Open software and copyright (Was: Re: thought for the week)

On Tue, 27 Jul 1999, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Fri, 23 Jul 1999, Peter D. Junger <junger[_at_]samsara.law.cwru.edu> wrote:
> >
> > Limiting my remarks to software, I agree that getting rid of coyright
> > for computer programs would reduce investment (and return on investment)
> > drastically, and that, in consequence, Microsoft would no longer present
> > an anti-trust problem. On the other hand, considering the successs of
> > the free/open software movements, it is my opinion that there would be
> > no appreciable reduction in the quantity [except for a drastic reduction
> > in the number of incompatible programs arising from efforts at product
> > differentiation] of programs and that the quality of programs would be
> > greatly improved.
> >
> > Notice that RedHat in its efforts to turn a five billion dollar business
> > into a five hundred million dollar business is investing considerable
> > money in supporting programmers who are creating free/open software.
> >
> > It isn't the copyright regime that is encouraging those efforts.
> >
> > And it wasn't the copyright regime that was responsible for the creation
> > of Linux, Apache, Sendmail (and Qmail), Bind, TCP/IP, C, Unix, Perl,
> > Python, or the World Wide Web.
>
> Of course there is an alternative to individual copyright
> ownership in the ancient practice of patronage. Whoever is
> rich enough to keep an author can own his/her works -- and
> decide to give them away.
>
> - Employees of the Federal government for instance
> have no copyright whatsoever.
> - Employees of Microsoft have no claim on copyrights
> that belong to their employer / patron.
> - Other authors may negotiate and keep their copyrights.
>
> Is it not good to have options that serve a diversity of talents
> and life styles?

Probably. But your question is hardly responsive to the issue of whether, limiting the discussion to software, copyright protection leads to more creativity or to more software or to better software. The success of the free/open software movement, and the dependency of the Internet and the World Wide Web on software created without copyright protection -- or with only copyleft protection --, are strong empirical evidence not only that copyright protection is not needed to encourage either creativity with respect to or the production of software and that our current copyright protection regime leads to wasteful rent seeking and to excessively high costs to consumers. What is the marginal cost of a copy of Windows 98? What is its price? What is Microsoft's return on investment?

Anyone who is interested in the economic implications of the free/open software movement should read Eric Raymond's _The Cathedral and the Bazaar_ <http://www.tuxedo.org/~esr/writings/cathedral-bazaar/> and some, at least, of the responses to it, including Fare' Rideau's _About Eric S. Raymond's Articles_
<http://www.tunes.org/~fare/articles/about_esr.html>, with its excellent discussion of the intellectural property issues that Raymond raises, or, perhaps one should say, avoids.

As to the larger question of whether an economic case can be made for copyright protection in general, the best article on the subject is Justice (then Professor) Breyer's _The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs_, 84 Harv. L. Rev. 281 (1970).

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu/
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists