🚀 go-pugleaf

On Thu, 01 Oct 1998 22:24:08 GMT, norman@arcady.u-net.com (NF Stevens)
wrote:

>unruh@physics.ubc.ca (Bill Unruh) wrote:
>
>>In <9nQpxDAYqKE2EwlY@dlsl.demon.co.uk> Jason Clifford <jason@dlsl.demon.co.uk> writes:
>
>[snip]
>
>>>A product such as software is the result of lots of hard work by a
>>>limited number of people (often just one person). There is nothing to
>>
>>So do all businesses. That is the point I am making. There is little
>>difference between selling software or selling coffee or laundry
>>cleaning. 
>
>But if I sell a cup of coffee I do not give the person who buys it
>unlimited power to copy that cup of coffee. With software the
>cost of copying and the distribution media are a tiny fraction
>of the cost of creating that software.
>
>[snip]
>>
>>Of course I do not complain. It is when society says that Bob can have a
>>monopoly on selling that I suggest we carefully examine why we are
>>handing him this monopoly power, and to make sure that society receives
>>due benefit from handing him that monopoly.
>
>But there is no monopoly. Anyone can write their own word processor,
>or spreadsheet. There is nothing to stop them. Similarly copyright on
>books etc does not stop anyone writing their own novel.
>
>> I am not in principle
>>oppeosed to handing him such a monopoly for a limited time, but that
>>time should be limited to the minimum needed to accomplish the end of
>>maintaining the encouragement to him of producing such goods. And also
>>making sure that society gains benefits (eg access tot he source code)
>>for that grant of monopoly powers. 
>
>Copyright lasts for the author's life and then some (50 years?). Why
>should software be any different from other copyrightable works?
>
>[snip]
>
>>>No such monopoly does exist. Anyone is free to create a competing
>>>product which fact Linux proves.
>>
>>No they are not. As the whole "look and feel " lawsuits showed.
>
>IIRC all of these look and feel lawsuits failed.
>
>> And I
>>cannot simply make a copy of the other's work and go out and sell it, as
>>I can for say a hammer, or a cup of coffee.
>
>But not for a novel, or a song or a piece of poetry.
>
>> They have a monopoly on
>>selling their item or even derivatives thereof (eg I cannot sell Word on
>>say Linus. MS would sue me)
>
>But you can write your own word processor.
>
>[snip]
>
>It seems to me that all you are saying is that you
>should be allowed to benefit from other's work
>without paying for it. It is unlikely that the law
>will be changed to allow you to do this.
>
>Norman


This is a long discussion, and I don't know how the ideas have
developed, or deteriated (?) further down the thread.  But if I repeat
points that have been made, I apologize.

Unlike a lot of long threads, however, the ideas being exchanged here
are important and elusive.  I hope no one minds if I put in my own two
cents.

**a disclaimer here.  I am a lawyer, but I don't specialize in this
area of the law.  I do civil rights, and I would love to take on some
of these ideas in the context of a civil rights case.**   Most of the
statements here about the law are general.  In some cases, I am sure
courts have decided the various issues, and since I don't track these
decisions, I may be off on a couple of points.  But I'm really just
trying to discuss ideas, not give a lecture on the law.

Intellectual "property" is protected by a number of laws, the chief of
which, but not the only, are the patent and copyright laws.  A patent
gives the holder an exclusive right to the commerical exploitation of
an invention.  A copyright gives protection to original creative work.


Some software can be patented, most can be copyrighted.  Most of the
discussion here related to copyright, so I will stick pretty much with
that.

On the one hand, there is the legitimate argument that a person who
creates or develops something should be entitled to gain from it.  I
think everyone pretty much agrees with this.  The contrary view seems
to focus primarily on problems that exist in the software industry and
point to the copyright laws as being at least partly responsible.
Initially, it seems to me that there is a question as to how much the
copyright laws are really to blame, but I'll get to that further
below.

Patent and copyright laws existed long before there was any software,
and when software came along, all involved had to find a way to
squeeze it in to existing laws.  This, I believe, is a fundamental
problem, because the analogies just don't work.  Software is nothing
like a book.  A book is written to be read.  While software code can
be read, that's incidental.  Software is functional, it's to be used.
Comparing books and software just can't be done.  When was the last
time you picked up some new code and spent the evening curled up in a
rocking chair by the fire reading it?  

Software is clearly not for reading.  It is more like music.  It can
be noted in a written form, but its essence is in its performance.

Should we then compare software to musical works?  Musical work is
protected in two different ways.  First, the musical creation itself
is copyrightable.  Second, the performance of music can be
copyrighted.  For example, so and so writes a song, and copyrights it.
Then Mariah Carey records it, and it becomes a hit.  

