Changeset 822


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Timestamp:
Oct 3, 2006, 12:23:39 PM (15 years ago)
Author:
Александър Шопов
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Малко по-близо до XML.

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    99<!-- base href="http://firstmonday.org/issues/issue4_8/moglen/index.html" --><title>Anarchism Triumphant</title>
    10 
     10<!--
    1111<meta name="Description" content="This paper shows why free software, far from
    1212being a marginal participant in the commercial software market, is the
     
    3232
    3333</blockquote>
    34 
    35 <para></para>
    36 
    37 <hr>
    38 
    39 <para></para>
     34-->
    4035
    4136<blockquote>
    4237
    43 <para></para><center><ulink url="http://firstmonday.org/issues/issue4_8/moglen/index.html#author"><img src="anarchism_files/moglen.gif" alt="Anarchism Triumphant: Free Software and the Death of Copyright" border="0"></ulink></center><para></para>
     38<ulink url="http://firstmonday.org/issues/issue4_8/moglen/index.html#author"><!-- <img src="anarchism_files/moglen.gif" alt="Anarchism Triumphant: Free Software and the Death of Copyright" border="0">--> </ulink>
    4439<para>
    45 <i>The spread of the Linux operating system kernel has directed
     40<blockquote>
     41<para>The spread of the Linux operating system kernel has directed
    4642attention at the free software movement. This paper shows why free
    4743software, far from being a marginal participant in the commercial
    4844software market, is the vital first step in the withering away of the
    49 intellectual property system.</i>
     45intellectual property system.</para></blockquote>
    5046</para>
    51 <para></para><h2>Contents</h2><para></para>
     47<!-- Трябва да се генерира автоматично
     48<h2>Contents</h2>
    5249
    5350<para><a href="#m1">I. Software as Property: The Theoretical Paradox</a><br>
     
    5653<a href="#m4">IV. Their Lordships Die in the Dark?</a><br>
    5754<a href="#m5">Conclusion</a></para>
    58 
    59 <para><img src="anarchism_files/quad.gif"></para><a name="m1"></a>
    60 
    61 <para></para><h2>I. Software as Property: The Theoretical Paradox</h2><para></para>
    62 
    63 <para>S<small>OFTWARE</small>: no other word so thoroughly connotes the
     55-->
     56<section>
     57<title>I. Software as Property: The Theoretical Paradox</title>
     58
     59<para><emphasis>SOFTWARE</emphasis>: no other word so thoroughly connotes the
    6460practical and social effects of the digital revolution. Originally, the
    6561term was purely technical, and denoted the parts of a computer system
     
    7167"software" mostly denoted the expressions in more or less
    7268human-readable language that both described and controlled machine
    73 behavior [<a href="#note1">1</a>].</para>
     69behavior
     70<footnote>
     71<para>1. The distinction was only approximate in its
     72original context. By the late 1960's certain portions of the basic
     73operation of hardware were controlled by programs digitally encoded in
     74the electronics of computer equipment, not subject to change after the
     75units left the factory. Such symbolic but unmodifiable components were
     76known in the trade as "microcode," but it became conventional to refer
     77to them as "firmware." Softness, the term "firmware" demonstrated,
     78referred primarily to users' ability to alter symbols determining
     79machine behavior. As the digital revolution has resulted in the
     80widespread use of computers by technical incompetents, most traditional
     81software - application programs, operating systems, numerical control
     82instructions, and so fort - is, for most of its users, firmware. It may
     83be symbolic rather than electronic in its construction, but they
     84couldn't change it even if they wanted to, which they often -
     85impotently and resentfully - do. This "firming of software" is a
     86primary condition of the propertarian approach to the legal
     87organization of digital society, which is the subject of this paper.</para>
     88</footnote>
     89.</para>
    7490
    7591<para>That was then and this is now. Technology based on the manipulation
    7692of digitally-encoded information is now socially dominant in most
    77 aspects of human culture in the "developed" societies [<a href="#note2">2</a>].
     93aspects of human culture in the "developed" societies <footnote>
     94<para>2. Within the present generation, the very
     95conception of social "development" is shifting away from possession of
     96heavy industry based on the internal-combustion engine to
     97"post-industry" based on digital communications and the related
     98"knowledge-based" forms of economic activity.</para>
     99
     100</footnote>
     101
     102
     103
     104.
    78105The movement from analog to digital representation - in video, music,
    79106printing, telecommunications, and even choreography, religious worship,
     
