the start of the industrial revolution
Authored by: MaartenSneep on Sunday, September 26 2004 @ 03:35 PM EDT

I think the following is a neat addition to the quote attributed to Benjamin Franklin. I'd say he was right.

A Ph.D. Student -- Alessandro Nuvolari -- in the Netherlands did research on how patents affected the development of the steam engine. It may not be a surprise to you, but his patents hindered the development of the steam engine. The press release is reproduced below, for your enjoyment.

Watt's steam engine frustrated innovations

The patent system is regarded by many, amongst others economic Nobel Prize winner Douglass North, as a critical prerequisite for the British Industrial Revolution. One of the main findings of Alessandro Nuvolari's study however is to show that the patent protection of the Watt's steam engine technology hindered productivity growth.

The modern steam engine was first developed by Newcomen during the early 1700s to help pump water out of mines. In 1765, Watt invented an improvement that substantially increased the fuel efficiency of these engines. Watt patented his and subsequent improvements, and he became one of the most prominent advocates of the patent system.

Watt used his patents to block other inventors from making improvements that in the long run proved far more significant than Watt's own invention, the most significant being the high-pressure steam engine. Not surprisingly, Nuvolari finds that engine productivity growth stagnated while Watt's patents remained in force. He shows that the greatest increases in efficiency occurred after 1800, when Watt's patent expired. These improvements took place over a period when engineers rarely patented their inventions and shared their knowledge widely and freely with others. This openness clearly accelerated the rate of improvement, and was most dominant in the Cornwall region.

Nuvolari even states that this region could be considered as the 'Silicon Valley' of the British Industrial Revolution. The open culture and the absence of strict patent enforcements created a competition to the top, which attracted the best engineers to improve technological developments faster than anywhere else.

(quoted from: nuvolari_uitleg.html)

Draw your own comclusions as to how the lessons from the steam engine could be applied to software patents...


[ Reply to This | # ]

most everytime this Bass guy posts..
Authored by: Anonymous on Sunday, September 26 2004 @ 04:00 PM EDT
I smell something fishy

[ Reply to This | # ]

  • I agree... - Authored by: Anonymous on Sunday, September 26 2004 @ 04:24 PM EDT
OT: Derivitive works in the theater
Authored by: dkpatrick on Sunday, September 26 2004 @ 04:22 PM EDT
Frozen< /a> The author has been accused of plagiarism. Here is an interesting paragraph from the article:

"Lewis's legal team, headed by prominent New York lawyer Martin Garbus, has asked to see early drafts of the play to establish when the striking similarities appeared. According to Garbus, the lawyers representing Lavery have said no such drafts exist.

'This is a sad case,' said Garbus. 'It is clearly a derivative work, and most writers would have at least talked to Malcolm Gladwell or to Dorothy Lewis before going ahead.' "

"Keep your friends close but your enemies closer!" -- Sun Tzu

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I don't read it as you do.
Authored by: John on Sunday, September 26 2004 @ 04:31 PM EDT
"At the same time, intellectual property owners decried rampant piracy, and
daily foretold the death of their industries. Where once intellectual property
was seen as good for all, we now survey a battlefield that pits private
interests against the public good."

You see this as a flaw in Mr. Hunter's theory. I see it as a fact. Microsoft vs
the world, SCO vs Linux. It is a battle pit , with private companies battling
thye public good.

You introduce the notion of "haves" and "have nots", I don't
see this in the quotations you have provided. Where does Hunter imply that the
public good is equivalent to "have nots"? Personally, I think he has
it right, and I despise SCO and Microsoft exactly because they are against the
public good.


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No, the threat is always government
Authored by: Anonymous on Sunday, September 26 2004 @ 05:53 PM EDT
Whereas the danger to free speech used to be from the government, nowadays, the article points out, it's corporations that pose the threat

No, the main threat to freedom is still the government. Corporations can only threaten us indirectly, by buying favors from the government by a constant stream of bribes ("campaign contributions"). The pols are in control all the time; the instant the money flow stops, they can ditch their former sponsors. It's like a sophisticated form of blackmail; Disney can never stop paying for the Sonny Bono law, for example, because if they did, the law would get repealed.

