August 26, 2002
Is 10 years really that bad?
I've been following the interesting
blogversation between
Doc Searls,
Dave Winer,
Larry Lessig, and
Charles Cooper surrounding Larry's proposal to reduce the copyright of software to 10 years, and to hold source code in escrow so that it can be released after the 10 year copyright is over.
One point kept niggling at me, which was the proposition that Charles and Dave made that a 10 year copyright will seriously hurt small and independent software developers. Charles writes:
I can't think of a better prescription for formalizing the existing constellation of power that favors the Microsofts and Oracles over the small and independent developers.
At this juncture in the history of the software industry, more so than ever before, 10 years doesn't amount to a hill of JavaBeans--not when you're attempting to build up brand, distribution and customer loyalty in an increasingly fragmented and competitive market.
Dave Winer
puts it this way:
After giving it a bunch of thought, I think Lessig is going after the BigCo's, probably Microsoft. But he would also sacrifice the independent companies. If we have to publish our source code the users won't pay for it. Ten years isn't enough time to create a new market. So you wouldn't get any commercial innovation in this system. The BigCo's don't innovate.
Huh? I don't get it. I'm a software developer - I make my living through the creation of software, and all my experience and training tells me that these arguments just don't add up. As a thought experiment, ask yourself how many pieces of software are you using that are 10 years old? And when did you purchase that software? I can't think of a single example of software that generated revenue 10 years after it was written, unless you're talking about software for the Space Shuttle or some other old piece of hardware; and even then, that software will have bug fixes and new features, more likely than not - and that code will be covered by the 10 year copyright law as well.
Now ask yourself, how many old pieces of software would I love to have on my current desktop?
Hypercard, perhaps? Or how about all those old games for the
Atari or
Intellivision consoles? How many programmers would be able to learn and innovate on today's programming world if the source for those old non-revenue generating programs were part of the public domain? How many old data files would you be able to unlock if you were able to run that old DOS accounting program on your current desktop? What will happen 30 years from now when the MS Word file format is as anachronistic as a pile of
punch cards?
Larry Lessig has
written a response to Cooper's criticism, and I think he's dead on. Lessig quotes an
1829 precedent that shows that the founding fathers felt that copyright terms had to be "limited" so that creative works would pass into the public domain "at as early a period as possible":
Why? Because the framers were keen to have others build upon creative work, after copyright assured the "author" a sufficient return for his or her creativity. They believed, in other words, in a public domain, and they required that copyright terms be "limited" so that the public domain would flourish.
Lessig then builds a strong argument to show how his proposal would actually help small, creative, individual developers, and help reduce barriers to entry into large, established markets while still giving the copyright holder a 10 year head start on new competitors.
Dave Winer makes another argument, which I'll call the "supply vs. demand" argument:
If the customers placed a sufficiently high value on having access to source code, or if they felt our copyrights lasted too long, of course we would have to do what they want us to, or retire from the market. So the proponents of this plan are trying to legislate what they haven't been able to gain in the market. It's a weak position for that reason.
I disagree. There's never really been true power or representation by customers in the market for source code and long-term support contracts - it is just too small, fragmented, and uninformed, especially in the desktop computer space. Of course, big companies who make custom deals can get license terms changed, including access to source code, but we're not talking about a true level playing field in today's world. Heck, we've had companies
declared monopolies that still browbeat their customers with obnoxious clickwrap licenses and liability warranties that would be considered obscene if they were attached to a physical object like a car or a bridge. These actions are not signs of a healthy relationship between software developers and their customers. Software, like privacy, has always been a supply-side game - the only recourse a customer has is to not play, and in many cases, that is impossible or untenable.
In short, reducing software copyright to a reasonable term would have a very positive effect for the software market and for its customers. There would be an incentive to innovate, in order to keep opening up new markets and provide better and better code. And future generations of computer scientists (and historians) would thank us - with this code in the public domain, we could join the other sciences and
stand on the shoulders of giants, not
stand on each other's feet.
Posted by dsifry at August 26, 2002 10:38 PM
| TrackBack
| View blog reactions
A missing piece in this, pointed out elsewhere, is proprietary knowledge and trade secrets. It doesn't matter if your code is de facto copyrighted (i.e., by the nature of creation but not filed with the copyright office): if you maintain the code as part of your business logic and systems, it cannot be made freely available against your will.
I don't believe that the copyright expiration of Mickey Mouse, for instance, would compel the frozen body of Walt to issue forth all of Steamboat Willy. Nor would the expiration of Radio's initial copyright protection force Dave to provide, on demand, the source code or other paperwork associated.
Even when copyright expires, you own the work in question as an individual expression of work. If the work has ever appeared in a public forum, then that forum's expression of the work may pass into the public domain, but there's a trickier issue of whether there is a separate right inherent in the forum itself.
If Time magazine publishes non-copyrighted public domain photos, their reproduction of those photos can remain copyrighted for the duration of their protection. Not in all cases, of course, and a copyright expert would probably have a lot to say on this issue.
If I take Dover's edition of Jane Eyre and type it in, it's possible that their particular edited version of the text carries protection because of the work they did in assembling primary sources to create a unique document.
These issues apply directly to software protection: were Dave to publish his source code with impunity but state it was entirely copyrighted, he could sue anyone who used it as the basis of work. (This is part of that fruit of the poisoned tree argument, too.)
But if Dave publishes his source code, when copyright protection ends, ostensibly anyone with this instance of publication in their hands -- whether an archived Web site or paper output -- would have the ability to use it free of charge in some ways.
Trade secrecy voids Lessig's escrow idea, but the core of the argument is sound. The key to addressing Winer's worries is an attribute of existing copyright: if the item changes, it's a new work.