    89116determines us. Our nurture is "software," establishes our cultural
    90117programming, which is our comparative freedom. And so on, for those
    91 reckless of blather [<a href="#note3">3</a>].
     118reckless of blather.
     119
     120<footnote>
     121<para>3. Actually, a moment's thought will reveal, our
     122genes are firmware. Evolution made the transition from analog to
     123digital before the fossil record begins. But we haven't possessed the
     124power of controlled direct modification. Until the day before
     125yesterday. In the next century the genes too will become software, and
     126while I don't discuss the issue further in this paper, the political
     127consequences of unfreedom of software in this context are even more
     128disturbing than they are with respect to cultural artifacts.</para>
     129</footnote>
    92130Thus "software" becomes a viable metaphor for all symbolic activity,
    93131apparently divorced from the technical context of the word's origin,
    94132despite the unease raised in the technically competent when the term is
    95133thus bandied about, eliding the conceptual significance of its
    96 derivation [<a href="#note4">4</a>].</para>
     134derivation.
     135
     136<footnote>
     137<para>4. <i>See, e.g.,</i> J. M. Balkin, 1998. <i>Cultural Software: a Theory of Ideology.</i> New Haven: Yale University Press.</para>
     138</footnote>
     139
     140</para>
    97141
    98142<para>But the widespread adoption of digital technology for use by those
     
    102146underneath our social skin. The movement from analog to digital is more
    103147important for the structure of social and legal relations than the more
    104 famous if less certain movement from status to contract [<a href="#note5">5</a>].
     148famous if less certain movement from status to contract
     149<footnote>
     150<para>5. <i>See</i> Henry Sumner Maine, 1861. <i>Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Idea.</i> First edition. London: J. Murray.</para>
     151
     152</footnote>
     153.
    105154This is bad news for those legal thinkers who do not understand it,
    106155which is why so much pretending to understand now goes so floridly on.
     
    111160familiar to legal theorists who haven't yet understood how to apply
    112161their traditional logic in this area - the trick won't work. This paper
    113 explains why [<a href="#note6">6</a>].</para>
     162explains why
     163<footnote>
     164<para>6. In general I dislike the intrusion of
     165autobiography into scholarship. But because it is here my sad duty and
     166great pleasure to challenge the qualifications or <i>bona fides</i> of
     167just about everyone, I must enable the assessment of my own. I was
     168first exposed to the craft of computer programming in 1971. I began
     169earning wages as a commercial programmer in 1973 - at the age of
     170thirteen - and did so, in a variety of computer services, engineering,
     171and multinational technology enterprises, until 1985. In 1975 I helped
     172write one of the first networked e-mail systems in the United States;
     173from 1979 I was engaged in research and development of advanced
     174computer programming languages at IBM. These activities made it
     175economically possible for me to study the arts of historical
     176scholarship and legal cunning. My wages were sufficient to pay my
     177tuitions, but not - to anticipate an argument that will be made by the
     178econodwarves further along - because my programs were the intellectual
     179property of my employer, but rather because they made the hardware my
     180employer sold work better. Most of what I wrote was effectively free
     181software, as we shall see. Although I subsequently made some
     182inconsiderable technical contributions to the actual free software
     183movement this paper describes, my primary activities on its behalf have
     184been legal: I have served for the past five years (without pay,
     185naturally) as general counsel of the Free Software Foundation.</para>
     186
     187</footnote>
     188
     189
     190.</para>
    114191
    115192<para>We need to begin by considering the technical essence of the
     
