Re: Re: Napster: stealing another's vs. giving away one's own Linux vs WMDs?

How is the napster technology different from the linux technology. The napster technology the source code which was the subject of user to user collaboration belonged to those who did not wish it to be collaborated or to those who did not subscribe to an open source distribution method. The idea of giving away one's own product might be closer to the open source model?

What both linux and Napster point out, is that copyright law and patent law interfere with the most unique and most productive aspect of the internet; that of worldwide, on the go, interactive in real time "collaboration between user and developer". Such technology threatens to empower the artist or the software developer directly, and to leave the middle man, the guy who lives off the brillance of the developer and the ignorance of the user out. Developer or artist the need is a market of users or customers; the internet, but for patent and copyright laws, can enable that without the middle man.

Protecting private interest in software and other products of the human mind with monopoly powers and private property rights defeats the purpose of the copyright and patent laws, because they interferes with, retard, and even prohibit the art and science use of the colloborative powers of the net to advance their wares and because private property rights as applied to products derived from human mental processing, violates the principle of natural rights and the justification for mankind agreeing to nation state servitude. I see the day, when new ideas that have been dumped on the net, packaged in something like the GPL license, will become the giant products that users around the world depend on. Linux is the first such product, but commerical interest seek to make it the last.

The SCO lawsuit against IBM seems to have been expanded to include a challenge which, in my opinion, threatens the entire of the open source. As most know, Linux is an open source operating system that out performs most if not all of the "proprietary ones". Linux has in practice been so successful that it has challenged most of the big commercial operating system providers [except IBM who joined Linux to its product] to such an extent that an all out, effort, to kill it seems to be ongoing. This time, as I understand it, the SCO legal teams plans to claim that federal law preempts state law, thereby if successful, effectively terminating the most successful, most far reaching, best deployed, most widely distributed and used, by far the most stable PC operating system technology ever developed for popular PC processors, barring none "Linux". Even though most of Linux was developed for free and even though daily, new technology is incorporated into its innerards, such that the great Linux of yesterday is even greater on each of the succesive tomorrows, its death is desired? The open source model has a technology self enhancing loop built in and given wide distribution, high user demand for the focus of the product, the users themselves will make the product better for everyone.

Tell me its not true, that the world of law would assist commerical interest to kill linux in deference to the constitutional obligation to advance the arts and the sciences?

Raising the argument that "federal law" usups the "State Laws" might be a good one and so it threatens the most progressive operating system the world has yet seen. But then the trump card might be the achilles heel for software patent and copyright laws in general. If it can be shown that the patent law and copyright laws as applied to software and operating systems actually challenge the survival of open source technology, such as the GPL licence or linux, etc. then in might be argued that the laws of copyright or patent laws are unconstitutional, when applied to the any use on the internet, because they hinder the advancement of science and technology, not enhance it.

The technology that is threatened is not merely the technology contained in the operating system called "linux", which itself is fantastic, but the ability of open source as a method to incorporate and integrate new technology as it is developed, whereever it is developed, whenever it is developed, by whomever develops it. The challenge is to the heart of the success of a means of distribution of software and of a means for maturing software. The challenge seems to be directed at the heart of a method of software distribution which seeks to exhange "free use with total code access" for user enhancements and updates. The exchange/collaborate method accounts for much of the phenomenal growth of such products as linux, which products have been grown from infancy to living technology beasts on the fly, on the net, over the past 15 years.

How could a court call any law that would challenge such a scientific achievement anything but unconstitiutional and if not unconstitutional, unreasonable? I observe that the constitution clearly says congress can make patent and copyright laws which advance the arts and sciences, and that implies that Congress cannot make laws which kill the best scientific development that world has ever seen.