So you see © 1999, 2000, 2001, etc. on works. What seems to be 10-year old software which we use is not, often, actually 10 years old. It's been revised.
But you cannot argue about the length of copyright without first knowing what copyright is for. And, in the US at least, that is "to promote the progress of Science and the Useful Arts."
In a sense you're using software that's been in development for many years, the MT folks tapped into a thread of R&D, offered for free, by some very generous people who blazed the trail ahead of them (heh, a little bit of self praise, sorry).
I promise you that blogging software hasn't netted any cash for anyone so far, a small amount of revenue, but it seems likely that the gush of cash is going to come, if it ever does, right around the time Lessig would have our copyrights expire.
It's rare that a new market develops in less than ten years. Really. Now you may not be using the software when the ten year period comes up, but in Lessig's system where's the incentive to develop wholly new ideas? Why not just wait for some chump to do it. Wow think of the advantage that cloners get over the originators. What a trip.
Fact is, copyright is never going to be a good fit for software. Give it up and go back. The framers be damned. If you want software you have to make people happy who create the stuff.
Aside from that I don't *want* to give you all my source code. Don't my wishes count for anything? (Yeah of course they do, I'd like to see the enforcement system that Lessig proposes. Are they going to put me in jail if I don't give him my source?)
I liked it when lawyers used our software. With patents and all this michegas, it'll be easier to make pottery soon. That's what I plan to do. Seriously. I'm not going to make software for you guys if these are the rules.
Dave's back-to-reality paragraph:
"I liked it when lawyers used our software. With patents and all this michegas, it'll be easier to make pottery soon. That's what I plan to do. Seriously. I'm not going to make software for you guys if these are the rules."
Markets are made where supply meets demand. In this business, supply actually creates demand (did we feel a burning need for weblog software before its authors made it available?).
Dave speaks for the supply side here. I'll speak for the demand side: Get rid of everything that gets in the way of great sofware, and let the authors of that software work out a marketplace among themselves and their customers. You'll be surprised how well that will work out for everybody in the long run. Including the open source and free software guys, some of which will be making commercial software. It doesn't have to be an either/or thing.
Doc sez: "Get rid of everything that gets in the way of great sofware, and let the authors of that software work out a marketplace among themselves and their customers."
This plan differs from the present-day software market exactly how? It seems to me that people buy and sell software every day, all over the place. What new wrinkle do you actually have in mind?
"In a sense you're using software that's been in development for many years, the MT folks tapped into a thread of R&D, offered for free, by some very generous people who blazed the trail ahead of them (heh, a little bit of self praise, sorry)."
Just as those very generous people tapped into a thread of R&D, offered for free, ahead of them. It is irrelevant to copyright law, however, as the protection sought in the above instance is protected by patents and trade secrets.
"Fact is, copyright is never going to be a good fit for software. Give it up and go back. The framers be damned."
Copyright law isn't a good fit and most software companies are using EULAs (contract law) to restrict users far more than copyright law. See Microsoft's Front Page 2002 EULA wherein they restrict the end users' speech.
"Aside from that I don't *want* to give you all my source code. Don't my wishes count for anything? (Yeah of course they do, I'd like to see the enforcement system that Lessig proposes. Are they going to put me in jail if I don't give him my source?)"
They just won't give you a copyright.
"I liked it when lawyers used our software. With patents and all this michegas, it'll be easier to make pottery soon."
Lawyers don't make law, legislators do. Change the legislators, change the law. I will admit that it's much easier to make pottery than to change the law.
Dave said, "Fact is, copyright is never going to be a good fit for software. Give it up and go back."
Software is interesting because it has two elements, as has been mentioned before. _Roughly_ speaking, it has a written element, the source, and a usable element, the binary.
(Just for the sake of argument, assume that the line between the written and usable elements isn't blurry. Assume also that nobody is clamoring for your source code -- and that the Larrys (Lessig or Staton or Stooge) will correct my understanding of copyright at any time.)
What is it that copyright covers? It covers what you write.
How can we tell when something has infringed your copyright? Because you published.
Copyright is inherent in the act of creation, but enforcement flows from publishing. If you write and lock the work in your trunk, you have no defense when the Million Monkeys turn out your work along with Shakespeare's.
If you don't publish, your work is not protected -- by copyright. It may be protected by other things.
Software, being neither wholly speech, nor wholly usable, treads a narrow, winding course, partially protected by patents, partially by copyright, partially by trade secret status, partially by trademarks, partially by contract. If it is not speech, it can be wholly protected by patents. If it is not novel and usable, then it can be protected by copyright, but you need to publish. In both cases it can be protected by the other three.
Your source is a trade secret, covered by copyright but unprotected by it until you publish. The UserTalk scripts found in Frontier applications are covered by copyright and protected; in the comments attached you grant permission to use some of them. Your compiled programs are usable works, suitable as examples if you cared to file for a patent on your ideas, protected by trademark law and the clickwrap license that comes with them. Your ideas are protected from other people's patenting them because you wrote them down and published them.
The term must be "limited." Forget software for the moment, and focus entirely on copyright.
What's a suitable limit?
Bear in mind that it cannot be of indefinite duration, and that the limit must promote the useful arts and sciences, not commerce per se.
What's a suitable limit, and why is it a good one?
Now, why is that a bad limit?
Larry there's a big fallacy in your position. Lessig's idea is not law. It's not even remotely law.
I'm founder and CEO of Technorati. I was the cofounder and CTO of Sputnik and Linuxcare, founding board member of Linux International, and board member of AOTC. I've been around the block a few
times. Some might call me a serial entrepreneur. A more personal but less-updated site has more information about me - pictures, speeches, software, etc. You can contact me at david-blog@sifry.com.