    120197measurements, taken 44,000 times per second, of frequency and amplitude
    121198in each of two audio channels. The player's primary output is analog
    122 audio signals [<a href="#note7">7</a>].
     199audio signals
     200<footnote>
     201<para>7. The player, of course, has secondary inputs
     202and outputs in control channels: buttons or infrared remote control are
     203input, and time and track display are output.</para>
     204</footnote>
     205
     206.
    123207Like
    124208everything else in the digital world, music as seen by a CD player is
     
    164248It wants you to know that I'm committing the mistake of confusing the
    165249embodiment with the intellectual property itself. It's not the number
    166 that's patented, stupid, just the Kamarkar algorithm. The number <i>can</i>
     250that's patented, stupid, just the Kamarkar algorithm. The number <emphasis>can</emphasis>
    167251be copyrighted, because copyright covers the expressive
    168252qualities of a particular tangible embodiment of an idea (in which some
     
    218302require judges to distinguish among the identical, the game is
    219303infinitely lengthy, infinitely costly, and almost infinitely offensive
    220 to the unbiased bystander [<a href="#note8">8</a>].</para>
     304to the unbiased bystander
     305<footnote>
     306
     307<para>8. This is not an insight unique to our present
     308enterprise. A closely-related idea forms one of the most important
     309principles in the history of Anglo-American law, perfectly put by Toby
     310Milsom in the following terms:</para>
     311<blockquote>The life of the common law has been in the abuse of
     312its elementary ideas. If the rules of property give what now seems an
     313unjust answer, try obligation; and equity has proved that from the
     314materials of
     315obligation you can counterfeit the phenomena of property. If the rules
     316of contract give what now seems an unjust answer, try tort. ... If the
     317rules of one tort, say deceit, give what now seems an unjust answer,
     318try another, try negligence. And so the legal world goes round.</blockquote>
     319
     320<para>S.F.C. Milsom, 1981. <i>Historical Foundations of the Common Law.</i> Second edition. London: Butterworths, p. 6.</para>
     321</footnote>
     322
     323
     324
     325.</para>
    221326
    222327<para>Thus parties can spend all the money they want on all the
     
    227332course, if later means two generations from now, the distribution of
    228333wealth and power sanctified in the meantime may not be reversible by
    229 any course less drastic than a <i>bellum servile</i>
     334any course less drastic than a <emphasis>bellum servile</emphasis>
    230335of couch potatoes against media magnates. So knowing that history isn't
    231336on Bill Gates' side isn't enough. We are predicting the future in a
     
    240345<para>When we reach this point in the argument, we find ourselves
    241346contending with the other primary protagonist of educated idiocy: the
    242 econodwarf. Like the IPdroid, the econodwarf is a species of hedgehog,[<a href="#note9">9</a>]
     347econodwarf. Like the IPdroid, the econodwarf is a species of hedgehog,
     348
     349<footnote>
     350<para>9. <i>See</i> Isaiah Berlin, 1953. <i>The Hedgehog and the Fox: An Essay on Tolstoy's View of History.</i> New York: Simon and Schuster.</para>
     351</footnote>
    243352but where the droid is committed to logic over experience, the
    244353econodwarf specializes in an energetic and well-focused but entirely
     