So incumbent pols are assured of big contributions forever.

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If you feel rejected here, start your own Blog
Authored by: Fourmyle on Sunday, September 26 2004 @ 06:02 PM EDT
Every Blog starts as one person's views, and remains under thier control. PJ has
a large following because she posts matters most of us find interesting most of
the time, and she allows far more dissent then most, but this is indeed her
forum. If some of your previous posts have been removed and you feel slighted by
this, then start your own Blog, run it as you see fit and let the deprived
masses gather to share your insites.
Show me any media that doesn't have an editor, producer or someone setting the
ground rules and selecting the content.

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Politics by definition
Authored by: Eric E Johnson on Sunday, September 26 2004 @ 06:32 PM EDT

PJ, you say, "Groklaw is neutral as to politics, and this isn't an invitation to discuss which political group is right or wrong." By the definition I learned in college, though, what is happening with IP law is almost completely politics. That definition:

Politics: the allocation of scarce resources for a society.

In that context, as long as the Constitution of the US allows for the establishment of copyright and patents, there will be politics swirling around this issue. The consequence of this support in the Constitution is a government granted (and enforced) monopoly that generates scarcity that people then fight over.

To the extent that you fight against the attempted monopolies of the SCOs and Microsofts of the world, you are engaging in a political battle to eliminate some of that false scarcity. Among the many things that FOSS does, it demonstrates the true costs of a strict IP regime with lots of enforced artificial scarcity, and the huge potential upsides of a looser regime, with less scarcity.

I appreciate greatly what you're doing here, and I think I understand what you meant. I think you meant that you aren't tying yourself to any particular political party or affiliation. For that you are to be commended in these apparently highly partisan times. I just hope that you are clear that what you're doing is unavoidably political in the eye$ of many, and therefore will almost certainly be subject to futher withering, baseless, and scurrilous attacks by those with a vested interest in more artificial scarcity.

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the COMMUNE (don't be scared by the word!)
Authored by: Anonymous on Sunday, September 26 2004 @ 06:51 PM EDT
I am aghast that all of this discussion about the politics - or rather the
apolitical stances - of the individuals who make up the FOSS community, fails to
note at any point the blatantly obvious fact that FOSS itself operates as a
commune. To call it 'communistic' is of course a dirty word in the West - but
that's only because of the deliberate demonification of all things communist,
which has long been policy in the capitalist system. So lets calle it
'commune-istic'. And it is! The principle is 'from each according to his
ability, to each according to his need'. This is in actual practice what
happens in the FOSS world. To put it simpler, it's called 'sharing'. This is a
very Christian principle.

It has also been said that Christ was the first communist.

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The wrong question
Authored by: MarkusQ on Sunday, September 26 2004 @ 09:18 PM EDT

Publishers may ask, why should I give away something that might in the future be worth something?
They may well ask this, but it's the wrong question.

Remember, it is society that is "giving away something" (the natural right to hum any tune you want, say any random thing that strikes your fancy, etc.) by granting the monopoly in the first place.

In the case of both copyrights and patents, this bargin (like any bargin) ought only be made when it is in the interest of both parties to do so. This is the same logic that aplies to any deal, contract, etc., an exchange of value and a meeting of minds are essential prerequisits.

The real question should be, why should we grant a copyright to something that even the presumptive copyright holder views as (presently) worthless? Why should they seek it? I maintain that they only do so because the cost to them is artificially maintained below the cost to society. It is a sort of cultural arbitrage, that lets people get something that may have value later for little or no cost (to them) today, at the expense of everyone else in society. It isn't wealth creation, it's wealth transfer, just like skimming a fraction of a cent off a large number of financial transactions would be.

-- Markus

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Points mostly ignored
Authored by: Turin on Sunday, September 26 2004 @ 10:37 PM EDT
Both the author of the article and PJ are avoiding the very factor that makes
the question of OSS' political affiliation worth considering: the relationship
of OSS to commercial software. Conservative theorists who have bothered to pay
attention to OSS - very few have to date - have relatively uniformly come out
against it .