Clearly, if the court were to cripple or block the continued use or curtail by its actions the viable development and widespread application of open source or the essence of the GPL license or anything of that kind; would not that be a direction contrary to advancing the arts and sciences? Would not that show that courts favor software patents and copyrights as instruments of commerce rather than as means to advance the arts and sciences. Would not this mean that patent and copyright laws would find their authority in the commerce clause rather than the Patent Clause? Would that not put the court in the position of changing the constitution itself?

Of course the court could also say that all software already developed or developed in the future, would have to adopt in form and substance, to the GPL license model because only that type of model can be shown to serve an ultimate long term beneficial impact on the arts and sciences. It would seem to me the SCO suit raises the question, is the world entitled to open source? Do not lawmakers and societies in general owe it by persuasion of the natural rights of mankind to make public (to deny the application of patents or copyrights monopolies to) technologies that impact human life quality? I think so.

Unless it can be show that the greater advancement in the sciences would result from creating "of all new technologies" a private monopoly as opposed to using an open source method, a reasonable court ought to find for linux. Linux shows that ideas, in their infancy, if licensed in ways that they can enlist the users themselves to mature the product through the concept of multinational cooperation [collaboration] is the way to use the collaborative power of the Internet. It is after all the collaborative benefit of the internet that software patents and copyrights theaten to shut down and it was exactly that benefit that matured linux from a dream to a highly mature product.

The benefit of a GPL type model far outweighs any private monopoly of patent or copyright in advancing the arts and sciences. It also does not seem to violate the Patent and Copyright clause requirement of "advancing the sciences .. and or the arts" as the monopoly model so often does.

I am not a lawyer, but I am appalled to think that my government would ignore the constitutional limitation and write patent and copyright laws which would, even for a minute, threaten the unequalled sucess that software such as linux has turned out to be or the collaborative powers of the Internet that linux is so dependant on. But then the court shut down a product obviously dependant on collaboration, called Napster? There is no telling the damage that decision did to the arts nor can it be calculated the numbers of unknown artist who were denied access to the markets for their wares. All of these decisions have basically left the little guy out.

Please comment.