    258367seen, it is no longer really possible to distinguish computer programs
    259368from music performances, a word or two should be said. At least we can
    260 have the satisfaction of indulging in an argument <i>ad pygmeam</i>. When the econodwarf grows rich, in my experience, he attends the opera. But no matter how often he hears <i>Don Giovanni</i> it never occurs to him that Mozart's fate should, on his logic, have entirely discouraged Beethoven, or that we have <i>The Magic Flute</i> even though Mozart knew very well he wouldn't be paid. In fact, <i>The Magic Flute</i>, <i>St. Matthew's Passion</i>,
     369have the satisfaction of indulging in an argument <emphasis>ad pygmeam</emphasis>.
     370When the econodwarf grows rich, in my experience, he attends the opera.
     371But no matter how often he hears <emphasis>Don Giovanni</emphasis> it never occurs to
     372him that Mozart's fate should, on his logic, have entirely discouraged
     373Beethoven, or that we have <emphasis>The Magic Flute</emphasis> even though Mozart
     374knew very well he wouldn't be paid. In fact, <emphasis>The Magic Flute</emphasis>,
     375<emphasis>St. Matthew's Passion</emphasis>,
    261376and the motets of the wife-murderer Carlo Gesualdo are all part of the
    262377centuries-long tradition of free software, in the more general sense,
    263378which the econodwarf never quite acknowledges.</para>
    264 <center><img src="anarchism_files/mog1.gif"></center>
     379<!--<center><img src="anarchism_files/mog1.gif"></center> -->
    265380<para> The dwarf's basic problem is that "incentives" is merely a
    266381metaphor, and as a metaphor to describe human creative activity it's
    267 pretty crummy. I have said this before,[<a href="#note10">10</a>] but
     382pretty crummy. I have said this before,
     383<footnote>
     384<para>10. <i>See</i> <ulink url="http://emoglen.law.columbia.edu/my_pubs/nospeech.html">The
     385Virtual Scholar and Network Liberation.</a></para>
     386
     387</footnote>
     388but
    268389the better metaphor arose on the day Michael Faraday first noticed what
    269390happened when he wrapped a coil of wire around a magnet and spun the
     
    291412out that treating software as property makes bad software.</para>
    292413
    293 <para><img src="anarchism_files/quad.gif"></para><a name="m2"></a>
    294 
    295 <para></para><h2>II. Software as Property: The Practical Problem</h2><para></para>
     414</section>
     415<section>
     416<title>II. Software as Property: The Practical Problem</title>
    296417
    297418<para>In order to understand why turning software into property produces
     
    300421computers combines determinate reasoning with literary invention.</para>
    301422
    302 <para>At first glance, to be sure, source code appears to be a non-literary form of composition [<a href="#note11">11</a>].
     423<para>At first glance, to be sure, source code appears to be a non-literary form of composition
     424<footnote>
     425<para>11. Some basic vocabulary is essential. Digital
     426computers actually execute numerical instructions: bitstrings that
     427contain information in the "native" language created by the machine's
     428designers. This is usually referred to as "machine language." The
     429machine languages of hardware are designed for speed of execution at
     430the hardware level, and are not suitable for direct use by human
     431beings. So among the central components of a computer system are
     432"programming languages," which translate expressions convenient for
     433humans into machine language. The most common and relevant, but by no
     434means the only, form of computer language is a "compiler." The compiler
     435performs static translation, so that a file containing human-readable
     436instructions, known as "source code" results in the generation of one
     437or more files of executable machine language, known as "object code."</para>
     438
     439</footnote>
     440
     441
     442.
    303443The primary desideratum in a computer program is that it works, that is
    304444to say, performs according to specifications formally describing its
     
    374514or any other data type capable of some process called "multiplication,"
    375515to be undertaken by the computer on the basis of the context for the
    376 variables "A" and "B" at the moment of execution [<a href="#note12">12</a>].
     516variables "A" and "B" at the moment of execution
     517<footnote>
     518<para>12. This, I should say, was the path that most
     519of my research and development followed, largely in connection with a
     520language called APL ("A Programming Language") and its successors. It
     521was not, however, the ultimately-dominant approach, for reasons that
     522will be suggested below.</para>
     523</footnote>
     524.
    377525Because this
    378526approach resulted in extremely concise programs, it was thought, the
     
    385533mathematical concepts in English do more to confuse than to enlighten.</para>
    386534
    387 <para></para><h3>How We Created the Microbrain Mess</h3><para></para>
     535<h3>How We Created the Microbrain Mess</h3>
    388536
    389537<para>Thus the history of programming languages directly reflected the
     