Why? Software is a business opportunity, a chance for wealth to transfer. The
transference of wealth is the very definition of capitalist endeavor. This
creates jobs, and opportunity to excel and prosper based upon work and merit.
Conservatives see these opportunities as priceless, as they generate jobs and
improve overall employment - Adam Smith's 'invisible hand' at work. Giving this
away for free is blasphemy to a conservative. Giving away software also kills
an existing industry in the view of a conservative. More on this later.

Software has a somewhat unique position inasmuch as it does not have a true
physical manifestation, and can be relatively freely replaced and interchanged
amongst systems. These very issues when applied to end-user support, coupled
with licensing costs and security, cause both public and private sector IS
professionals to insist upon standardization whenever possible. This inhibits
the free exchange in software.

Microsoft took advantage of this to manufacture its current monopoly in
operating system and office productivity software. As a simple test case, let's
look at how Microsoft conquered Novell. Novell once had a near-monopoly itself
on server file and print operating systems for desktop clients. There are still
Novell shops out there, but very few nowadays.

Novell had a licensing system for Netware that involved a license floppy that
contained a fixed number of user connections - 5/10/25/50/100/200, even 500 and
1000 for specific systems that could handle that many. Your license floppy was
not copyable and could not be used on more than one server that was within
network visibility of another server that used the same network floppy. You
would basically get a bunch of annoying messages about license violations
broadcast to everyone. It was basically not feasible to reuse the license
floppies within one enterprise.

Microsoft attacked them on a number of fronts. They consistently provided
crippled network clients for Netware with their desktop operating systems. They
refused to provide Novell with OS calls which would have permitted a more stable
Novell-provided desktop client. As a result, multiple generations of the Novell
client were buggy and crash-prone. Microsoft of course benefitted from their
complete dominance in desktop operating systems here.

Microsoft provided a free Netware file sharing function in Windows 95 which
basically provided Novell's functionality for free in a desktop OS. They
provided a gatewaying function in Windows NT Server (GSNW) which allowed you to
circumvent Novell's license limitations, using a single user connection to serve
unlimited numbers of users. They provided a cheap ($100) add-on for Windows NT
Server that allowed it to emulate nearly fully a Netware server as a drop-in
replacement. It undercut Novell on price. It permitted easy piracy of Windows
NT 3.51 and 4.0 (426-and a few ones, for instance), thereby putting Novell at a
dire disadvantage in regards OS growth - $500 for a cheap Netware license, or $0
for an unlimited NT server for an immediate need. NT server could also run
client applications.

It is clear that Novell didn't have a chance against this kind of 'competition'.
Microsoft is objectively responsible for dumping, at least, in this case.
Unfortunately I don't believe inducing piracy is treated as such, yet. This is
one place where something like INDUCE would have positive benefits.

It's also educational to see where Novell has managed to hold onto shops. The
shops that are Novell still went NDS - they turned their authentication services
for the enterprise over to Novell's directory. The directory - the very
authentication service - is such a bedrock part of an IT infrastructure that it
cannot be easily removed without replacing and/or reconfiguring every single
infrastructure component. You have to touch everything from the auth server to
the desktop. Hence, those that committed to NDS are pretty much stuck with it.
Please note that Microsoft's Active Directory, mandatory with new domain
installs since Windows 2000 Server, accomplishes the same goal for Microsoft.
Customer lock-in.

It is obvious to many that in the world post-Microsoft dominance, all other
commercial providers of operating system or office solutions are marginalized.
Even if Apple decided to compete against Microsoft in the OS market directly,
they would be destroyed by the same forces that nearly destroyed Novell's
business. The only way to compete with Microsoft is to change the paradigm.

OSS changes the paradigm. Microsoft cannot compete directly against OSS on
price or merit. The Apache web server's success is an object lesson in this.
Even if Microsoft's IIS had been as secure as Apache, Apache would probably
still be the leader due to the free nature of the operating system it primarily
runs upon. As new technologies arise, OSS will continue to maintain this

OSS will result ultimately in the commoditization of office productivity and
operating system software. In this world, there is no reason to use anything
but the free alternative.

