Date: Sun, 20 Sep 1992 17:27:16 -0700 From: James I. Davis Subject: File 1--J Davis response on Piracy Regarding Robert Woodhead's and Wes Morgan's response (in CUD 4.42) to my earlier posting about software piracy and property rights, there are a few points to which I would like to respond. (As a disclaimer, I am not trying to defend the right to bootleg software, that is, to duplicate and _resell_ software. The discussion below deals with the unauthorized duplication and sharing of software, where no money changes hands.) One common defense raised for intellectual property rights, and against the unauthorized sharing of software, is that it injures the creator by robbing him or her of some deserved reward. And on a related note, the creator is entitled to compensation, and intellectual property rights are required to guarantee that. [Mr. Woodhead writes "[by unauthorized copying of software] you are showing a lack of respect for the creative efforts of other people." Mr. Morgan writes "If I pour 4 years of my life into the development of Snarkleflex, I DESERVE to profit from it." Denise Caruso (now editor of _Digital Media_) wrote a hilarious description a couple of years ago in an _SF Examiner_ column: "Why would some genius programmer, slaving away in a dark den redolent of cheese puffs and body odor, be willing to work for years on a revolutionary new software design if he or she didn't have any guarantee of being able to make money doing it?"] There are several fallacies in this argument. First, the reality of software production in the late 20th century is much different than this image. Most software production is NOT a cottage industry. The industry has quickly matured in the past few years into a typical monopolized industry. Most patent filings are by corporations. Most software is not purchased from the individuals who create the software, it is purchased from companies who have required their engineers to sign away any rights to whatever they come up with, AS A CONDITION OF EMPLOYMENT. So IN MOST CASES, the creator has been separated from the results of his or her creativity. But the image of the sole-proprietor hacker is raised up as a shield by the software industry -- the public can take pity on the "defenseless" hacker; people don't take pity on a Microsoft or an IBM. After invoking the "harm to the individual" argument, Mr. Woodward later says the distinction between creator and financier doesn't matter -- the software sharer is showing disrespect for the person who put up the cash. ("They risked the money, they deserve the rewards.") Here we get to the heart of the matter -- we're really talking about the "rights" of software corporations here; not the hacker, not the consumer, and not society. Nowhere do I argue that the people who write software should not be compensated for their effort. Of course people should be compensated! The question is how, and how much. Paycheck dollars from a corporation, a university, a cooperative or the government all spend equally as well. But the social benefits from the programmer's efforts are constrained by forcing them through the legal contortions of intellectual property rights and private ownership. The model that we have been using is private speculation for private gain, made possible via exclusive monopolies granted by the government, enforced by law. I am saying that other successful models exist and have generated useful products. The subtext in the "I deserve a reward" argument is that someone who comes up with a really useful idea should get a special reward. Fine. I have no problem with public recognition of significant contribution, even including a cash award. Again, this doesn't _require_ intellectual property rights. Third, to repeat my original point, property rights are NOT required to ensure creative activity. Switzerland didn't have a patent system until 1907, and the Dutch abandoned a patent system from 1869 until 1912. George Barsalla, in _The Evolution of Technology_, argues that this did not retard their economic development or their "inventiveness." Both countries eventually adopted patent laws because of pressure from other industrial nations. Mr. Morgan says that "*companies* create for financial gain" (which I certainly agree with), but puts this forward as if the protection of *their* financial gain somehow justifies the rest of us having to suffer under intellectual property rights. Corporations are not necessary for the generation of the software we need. Harlan Cleveland, former diplomat and dean of the University of MN's HHHumphrey Institute of Public Affairs (I mean, he's a mainstream guy), wrote in an essay that appears in _Information Technologies and Social Transformation_ (published by the National Academy of Engineering): "Is the doctrine that information is owned by its originator (or compiler) necessary to make sure that Americans remain intellectually creative?" He answers in the negative, citing the healthy public sector R&D efforts in space exploration, environmental protection, weather forecasting and the control of infectious diseases as counter examples. He concludes the section with a warning. "The notion of information-as-property