Date: Mon, 28 Sep 92 10:10:41 EDT
From: morgan@ENGR.UKY.EDU(Wes Morgan)
Subject: File 1--Wes Morgan's on J Davis & Piracy (Re: CuD 4.46)

In CuD #4.46, Jim Davis writes:

>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.

Agreed, but that doesn't really change my arguments very much.

>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.

Isn't this true of almost any commercial concern?  Toyota engineers
sign away their rights to the design of the 1993 Camry, and contribu-
ting editors sign away their rights to their editorials in the Lexington
Herald-Leader (if printed, unsigned, as the opinion of the paper).  Yet,
these individuals still profit from their work; the engineers will receive
raises/bonuses if their designs are commercially successful, and the editors
of the Herald-Leader receive greater compensation if the paper's subscrip-
tions increase.  What's the difference?

>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.

It isn't a question of "pity", nor have I advanced it as such.

My argument is very simple.  You do not have the moral, ethical, or legal
right to take someone else's explicit design (be it computer software, a
piece of sculpture, or a 1993 Camry), duplicate it, and give the copies away.

>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.

So, the people who constitute a corporation are now in a separate class?

>Nowhere do I argue that the people who write software should not be
>compensated for their effort. Of course people should be compensated!

You say that people should be compensated, yet you wish to remove their
largest/best-protected source of compensation -- contract royalties from
legitimate purchases.

>The question is how, and how much.

"how much"?  This almost sounds like a thinly disguised slam on software
prices........

>Paycheck dollars from a
>corporation, a university, a cooperative or the government all spend
>equally as well.

Of course, one's paycheck is usually proportional to the success of
one's efforts.  I can't imagine anyone increasing an employee's pay
for "good societal benefits" of their work (with the exception of
the fine people in the social work careers, of course....).

>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.

If the programmer (or corporation) wants to reap social benefits, they'll
place the program in the public domain (or provide 'student editions', or
educational pricing, etc.).  It's *their* choice, not yours.

>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.

Many such models exist; however, you would force everyone into the same
model.  Neither of us can dictate models to the developer.

>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.

I can see it now -- "You've written a wonderful program!  Here's a one-
time cash award of $XXXX, and we're going to spread your program around
the world, let other people use it to make more money, and you won't reap
any further benefit from it."

>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.

Let's try a parallel (this usually degenerates into a flamefest, but...):

   - You (Mr. Davis) write a book entitled "Intellectual Property in the
     Information Age"
   - Prentice-Hall, in their wisdom, deems it worthy; a First Edition is
     prepared, published, and placed on sale.
   - I purchase one copy, duplicate it 500 times, and distribute it to
     a conference *without your permission*.
   - Your book is included in the conference Proceedings, and is made
     available to the public; again, neither you nor PH recognize any
     compensation.

Can you honestly say that neither you nor Prentice-Hall will be concerned?

I have found that many people (NOT, necessarily, Mr. Davis) who argue against
intellectual property rights have never been in a position to earn compensation
from their personal work(s).  I have been in such a position, and it definitely
changes one's opinions.  (While my experience in this area does not lie within
the realm of computer software, I believe that my experience is valid.)

>Corporations are not necessary for the
>generation of the software we need.

That's well and good; you (and anyone else) is quite free to design,
implement, test, debug, document, and distribute any software you wish.

>Harlan Cleveland, .....wrote.....:
>"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.

Hmmm....."space exploration" == "NASA"
         "environmental protection" == "EPA"
    "weather forecasting" == "NOAA"
    "infectious diseases" == "PHS/HHS/CDC"

"public sector" seems to melt into "government agencies".  If you (or
Mr. Cleveland) can provide examples of such work which are outside the
governmental realm, I'd like to know about it.  Of course, a great deal
of university research takes place under government grants; we might
even argue that universities are another arm of the government in this
respect.

I'm not familiar with any large-scale research which is truly in the
"public sector".

>Fourth, the notion of a solitary inventor is a popular falsehood.  No
>one creates in a vacuum.

Agreed.