Vendors can sell software profitably when free alternatives are available, but
only where the customer lock-in attributed above is in place. Moreover, over
time OSS is sure to erode this lock-in when cost becomes the largest factor in
the estimation of IS providers. I do not see any scenario where OSS fails to
transform software into a commodity over the next 10 to 15 years, save software

Software patents are adequately discussed elsewhere and the battle against them
will be the very battle of our time.

It is easy to see, given the situation, why a conservative interested in job
growth and wealth creation would not like OSS as a concept. Unfortunately for
them, I think I have adequately shown that software is not like other products.
There is no such thing as free trade in software, from my point of view. I have
personally come around from a detestation of Microsoft to the point of view that
software that costs money is detrimental to society as a whole and does not
logistically lend itself to being bought and sold freely. I might be further to
the left than Stallman himself on this.

I would also add that developers will continue to be paid in a world where OSS
reigns. Perhaps fewer than before, and less money. Perhaps more. It is hard
to say: I am surprised more individual developers aren't worried about this, but
software development is not what I do for a living, just incidentally, so it is
none of my concern.

I do fear projects like XFree86 who become a de facto standard and then change
their policies midstream to the detriment of OSS as a whole. While the XFree86
problem was dealt with, will it be so easy to deal with when 90+% of the
desktops are running a particular component? Time will tell.

My comment about being 'to the left of Stallman' brings us back to the point of
this entire tirade, however. OSS is written by people who tend to the left.
Despite what PJ says and what the article author is trying to state, the
software tends to be written by people who have a socialist viewpoint. The
Debian social contract or the DFSG are good enough to demonstrate that. If that
isn't sufficient, perhaps the relationship of OSS developers with Marx's passage
about "from each according to his ability, to each according to his
need" will demonstrate the socialist nature of the development paradigm.
The large number of OSS developers who are college students is also
demonstrative. A trip to Slashdot to hear the thoughts or check out the web
pages of many projects is also helpful in this regard.

Another point to look at is what happens when a true capitalist thinker gets
involved in a Free software project. For example, let's look at someone i'm
more than a small bit familiar with, Marc Fleury and the JBoss project. This
project produces a J2EE server for several platforms. Mr. Fleury sells training
and consulting services, as well as technical support. His organization bills
itself as "The Professional Open Source Company". JBoss is Mr.
Fleury's primary livelihood. He is in this to make money.

Over time, Mr. Fleury has had quite a bit of abrasive contact with various
individuals and groups in the OSS community. His organization has been charged
with 'astroturfing' (i.e. cheerleading their product under the cloak of
anonymity on message boards and mailing lists) so often as to cause JBoss to
have to issue a near-apology and insistence that they would not do this again.

Mr. Fleury has also had issues with mass abandonment of JBoss developers to
competing projects such as Apache Geronimo. While some of these expatriates
left due to personality problems with the admittedly hard to get along with Mr.
Fleury, many of them also objected to the business practices of JBoss in one
form or another.

It is clear that JBoss has been harmed within the community for doing things
that in the commercial world would be considered de rigeur in regards marketing
and the conduct of business. Moreover, this harm has come at the hands of the
very developers who are purported in the parent article as being without a
political persuasion. This hardly seems plausible.

I am a conservative. I understand the viewpoint of those who are conservative
who see OSS as a danger to software development as an industry. I disagree due
to other factors as outlined above, and i'm glad to (if not completely proud to)
line up with the leftists who make up the majority of the OSS community to
support and evangelize its use.

Please do not make the mistake of thinking that because I happen to support OSS
and might even write some someday, that the mainstream of OSS developers is in
the middle of the road. I cannot agree with that, and the evidence is rather
damning that the OSS developer community as a whole tracks left of center.

Thank you for reading.

[ Reply to This | # ]

A Beautiful Piece
Authored by: Nick Bridge on Sunday, September 26 2004 @ 10:40 PM EDT
Thank you, PJ!