is built deep into our laws, our economy, and our political psyche... But we had better continue to develop our own ways, compatible with our own traditions, of rewarding intellectual labor without depending on laws and prohibitions that are disintegrating fast -- as the Volstead Act did in our earlier effort to enforce an unenforceable Prohibition." Fourth, the notion of a solitary inventor is a popular falsehood. No one creates in a vacuum. The programmer's skills and creativity rest upon past inventions and discoveries; publicly supported education; the other people who produced the hardware, the manuals and textbooks and the development tools; as well as the artists and accompanying infrastructure who may have inspired or influenced the programmer. In this sense, the developer's product is a social product, and consequently should redound to the benefit of all of society. The practical problem of compensation for effort and reward for outstanding achievement can be addressed outside of "intellectual property rights." Mr. Woodhead dismisses my position as "welfare for hackers." This is a rather cheap shot. First, there is nothing wrong with welfare. But Mr. Woodhead means "welfare for hackers" in a pejorative sense (he adds that he is being heavily sarcastic). No self-respecting hacker, Mr. Woodhead suggests, would accept something from the public or the government. "Any hacker worthy of the name would spurn it." What about every programmer who works for the government, obtains funding from the government (including the defense industry), all programmers who go through school and college (they're subsidized by the taxpayer), and all programmers who work in universities? Who's left? The public is already heavily involved in software production, but as is too often the case, the public finances something, and then turns it over to private corporations to reap all of the profits from it. The "welfare" charge also carries a divisive edge to it, implying that hackers should sneer at welfare. This is a self-defeating position for the programming community. There has been a mythology that programmers are a privileged lot, and immune from the vagaries of the overall economy. Sleeper, awake! All programmers should read the first chapter of Edward Yourdon's new book, _The Decline and Fall of the American Programmer_. He rings an alarm bell that big changes are underfoot in software production. As a current snapshot of the industry, here are some stats which I submitted to the current CPSR/Berkeley newsletter (available in its entirety from the CPSR listserver, listserv@gwuvm.gwu.edu): "40,000 jobs were lost in the electronics industry in the first quarter of this year (compared to 90,000 in all of 1991), including 9,100 jobs at computer component makers. For the first time since the American Electronics Association started reporting software industry figures, software job growth was flat, at 133,400 workers. Wang goes into Chapter 11, with 5,000 workers to be laid off over the next 30 days... Besides Wang, Digital Equipment cut 20,000 jobs over the past two years, and will cut another 15,000 this year; Data General now has 7,100 workers, down from a high of 17,000. Even computer services employment has been dropping, down 7.3% from its peak at the end of 1989. IBM now will probably cut 12,000 additional workers this year, on top of the 20,000 previously announced. (But profits are up at IBM!). Software maker Aldus is laying off 100 workers, the Disney Park Design Unit is laying off 400 imagineers..." (And I've submitted similar figures for the previous two quarterly newsletters as well.) The defense industry is expected to fire 1.2 _million_ people over the next four years, many of them highly skilled engineers. Programmers do get laid off. I know from personal experience. I was glad that there was unemployment insurance. No programmer should be so complacent as to say "it can't happen to me." So be glad that there is a safety net there, and keep it strong. Re: my point that intellectual property rights prevent intellectual effort, including software development, from maximizing its social benefit: If a copy of Lotus 1-2-3 does have use for people, and people are prevented from using it (e.g., because of the price barrier), then its potential benefit is constricted. (For an interesting discussion of this see Natalie Dandekar, "Moral Issues Involved in Protecting Software as Intellectual Property," _DIAC-90 Proceedings_, CPSR, Palo Alto, CA, 1990.) Mr. Woodhead claims that other users are hurt by the unauthorized sharing of software, because they end up paying more for the software. He is too charitable to the software companies. There is no reason to believe that, in the absence of unauthorized duplication, software prices would be reduced. The prime directive of capitalism is maximum profit. That is what pushes the price upwards. He imagines that there is a point at which the capitalist ("free-marketeer") is satiated and retires from the feeding frenzy out there in the market. Maybe on Mars. The capitalist can't say, I've made enough moolah, because he knows that others are also grabbing for the goods, and whoever gets the most wins, and