    438586two important senses the best computer software in the world was free:
    439587it cost nothing to acquire, and the terms on which it was furnished
    440 both allowed and encouraged experimentation, change, and improvement [<a href="#note13">13</a>].
     588both allowed and encouraged experimentation, change, and improvement
     589<footnote>
     590<para>13. This description elides some details. By
     591the mid-1970's IBM had acquired meaningful competition in the mainframe
     592computer business, while the large-scale antitrust action brought
     593against it by the U.S. government prompted the decision to "unbundle,"
     594or charge separately, for software. In this less important sense,
     595software ceased to be free. But - without entering into the now-dead
     596but once-heated controversy over IBM's software pricing policies - the
     597unbundling revolution had less effect on the social practices of
     598software manufacture than might be supposed. As a fellow responsible
     599for technical improvement of one programming language product at IBM
     600from 1979 to 1984, for example, I was able to treat the product as
     601"almost free," that is, to discuss with users the changes they had
     602proposed or made in the programs, and to engage with them in
     603cooperative development of the product for the benefit of all users.</para>
     604
     605</footnote>
     606
     607
     608
     609.
    441610That the software in question was IBM's property under prevailing
    442611copyright law certainly established some theoretical limits on users'
     
    449618rights (in an image beloved of the United States Supreme Court), was
    450619practically unimportant, or even undesirable, at the heart of the
    451 software business [<a href="#note14">14</a>].</para>
     620software business
     621<footnote>
     622<para>14. This description is highly compressed, and
     623will seem both overly simplified and unduly rosy to those who also
     624worked in the industry during this period of its development. Copyright
     625protection of computer software was a controversial subject in the
     6261970's, leading to the famous CONTU commission and its mildly
     627pro-copyright recommendations of 1979. And IBM seemed far less
     628cooperative to its users at the time than this
     629sketch makes out. But the most important element is the contrast with
     630the world created by the PC, the Internet, and the dominance of
     631Microsoft, with the resulting impetus for the free software movement,
     632and I am here concentrating on the features that express that contrast.</para>
     633</footnote>
     634
     635.</para>
    452636
    453637<para>After 1980, everything was different. The world of mainframe
     
    522706towards creationism; in this instance, the problem is that BillG the
    523707Creator was far from infallible, and in fact he wasn't even trying.</para>
    524 <center><img src="anarchism_files/mog2.gif" hspace="0" vspace="0"></center>
     708<!--<center><img src="anarchism_files/mog2.gif" hspace="0" vspace="0"></center>-->
    525709<para>To make the irony more severe, the growth of the network rendered
    526710the non-propertarian alternative even more practical. What scholarly
     
    539723small band of programmers throughout the world mobilized by a single
    540724simple idea.</para>
    541 
    542 <para></para><h3>Software Wants to Be Free; or, How We Stopped Worrying and Learned to Love the Bomb</h3>
     725</section>
     726<section>
     727<title>Software Wants to Be Free; or, How We Stopped Worrying and Learned to Love the Bomb</title>
    543728
    544729<para>Long before the network of networks was a practical reality, even
     
    719904commercial competition, but when it came to making good software,
    720905anarchism won.</para>
    721 
    722 <para><img src="anarchism_files/quad.gif"></para><a name="m3"></a>
    723 
    724 <para></para><h2>III. Anarchism as a Mode of Production</h2><para></para>
     906</section>
     907<!--<para><img src="anarchism_files/quad.gif"></para><a name="m3"></a>-->
     908
     909<title>III. Anarchism as a Mode of Production</title>
    725910 
    726911<para>It's a pretty story, and if only the IPdroid and the econodwarf
     
    767952non-propertarian theory of the digital society?</para>
    768953
    769 <para></para><h3>The Legal Theory of Free Software</h3>
     954</section>
     955<section>
     956<title>The Legal Theory of Free Software</title>
    770957
    771958<para>There is a myth, like most myths partially founded on reality, that
     
