Re: Another vote for the death of copyright

On Sun, 15 Aug 1999, John Lederer <johnl[_at_]ibm.net> wrote:
>
> An almost lyrical, if confusing, suggestion that the foundation of
> copyright is inapplicable to software:
>
> http://firstmonday.org/issues/issue4_8/moglen/index.html

I read the piece by Eben Moglen recommended and linked by John Lederer, it's entertaining and makes some interesting points. The underlying premise is that Linux (the operating system) proves that free software is a feasible, indeed inevitable, alternative to software made by Microsoft, because everyone around the world is pitching in to help create it and shares it because they like to share (and to defeat Microsoft, I think). As the piece itself concludes (quoting Chou En-lai on the French Revolution), it's too early to tell whether this premise will hold up. No one really knows how, or under what conditions one network will replace another with generally equivalent capability. And if you remember the hype about UNIX in the mid-80's, you know that we need to wait a bit before drawing any conclusions.

There's also quite a big jump from operating system software such as Linux to applications, broadly defined (the old PC software term, meaning a word processing program or spreadsheet program, seems rather obsolete). When you consider software at the level of an enterprise-specific application that an economically rational actor believes gives it a competitive advantage -- which is not, necessarily or even probably, something you can buy off the shelf or download from a server in Hungary -- Moglen's construct, to my mind at least, starts to break down. And that represents a huge amount of software development activity, no one really knows how much because so much of it is done internally or under contract. I could pull a couple of licenses off my shelf for certain highly specialized software where the annual license fees for a single customer alone would make the licensor one of the top 100 software firms in the country. These guys would be happy to use Linux as a platform, I'm sure, if it worked, if the customers didn't mind and it saved them development time. But no one is going to do what they do following the Linux development model if for no other reason than that the area is too specialized and the "network" of potential contributors just isn't there -- in addition to the fact that the customers can't afford to wait ten years for the product to become commercially stable, and don't exactly want the rest of the world to know the functional specs.

Moglen also assumes a rather simple dialectic: forces driving toward total protectionism on one hand, forces driving toward total anarchy on the other. The first are stooges doing their masters' bidding for the pleasure of receiving the crumbs from their tables, the latter are heroic freedom fighters. This may be emotionally satisfying for people who would like to imagine that they are participating in a Star Wars movie plot, I guess, and it probably gets you more fan mail than the usual sort of boring legal writing. But the battle of good vs. evil theme, implying one winner and one loser, is such an oversimplification that it impedes constructive analysis. For example, I agree with Moglen that we are in a period of rapid change -- but that doesn't mean the result is going to be one extreme or the other, it's likely to mean something in the middle, sort of new, sort of familiar. The new equilibrium may draw a different line as to what people will try to treat as proprietary, but the game will go on.

Let's say the only road into town is a toll road owned by one guy who happened to get there first. It's one thing for everyone in town to pitch in voluntarily to help build a new road into town to avoid the toll, but the individual townspeople still have their own stores in the town and they're going to use the money they saved by building the new road to compete with each other harder than ever. To conclude from their ability to cooperate when it's in their self-interest to do so that society would be better off if we forced people to cooperate by abolishing their ability to act selfishly would be to repeat the great political fallacy of the last century. The stores go bad and no one has the money or inclination to help when the free road falls apart, and in the end one guy still ends up owning the toll road.

Kerry L. Konrad
<k_konrad[_at_]stblaw.com> Received on Mon Aug 16 1999 - 23:33:59 GMT