sterling

At 11:05 AM 10/3/2003 -0400, Stevan Harnad wrote:
>Here are some links to where the very same napster disanalogy has come
>up in the past:
>
>http://www.ecs.soton.ac.uk/~harnad/Hypermail/Amsci/0671.html
>http://www.ecs.soton.ac.uk/~harnad/Tp/resolution.htm#9.1
>http://culturemachine.tees.ac.uk/Cmach/Backissues/j002/Articles/art_harn.htm
>
>Stevan Harnad
>
>On Thu, 2 Oct 2003, Peter Suber wrote:
>
>> Not Napster for Science
>>
>> If the past is any guide, it will be hard to argue for open access in a
>> month when P2P music swapping is a hot story in the news. Academics and
>> journalists who haven't encountered the idea of open access to
>> peer-reviewed journal articles and their preprints --just the people who
>> need to hear the argument-- find it too easy to assimilate this unfamiliar
>> idea to the more familiar one. "Napster for science" is the inevitable,
>> false, and damaging result.
>>
>> This is such a month. The Recording Industry Association of American
>> (RIAA) sued 261 music swappers on September 8, hoping to scare and deter
>> tens of millions of co-swappers. The lawsuits have greatly intensified
the
>> public debate on file sharing and copyright. In fact, the discussion is
>> now broader and deeper, touching on what universities should do, what
>> parents should do, what music lovers should do, what musicians should do,
>> what music companies should do, what courts should do, and what
legislators
>> should do.
>>
>> So this is a good time to say, once more, in public, with emphasis, that
>> open access to peer-reviewed research articles and their preprints is
>> fundamentally different from free online access to music files, despite
one
>> obvious similarity.
>>
>> What makes music swapping interesting is that most musicians don't consent
>> to it and most file swappers don't seem to care. But I don't want to talk
>> about that, really, except as a contrast to the situation with journal
>> articles. Scientists and scholars *do* consent to publish their journal
>> articles without payment. This has been the rule in science and
>> scholarship since 1665 when the first science journals were launched in
>> London and Paris. Scholarly monographs and textbooks are different,
>> because authors can hope for royalties. For the same reason, most music,
>> film, and software are different. But journal articles are special.
Music
>> companies and music lovers would call them peculiar.
>>
>> The fact that scholars eagerly submit articles to journals that don't pay
>> for them, even journals that demand that authors sign away their
copyright,
>> is probably the best-kept secret about academic publishing among
>> non-academics. It's the fact that simultaneously explains the beauty of
>> open access and the mistake of "Napster for science".
>>
>> This peculiarity of journal articles should draw some of the public
>> attention generated by music swapping. Defenders and critics of music
>> swapping should both hear this intelligence and say, "Really? Scholars do
>> all that work researching and writing, and then give it away to some
>> journal? Either you're lying or free online access to journal articles is
>> completely different from free online access to music." But instead, we
>> tend to hear the opposite. Most people disregard this difference as
>> trifling or technical and equate consensual open access with unconsensual
>> Napsterism.
>>
>> If "Napster for science" communicates the basic free-of-price idea to a
>> larger public, then isn't it a useful phrase? The answer is No! It's
true
>> that music swapping is about free online access to content. That's the
>> important similarity. But it's equally about an army of content creators
>> who resist free online access. It may be about freedom, but it's also
>> about copyright infringement. Careful writers, with careful readers,
could
>> successfully compare open access with the first feature of Napsterism and
>> contrast it with the second. But why bother? It's much more effective to
>> define open access in its own right than to yoke it to the better-known
but
>> different concept and then try to undo the confusion that results.
>>
>> Copyrighted scholarship does not face the same mass infringement that
>> copyrighted music does. And yet, like copyrighted music, most copyrighted
>> scholarship is locked away behind economic, legal, and technical
>> barriers. You might think it's ripe for a real Napster attack. But
nobody
>> advocates this, least of all the open-access movement. Open access
>> proponents know that the peculiar legal standing of journal articles makes
>> free online access possible without infringement. The simple, sufficient
>> reason is consent. When authors and copyright holders consent to open
>> access, there is no infringement.
>>
>> With sex, we have no trouble seeing that consent is critical. Sex with
the
>> consenting is one of life's great goods. Sex with the unconsenting is a
>> crime. If the public could see this fundamental distinction behind forms
>> of online access and file swapping, then open-access proponents could
>> welcome the comparison to Napster. It would show open access in the best
>> light. "You know that kind of free online access to music that makes most
>> musicians and all studios hopping mad? How cool would it be if they
>> consented to it? Imagine that. That's open access."
>>
>> Open access is free access by and for the willing. There is no vigilante
>> open access, no infringing, expropriating, or piratical open access.
>>
>> Of course I'm not saying that all journals consent to open access. Most
>> don't. I'm saying that academic authors consent to write and publish
their
>> research articles without payment. The consent to relinquish payment is
>> directly connected to the consent to open access. Musicians would either
>> lose revenue from open access or fear that they would. That's why most
>> don't consent to it. But because scholars have already relinquished
income
>> from articles, they have nothing to lose and everything to gain from open
>> access.
>>
>> We can go further. Scholars don't just consent to relinquish payment and
>> copyright. They are eager to publish --at least journal articles-- even
on
>> these harsh terms. Nothing shows more clearly that they write journal
>> articles for impact or influence, not revenue. Their interest lies in
>> making a contribution to knowledge, partly for its own sake and partly
>> because advancing knowledge will advance their careers. This explains why
>> open access serves their interests, and why limiting access to paying
>> customers (the traditional model in scholarly publishing and the RIAA
model
>> for music) would violate their interests.
>>
>> Music swapping was practiced in the age of vinyl, but it took digital
music
>> and the internet to make it widespread. It's widespread now because
>> something unexpectedly good happened, not because some creeping criminal
>> malice overtook tens of millions of people. We graduated from the age of
>> vinyl in two stages, first by recording music in bits, and then by
creating
>> a worldwide network of bit-swapping machines. This was revolutionary
>> progress from every point of view. Now that we can make perfect copies
and
>> distribute them at virtually no cost to a worldwide audience, we should
>> find ways to seize this beautiful opportunity, make it lawful, and enjoy
>> the new access to information that it makes possible.
>>
>> The RIAA and commercial journal publishers both have reason to fear that
>> the internet will make them unnecessary. They both respond to this fear
by
>> making their products harder to use, less accessible, and more expensive,
>> which is surely perverse. The RIAA has now gone even further, trying to
>> intimidate users and make them afraid to take advantage of the power of
the
>> internet. If it wins, then digital technology will be like sex in the
>> Victorian age. Virtue will be construed as resistance to all the
beautiful
>> temptations. This will chill advances even to the consenting.
>>
>> I know that some fraction of music swapping carries the artist's consent
>> and encouragement. These artists consent to free downloads because for
>> them (as Tim O'Reilly put it in another context) invisibility is worse
than
>> infringement. So while most musicians fear losing revenue from open
>> access, some don't. While most don't consent to it, some do. This fact
>> upsets the digital Puritanism of the RIAA and blurs the moral lines it has
>> tried to draw for music swapping.
>>
>> It may be that open access to music will increase net sales, and that most
>> musicians below the top ranks of superstardom will profit from it. I'm in
>> no position to say. But it is clear that the RIAA is engaged in
>> self-serving oversimplifications about both the economic interests of
>> musicians and the truth about copyright. The comparison to open access
>> helps us draw at least one lesson: copying digital files is *not*
>> theft. It's only unlawful when the files are copyrighted and when the
>> copyright holder refuses consent. But many files are in the public
domain,
>> and many carry the copyright holder's consent to free or open access.
This
>> is true for growing bodies of both music and scholarship. This is more
>> than lawful; it's wonderful.
>>
>> News coverage of the RIAA's 261 lawsuits
>> http://news.google.com/news?hl=en&edition=us&q=riaa+261
>>
>> * Postscript. In my view, Phase One of the open-access movement is to
>> secure open access to journal articles and their preprints. They're the
>> easiest case or low-hanging fruit because their authors already consent to
>> write and publish them without payment.
>>
>> However, we should imagine a Phase Two in which we persuade authors and
>> artists who do not currently consent to reconsider. Ripe for persuasion
>> are authors of scholarly monographs, who rarely earn royalties and, even
>> when they do, would benefit far more from the wide audience than the
meager
>> checks. Also in this category are programmers who might shift from priced
>> to open source code. Novelists might be persuaded by the experience of
the
>> Baen Free Library that the free online availability of the full-text
>> stimulates more sales than it kills. Finally, it might include musicians
>> who decide, with Janis Ian, that free access, wide recognition, and good
>> will generate more sales than high-priced invisibility.
>>
>> We can also imagine a Phase Three in which we enlarge and protect the
>> public domain by rolling back copyright extensions, establishing the
>> first-sale doctrine for digital content, restoring fair-use rights denied
>> by DRM, and letting federal copyright law preempt state contract or
>> licensing law. While all these steps would be advances for the free flow
>> of information, copyright reform is unnecessary for open access. All we
>> need is consent. All we need for the bulk of science and scholarship is
>> Phase One. All we need for music is Phase Two.
>>
>> If all we need is consent, and our idea is a worthy one, then all we need
>> is a chance to spread the word about it. We should be able to bootstrap
>> this good idea into reality by explaining, educating, and
>> persuading. Spread the word. (How cool is that?)
>>
>> * PPS. Does anyone know an online directory of *open-access music* --MP3
>> files that are lawful to download and share because the copyright holder
>> has consented? Note that services like Apple iTunes that offer lawful
>> downloads, for pay, don't count.
>
>
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Received on Tue Oct 07 2003 - 19:47:15 GMT