    790977created more than Emacs, GDB, or GNU. He created the
    791978General Public License.</para>
    792 <center><img src="anarchism_files/mog3.gif" hspace="0" vspace="0"></center>
     979<!--  --><center><img src="anarchism_files/mog3.gif" hspace="0" vspace="0"></center> -->
    793980<para>The GPL,[<a href="#note24">24</a>] also known as the copyleft, uses
    794981copyright, to paraphrase Toby Milsom, to counterfeit the phenomena of
    795982anarchism. As the license preamble expresses it:</para>
    796983
    797 <para></para><blockquote>When we speak of free software, we are referring to
     984<blockquote>When we speak of free software, we are referring to
    798985freedom, not
    799986price. Our General Public Licenses are designed to make sure that you
     
    801988this service if you wish), that you receive source code or can get it
    802989if you want it, that you can change the software or use pieces of it in
    803 new free programs; and that you know you can do these things.</blockquote><para></para>
    804 
    805 <para></para><blockquote>To protect your rights, we need to make restrictions
     990new free programs; and that you know you can do these things.</blockquote>
     991
     992<blockquote>To protect your rights, we need to make restrictions
    806993that forbid
    807994anyone to deny you these rights or to ask you to surrender the rights.
    808995These restrictions translate to certain responsibilities for you if you
    809 distribute copies of the software, or if you modify it.</blockquote><para></para>
    810 
    811 <para></para><blockquote>For example, if you distribute copies of such a
     996distribute copies of the software, or if you modify it.</blockquote>
     997
     998<blockquote>For example, if you distribute copies of such a
    812999program, whether
    8131000gratis or for a fee, you must give the recipients all the rights that
    8141001you have. You must make sure that they, too, receive or can get the
    8151002source code. And you must show them these terms so they know their
    816 rights.</blockquote><para></para>
     1003rights.</blockquote>
    8171004
    8181005<para>Many variants of this basic free software idea have been expressed
     
    8211008respect. Section 2 of the license provides in pertinent part:</para>
    8221009
    823 <para></para><blockquote>You may modify your copy or copies of the Program or
     1010<blockquote>You may modify your copy or copies of the Program or
    8241011any portion of it, thus forming a work based on the Program, and copy
    8251012and distribute such modifications or work ..., provided that you also
    826 meet all of these conditions: </blockquote><para></para>
    827 
    828 <para></para><blockquote>...</blockquote><para></para>
    829 
    830 <para></para><blockquote>b) You must cause any work that you distribute or
     1013meet all of these conditions: </blockquote>
     1014
     1015<blockquote>...</blockquote>
     1016
     1017<blockquote>b) You must cause any work that you distribute or
    8311018publish, that in whole or in part contains or is derived from the
    8321019Program or any part thereof, to be licensed as a whole at no charge to
    833 all third parties under the terms of this License.</blockquote><para></para>
     1020all third parties under the terms of this License.</blockquote>
    8341021
    8351022<para>Section 2(b) of the GPL is sometimes called "restrictive," but its
     
    8491036of the Microsoft "Halloween" memorandum, Vinod Vallopillil, put it:</para>
    8501037
    851 <para></para><blockquote>The GPL and its aversion to code forking reassures
     1038<blockquote>The GPL and its aversion to code forking reassures
    8521039customers that they aren't riding an evolutionary `dead-end' by
    853 subscribing to a particular commercial version of Linux.</blockquote><para></para>
    854 
    855 <para></para><blockquote>The "evolutionary dead-end" is the core of the software FUD
    856 argument [<a href="#note25">25</a>].</blockquote><para></para>
     1040subscribing to a particular commercial version of Linux.</blockquote>
     1041
     1042<blockquote>The "evolutionary dead-end" is the core of the software FUD
     1043argument [<a href="#note25">25</a>].</blockquote>
    8571044
    8581045<para>Translated out of Microspeak, this means that the strategy by which
     