>The programmer's skills and creativity rest
>upon past inventions and discoveries;

This is true of almost any invention, discovery, or creation; would you
apply your arguments to cars, calculators, or novels?  Heck, most musical
compositions are based on the ancient notions of scales, keys, and modes;
would you throw *all* music into the public domain, too?

>publicly supported education;

It is quite possible to complete one's education without setting foot
in a "publicly supported" school.

>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.

You're absolutely correct, but it's still the programmer's invention
that made it possible.

>In
>this sense, the developer's product is a social product, and
>consequently should redound to the benefit of all of society.

Again, are you willing to apply this notion to *every* invention,
development, or creation?  I still don't believe that computer
software is inherently different from any other medium.

>The
>practical problem of compensation for effort and reward for
>outstanding achievement can be addressed outside of "intellectual
>property rights."

I'd like to see some concrete ideas about the implementation of this
"compensation....and reward".  You've mentioned it several times, but
you haven't presented any practical implementations.

>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.

1) The "public" doesn't have to "turn it over" to the private sector.

2) Most programmers who develop something on their own (as opposed to
   "staff programmers" at a software company) usually recognize compen-
   sation in either lump-sum payment(s), increased salaries, or royalties.

3) If I decide to market my own software product, haven't I just become
   one of your much-villified "private corporations"?

>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.

You didn't address my mention of "public access" computing sites, such
as those found in many schools and public libraries.  It would seem that
this growing "public access" facility would render your "price barrier"
irrelevant.

>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 go ahead and say "government funding"; you've been hinting around
the phrase for several paragraphs.

>Re: Mr. Morgan's notion of more aggressively extending patents to
>software: it's already taking place.

Good; I'll look at the references you mentioned.

>17 years (typical for
>patents) is an eternity in the evolution of software (as is 10 or 20
>years, as suggested by Mr. Morgan).

OK, let's change it to 5; we're speaking rhetorically, right?  8)

>As a sidenote, even the SPA has
>opposed software patents.

Of course they oppose it!  It cuts into their profits!  I've never
said that current pricing is fair.......

>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.

How, exactly, has it "evolved and expanded"?

>"Taping of television programs for personal
>use appears to have become accepted as fair use of copyright material.

"appears to have"?  It was explicitly affirmed in several court decisions.

>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."

Bingo!  The "personal use" factor was a determinant in each decision.
You'll notice that the courts did NOT affirm any redistribution rights,
either for-profit or for free.....

>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.

Agreed!

I would enthusiastically support a "free for educational purposes" waiver of
licensing.  I'm the Systems Administrator for the UK College of Engineering;
we spend a great deal of money on licenses, and some vendors have my undying
gratitude (Swanson Analysis, MathWorks, and CADKEY, are you listening?).

Let me ask you a simple question:

You have championed (and rightfully so) the cause of "educational computing";
you've used education as a bulwark of your arguments.  However, would you
voluntarily restrict your use of "free software" to educational purposes?
If WordPerfect gave you 10 copies for your class, would you use it to write
your next book?  Would you sell that book?

>From: peter@FICC.FERRANTI.COM(Peter da Silva)
>Subject--File 2--Response to Davis/Piracy (1)
>
>Re: Wes Morgan's article in CuD #4.43
>
>I largely agree with most of his arguments, but I would like to point
>out one mistake... he says:
>
>  "The whole concept of copyrights ... is based on the notion
>   that the creator ... is entitled to some compensation for his
>   effort"
>
>This is just not true. The whole concept of copyrights and patents in
>the United States is based on the notion that by making intellectual
>property a salable commodity subject to market forces, more and better
>intellectual property will be created and it will be distributed more
>freely.

Absolutely!  I think we said the same thing; I just didn't extend my
statement far enough.  (My statement was based on my experience in
more "artistic" fields, namely music; the market forces Peter mentions
are less dominant in that field.)

Thanks for clarifying, Peter.

>And, you know what, it works. There's no better refutation, nor need
>there be a better refutation, of the argument that piracy promotes
>openness. It doesn't. It promotes encrypted software, dongles, and
>trade secrets. It discourages publication. It reduces the incentive to
>create viable products of commercial quality. These are not the result
>of intellectual property laws, they're the result of the failure to
>enforce intellectual property laws.