[ Reply to This | # ]

Cargo Cultists in RIAA, Disney, Microsoft, etc.
Authored by: Wesley_Parish on Sunday, September 26 2004 @ 10:43 PM EDT

I once read a fascinating book called Road Belong Cargo, by the anthropologist Peter Lawrence, about the Yali Cargo Cult in the Madang District in Papua New Guinea. In it, he analyzes the traditional Melanesian/Papuan religious structure as a form of contract with the deities to perform ceremonies which would compel the deities to perform their functions, that of ensuring crop fertility and hunting success. He also analyzed this in connection with the concept of the inheritability of gods and rites (cultus).

With the conclusion that since gods and rites(cultus) was inheritable only through bloodlines, if a particular tribe had success in any of those fields of endeavour, and another tribe wanted such success, it would endeavour to trade for the rites used by the first tribe.

Anyone with a sense of the ridiculous can see the connection between this form of trade and the "modern", "advanced" concept of Intellectual Property Rights - it's practically identical.

Anyone with a sense of the tragic can also see just how terribly wrong the whole thing was handled by the colonial authorities in Papua New Guinea and in related situations. The locals wanted the advanced technologies, they wanted the improved techniques, they wanted the improved health, etc. They wanted to trade. And the colonial authorities never bothered to meet them even half-way. If they had bothered to teach them about modern machinery, how modern societies work, etc, instead of treating them as "bush kanakas" ...

It's a bit of an object lesson if you care to read it - one that points out how the Free/Libre Open Source Software community is much, much more realistic and pragmatic than the cargo cultists in Disney, RIAA, Microsoft, etc.

finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

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Talent Crunch
Authored by: Anonymous on Sunday, September 26 2004 @ 11:40 PM EDT

Just to take the IP craziness pf corporations to another extreme: At one point, corporations will find that they will have to return to the practice of training, no wait, make that ``educating'' their new hires. Why? Well, with all the knowledge locked up in their IP vaults and guarded with legions of lawyers, there will be no qualified entry-level personnel for them to hire. You see, it will be illegal for them to have received the technical training needed to create the corporation's next product line. Anyone who attempted to teach their technology would be attacked by the legal system for copyright infringement, patent infringement, DMCA violations, etc. Then, unless the leaders of that corporation decide to ante up and get in the business of being an educational institution, no one's going to be working because they can't get hired. And those that are fortunate enough to be working will find that they cannot change jobs because no other company would want to take on the legal system when the inevitable lawsuits come from the new guy's previous employer.

Crazy? Probably but I would not be surprised one bit to find out that some business leaders would actually see this as a positive future. Heck, SCO wants to make it illegal to employ another person's ``methods'' (OK, maybe only SCO's methods). Imagine how I or anyone would have been able to post to this site had, say, Boole or DeMorgan patented their work. Steam-powered analog computers perhaps? That RAND photo that PJ alluded to (which I've seen and is hilarious) wouldn't be far off the mark.

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Speaking of false premises...
Authored by: Anonymous on Monday, September 27 2004 @ 12:31 AM EDT about "the world's shift away from corporate creativity to
individual creative work"?

Corporate creativity is a myth. It is the individuals within a corporation who
create a strategy, and an architecture to shape the strategy and it is the
creativity of the individual implementers who make the architecture into a
useful product. Corporate creativity is nothing more than channeled individual
creativity and that is exactly what Groklaw is.

So PJ, like it or not I guess that makes you CEO and lead architect of the
Groklaw Corporation!

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RAND Home Computer of 1954
Authored by: Paul Johnson on Monday, September 27 2004 @ 01:09 AM EDT
Google saves the day. The picture (I assume its the one PJ is thinking of) is


These ideas and others like them can be had for $0.02 each from your friendly
local idealist.

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Doctors and Scientists ARE patenting ideas
Authored by: DarlingMcBribe on Monday, September 27 2004 @ 09:49 AM EDT
And this choice says, if we all share our knowledge, we can all benefit from the common pool of knowledge, and that way none of us has to keep recreating the wheel and we'll all benefit from the rapid innovation and progress. Doctors do that. Scientists do that.