The interesting thing about musical copyrights is that the performance
of the music is given greater, or at least different, protection than
the writing of it.  Once you copyright a piece of music, anyone can
perform the music, and sell the music, without your permission.  They
only thing your permission is needed for is if someone wants to sell
the music in written form, i.e., sheet music.  But if I want to record
it and sell my performance of your music, you can't prohibit that.
What I do need to do is pay you a statutory royalty, which amounts to
a few cents everytime I perform the song publicly or every time I sell
a record, cassette, cd, whatever with the song on it.  This is called
a statutory license, and it's compulsory.  The idea is that music
should be shared and listened by all.

The performance is protected more like a book.  Only the holder of the
copyright has the right to sell a reproduction of the performance.

Strangely enough, even though the holder of the performance copyright
has more control over his work, the writer of the song usually makes
more money, because he collects a royalty everytime it is played on
the radio, t.v., etc.  Although the royalty is only a few pennies, if
your song is a hit and is played five or six times a day on the radio,
you multiply that by thousands of radio stations and you're talking
serious money.  [It doesn't compare, however, to the money that's made
in "upgrading" software.]

Another thing to remember about copyrights and patents.  You only get
production by revealing your work.  You can't keep it a secret.  The
formula for coca cola is not patented or copyrighted for exactly that
reason.  Coke doesn't want anyone to know what it is.

Frankly, this is what puzzles me about some of the discussion about
software copyrights.  What is copyrighted?  Is it the source code, or
is it the assembled code?  When it is submitted to the copyright
office, is it submitted on paper or electronically?  Obviously, anyone
can obtain the assembly code, so that's not a secret.  I imagine all
the complaints about MS not sharing code has to do with the source
code.

Here's a question.  I don't know the answer, but I suppose I could
find out.  If the source code is secret, it would seem to me there's
room to argue it's not copyrighted.  How hard is it to dissassemble
the binary into the source code?  Obviously, it's a function of the
size of the program, but what else?  

On the other hand, you can copyright a piece of music by submitting it
in recorded form.  You don't have to transcribe the music, and the
selling of any transcriptions would violate your copyright.  I don't
know if the law works in the same way for software.

It seems to me that it might be better to treat software more like
music.  The production of the software would be in its packaging,
installation routines and support.  The creator of the software would
have a huge leg up in terms of competition.  The source code would be
copyrighted, and anyone could "perform" it himself, that is to say,
compile and install it.  Of course, it couldn't be written down and
distributed without the author's permission.  Commercially, it could
be produced by other vendors, but they would have to pay a statutory
license to the creator.

To me, this meets the concerns of both sides of the argument.  The
writer of the code gets paid.  Other vendors (performers) who can do a
better job with it have the opportunity to do so, and they can get
paid while still giving some compensation to the original author.

To a certain extent, it seems to me that this is the philosophy that
drives the Redhat/Linux effort.  You pay Redhat not for the o/s, which
anyone can get for free, but for its packing of it, with installation
routines, help, support (such as it is) and the like.  I believe that
this will eventually work out to be a win win situation, as Redhat can
make money (but not control the market) while superior software
becomes more accessible to the masses.

A couple of more comments.

License agreements have nothing to do with copyrights.  In my view,
most shrink wrap license agreements are worthless.  They're a sham,
and I don't believe they're enforceable.  This is not to say you can
buy one copy of word perfect and distribute it to 80 users in your
company, no more than American Airlines can buy one copy of a movie
and copy it and play it in all its airplanes.  But it's not the
license agreement that gives protection, it's the copyright law,
because the copying and subsequent commercial exploitation of the work
violates copyright law.  American Airlines does not need to pay for
each passenger that views the movie, however, anymore than a radio
station pays royalties according to how many listeners it has.  (But
American might have to negotiate some deal with the owner of the
production, but that because of the law, not a shrink wrap license
agreement).

Let's say you buy Excel and install it on your machine.  You're
working on a complex spreadsheet, and you call the person in the
office next door to come over and help you out.  You're both hovering
over the screen, and she has an idea and takes the keyboard away from
you and makes some changes in your work.  I believe this would violate
most license agreements, but it's absurd.

A tougher question arises when there's a single installation on a
network and it's accessible to multiple users.  Here I believe it's
the vendor's responsibility to decide whether the program will run on
remote machines via a network.  

The last point to remember is that most of the litigation over
copyrights is between two commercial entities, each of which wants to
make money on software.  The consumer is never represented in these
cases, therefore I don't think the cases really address most of the
issues we're dealing with here.  As long as you buy software for your
own personal use, I think you can do with it whatever you want.  Copy
it, dissassemble, modify the code, it's up to you.  It's only when you
want to sell this to someone else that copyright comes into play.

Anyway, these are my ideas, at least for now.  

c. 1998.  Michael O'Neill.  All rights reserved. he he he.