drives the competition from the marketplace. His claim that the purported $24 billion in lost revenue would have been returned to the customer if the "pirates" didn't exist is absurd. What does come out of the pockets of consumers is the cost of financing legal battles between an Intel vs. AMD, or Apple vs. Microsoft, or Ashton-Tate (RIP) vs. Fox, over who exactly does own a design or an interface or a language (!). Mr. Woodhead says that no companies specialize in educational software. If this in fact is the case, then this only reinforces the argument for the necessity of some sort of social or public or community (or whatever you want to call it) funding of educational software development. Just because there is no "market" for quality educational software does not in any way mean that there is no _need_ for it. Woodhead blames the schools for sabotaging the educational market by unauthorized duplication -- this, I would suspect, is more the result of teachers trying to fulfill their professional commitment of educating children, in the face of deep cuts in education spending and the reluctance (or refusal) of vendors to negotiate affordable site licenses. (See e.g., the 9/92 issue of _MacWorld_ for more on this). A similar argument _against_ the market, and _for_ public participation in these matters is powerfully articulated in the work of Prof. Herbert Schiller (most recently in _Culture, Inc.: The Corporate Takeover of Public Expression_; for a briefer discussion see his article "Public Information Goes Corporate" which appeared in the October 1, 1991 issue of _Library Journal_). He quotes ( in _Culture, Inc._) a 1986 interview with the then president of database vendor DIALOG that appeared in _Information Today_: "We can't afford an investment in databases that are not going to earn their keep and pay back their development costs." When asked what areas were not paying their development costs, he answered, "Humanities." The tag line above the _LJ_ article says "a society is emerging in which only data with a commercial value will be collected." One can extend this to software -- only software with a commercial value will be commercially produced. Marginal markets will be ignored. Re: Mr. Morgan's notion of more aggressively extending patents to software: it's already taking place. I think this topic has been addressed thoroughly by the League for Programming Freedom in their "Against Software Patents" paper (available from league@prep.ai.mit.edu. The interested reader should also look at their "Against User Interface Copyright" paper). 17 years (typical for patents) is an eternity in the evolution of software (as is 10 or 20 years, as suggested by Mr. Morgan). As a sidenote, even the SPA has opposed software patents. Re: fair use -- the point I was trying to make is that the concept of "fair use" has EVOLVED and EXPANDED with increasing ability to easily duplicate various media. "Taping of television programs for personal use appears to have become accepted as fair use of copyright material. This is not in accord with the historical interpretation of fair use, since the programs are taped in their entirety. The use of the doctrine in the past has usually been restricted to copying portions of the work [for purposes of criticism, comment, research, etc.]. The rationale of the court must have been the unlikely efficacy of trying to put Pandora back into the box and the fact that no commercial use of the tapes was either alleged or documented." (Anne Branscomb, "Property Rights in Information", in _Information Technologies and Social Transformation_). The point is that legal constructs like "fair use" are not brought to us by Moses -- they are determined by the balance of social forces through legal, political, economic and other forms of struggle. And therefore they are something which we can affect. If the persistent reader has made it this far, allow me to conclude with a quote from an interview with Bruce Sterling that appeared in the Summer, 91 issue of the excellent and highly recommended print publication _Intertek_ ($8/year, check payable to Steve Steinberg, 325 Ellwood Beach, #3, Goleta, CA 93117; steve@cs.ucsb.edu): "I think that trying to commodify information -- trying to make it like buying a chair from Sears -- is just deeply misguided... It looks good on paper but as you go on year after year, trying to make it a reality, you find it just doesn't work. There are just too many people, like myself, who have very little respect for the idea of intellectual property. I don't pirate software, not because I believe that intellectual stuff is property, but just because I'm law-abiding. Information does want to be free -- it doesn't want to be $5 a baud. There's something stupid about that... I think we'll see a lot more commodification before we see less. But the idea of information as a commodity is just wrong. I mean, people say, 'if you could go into Sears and steal chairs they wouldn't stay in business.' Well if you had a device that could make infinite chairs for free, Sears would never have come into existence." Computer: Earl Grey tea. Hot. Downloaded From P-80 International Information Systems 304-744-2253