Breakaway!  Shot!  Goal!

Well said.

>From: "Michael Stack" <stack@STARNINE.COM>
>Subject--File 3--Response to Davis/Piracy (2)
>
>They both seem to view copyright and
>patents as a system guaranteeing a right to profit overlooking the
>original constitutional intent to "promote the progress of Science and
>the useful Arts."

Here's the relevant citation:

[Article I, Section 8, US Constitution]

...To promote the progress of science and useful arts, by securing for
   limited times to authors and inventors the exclusive right to their
   respective writings and discoveries;

We may argue that the current implementation of copyrights and patents
is in need of overhaul/modification, but you cannot evade the Constitutional
"exclusive right" for inventors and authors.

I'd also argue that the very presence of hundreds of software companies
validates the "progress of science and useful arts"; I receive informa-
tion on new software releases on an almost-daily basis.

>To be able to accuse someone of stealing or to claim something
>as property (and to subsequently grant licenses on how this property
>is to be used) implies there exists rights of ownership in the first
>place.   The crux of Mr. Davis's article questions this right.  The
>respondents by-pass this altogether.

I didn't bypass it at all; in fact, my entire argument is based on
the premise of "I made it, and it's mine!".  8)

>Their articles are but
>explanations of the existing order in case we didn't already
>understand.

The "existing order" is entirely Constitutional.  Mr. Davis' questions
bypass the Constitutional provisions of "exclusive rights" for creations
and inventions.  Would you support a Constitutional amendment to revoke
those "exclusive rights"?

Keep in mind that any such action would invalidate *all* trademarks,
copyrights, and patents.  None of the parties in this discussion have
provided justification for applying different standards to computer
software, so it's in the same boat as any other "writings and discoveries".

>The fact that "alls not well in the state of Denmark"
>in itself punches large holes in the system the two respondents
>defend.

>Both belittle the spectre of "police state" raised by Mr. Davis.
>Amazingly, this is done within the pages of a publication which has
>spotlighted many instances of "police-state" behavior: doors
>kicked-in in the early hours of morning, guns drawn, threats,
>equipment confiscated (permanently?), "guilty till proved innocent,"
>etc.

I didn't "belittle" the police-state notion at all!

Of course, those are matters of criminal law, not copyright infringement.
I have yet to hear mention of such a "police state" approach to copyrights.

>--On the one hand you argue "If I pour 4 years of my life into the
>development of SnarkleFlex, I DESERVE to profit from it"  but then you
>append a caveat which undoes this assertion "(assuming that people
>want to purchase/use it)."  Doesn't this condition make your
>capitalized assertion self-destruct?

How about "I deserve the OPPORTUNITY to profit from it"?

>Do you deserve to be rewarded
>for your work, yes or no,  or is it to be let dependent on market
>caprice?

Market caprice, absolutely!  That's the basis for ANYONE's living; one
must provide a service (or goods) which people need or want.  If there
is no market for your skills, you get to find another job.  That's self-
determination.

>--You ask "Would you make a copy of Webster's Dictionary and give it
>to a friend?" and you sport(!) "Xerox(tm)[ing] your entire printed
>library for me..." "...would be just fine, right?"  Yes, it would --
>if the library and dictionary were in a readily distributable form and
>the copy cost me near nothing i.e. in digital form.  I'd be happy to
>give you a copy.   I could give it to anyone.  As to how I'd have a
>library in the first place we can discuss (perhaps outside of this
>forum).

"how I'd have a library......we can discuss.....outside of this forum"?

Oh, my!  Let's translate this a bit.....

   "Sure, I'll give you a copy; just don't ask where I got it."

>Michael Goldhaber in his book Reinventing Technology states "Since new
>information technology includes easy ways of reproducing information,
>the existence of these [intellectual property] laws effectively
>curtail the widest possible spread of this new form of wealth."

Your alternative is anarchic, is it not?  I'll ask you a simple question,
one for which no one has provided a suitable answer:

   If I choose to make my living as a software author (either "on
   my own" or as part of a company/corporation), how will your
   proposed "freedom of information" help me earn a living?  Will
   it, in fact, hinder me in earning a living?

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