It would be ideal if that was true in general for Doctors and Scientists. However, you should take a closer look at what Scientists at Pharmaceutical companies are doing, how they treat their "inventions" that are subscribed to the public by the Doctors. They PATENT the drug molecules and the procedures to make or purify them. Even though many of the patented drugs can be found in nature - so they are not in any sense inventions, scientists merely discovered their beneficial effects.

I would recommend the book "The Billion Dollar Molecule: One Company's Quest for the Perfect Drug" to get some insight into the process how science is being hijacked and taxed by IP rights in today's corporate world.

IANAL, IANAG, IARASC (I am running a software company)

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On FOSS, IP Laws, and Expanding Legal Choices
Authored by: Anonomous on Monday, September 27 2004 @ 12:42 PM EDT
Why couldn't the tax laws be written so that any publisher gets a tax benefit for any such donation?

Better yet, federal or state government should apply a property tax to intellectual property.

Copyrights could be automatic for a limited period (say, 14 years) without taxation, then could be extended for a longer period (say, indefinitely) thru registration. Registered copyrighted property could be subject to an annual property tax based on the commercial value of the property.

If real property can be assessed for valuation, so can intellectual property. And, for a default valuation, we need look no further than the standard penalty for copyright violation.

Sales and declined public offers would set a floor on the assessed value. If I credibly offer to buy Mickey Mouse for 1.5 billion $ then Mickey can credibly be taxed on at least that value.


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PJ is inconsistent on the GPL
Authored by: dreese on Monday, September 27 2004 @ 02:53 PM EDT
First, let me defend PJ:

1) I have learned an incredible amount about legal issues by reading Groklaw,
and I continue to read everything she writes.

2) She contributes her time and effort to help the community, and that
contribution has been large and visible.

3) I admire her decision not to profit directly from Groklaw and believe the
indirect benefits to her personally will be positive and immense.

But it seems like she has a fundamental misunderstanding of the GPL.

In the article, she mentions that she licenses her own work under a Creative
Commons license. A Creative Commons license for written articles is not the
same as the GPL for software. GNU's Free Documentation License (FDL) is closer
to the GPL than Creative Commons.

The FDL says that "The purpose of this License is to make a manual,
textbook, or other functional and useful document 'free' in the sense of
freedom: to assure everyone the effective freedom to copy and redistribute it,
with or without modifying it, either commercially or noncommercially"

The ability to redistribute someone else's work commercially is a key aspect of
the FDL (and the GPL).

PJ says she wants to restrict "rip-off artists from publishing a 'Collected
Works of PJ' and keeping all the money themselves, despite me doing all the
work..." and I agree with this sentiment. However, the FDL expressly
allows this activity, and the GPL allows it for software.

In fact, Red Hat, SuSE, and other distributions are exactly that: a collection
of someone else's work packaged into a more usable medium and redistributed

So, I have a great respect for PJ, but to be entirely consistent I believe she
should license her own work under an FDL-like license if she continues to
recommend the GPL for software.

On the other hand, if she wants to prevent commerical redistributions of her
work, then a Creative Commons-like license should be recommended for software
instead of the GPL.

My fundamental assumption is that if PJ truely values the GPL and *all* that it
stands for, then her own work should be "free" in the same way that
GPL-licensed software is free.

I don't necessarily recommend that, but it would be more consistent.

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On FOSS, IP Laws, and Expanding Legal Choices
Authored by: Anonymous on Monday, September 27 2004 @ 04:41 PM EDT
anthropoligist -> anthropologist

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On FOSS, IP Laws, and Expanding Legal Choices
Authored by: blacklight on Tuesday, September 28 2004 @ 02:57 PM EDT
"Groklaw is neutral as to politics, and this isn't an invitation to discuss
which political group is right or wrong. That's all off topic on Groklaw."

I'll second that: groklaw simply dos not have the logistical resources - human
and otherwise, to support extended, in-depth discussion of any political topic -
even those topics that are worthwhile. In general, no topic can be discussed
with fairness unless it is discussed in-depth. And our self-imposed requirement
for fairness dictates that we don't discuss politics here.

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