    9111098the droids, as we shall see. But first, we must pay our final devoirs
    9121099to the dwarves.</para>
    913 
    914 <para></para><h3>Because It's There: Faraday's Magnet and Human Creativity</h3><para></para>
     1100</section>
     1101<section>
     1102<title>Because It's There: Faraday's Magnet and Human Creativity</title>
    9151103
    9161104<para>After all, they deserve an answer. Why do people make free software
     
    9741162Microsoft Writing Style:</para>
    9751163
    976 <para></para><blockquote>A small number of Web sites and FAQs later, I found
     1164<blockquote>A small number of Web sites and FAQs later, I found
    9771165an FTP site with a Linux DHCP client. The DHCP client was developed by
    9781166an engineer employed by Fore Systems (as evidenced by his e-mail
    9791167address; I believe, however, that it was developed in his own free
    9801168time). A second set of documentation/manuals was written for the DHCP
    981 client by a hacker in <i>Hungary</i> which provided relatively simple instructions on how to install/load the client.</blockquote><para></para>
    982 
    983 <para></para><blockquote>I downloaded &amp; uncompressed the client and typed two
    984 simple commands:</blockquote><para></para>
    985 
    986 <para></para><blockquote>Make - compiles the client binaries</blockquote><para></para>
    987 
    988 <para></para><blockquote>Make Install -installed the binaries as a Linux Daemon</blockquote><para></para>
    989 
    990 <para></para><blockquote>Typing "DHCPCD" (for DHCP Client Daemon) on the
     1169client by a hacker in <i>Hungary</i> which provided relatively simple instructions on how to install/load the client.</blockquote>
     1170
     1171<blockquote>I downloaded &amp; uncompressed the client and typed two
     1172simple commands:</blockquote>
     1173
     1174<blockquote>Make - compiles the client binaries</blockquote>
     1175
     1176<blockquote>Make Install -installed the binaries as a Linux Daemon</blockquote>
     1177
     1178<blockquote>Typing "DHCPCD" (for DHCP Client Daemon) on the
    9911179command line triggered the DHCP discovery process and voila, I had IP
    9921180networking running.
    993 </blockquote><para></para>
    994 
    995 <para></para><blockquote>Since I had just downloaded the DHCP client code, on
     1181</blockquote>
     1182
     1183<blockquote>Since I had just downloaded the DHCP client code, on
    9961184an impulse I played around a bit. Although the client wasn't as
    9971185extensible as the DHCP client we are shipping in NT5 (for example, it
    9981186won't query for arbitrary options &amp; store results), it was obvious
    9991187how I could write the additional code to implement this functionality.
    1000 The full client consisted of about 2,600 lines of code.</blockquote><para></para>
    1001 
    1002 <para></para><blockquote>One example of esoteric, extended functionality that
     1188The full client consisted of about 2,600 lines of code.</blockquote>
     1189
     1190<blockquote>One example of esoteric, extended functionality that
    10031191was clearly
    10041192patched in by a third party was a set of routines to that would pad the
    10051193DHCP request with host-specific strings required by Cable Modem / ADSL
    1006 sites.</blockquote><para></para>
    1007 
    1008 <para></para><blockquote>A few other steps were required to configure the
     1194sites.</blockquote>
     1195
     1196<blockquote>A few other steps were required to configure the
    10091197DHCP client to
    10101198auto-start and auto-configure my Ethernet interface on boot but these
    10111199were documented in the client code and in the DHCP documentation from
    1012 the Hungarian developer.</blockquote><para></para>
    1013 
    1014 <para></para><blockquote>I'm a poorly skilled UNIX programmer but it was
     1200the Hungarian developer.</blockquote>
     1201
     1202<blockquote>I'm a poorly skilled UNIX programmer but it was
    10151203immediately obvious to me how to incrementally extend the DHCP client
    1016 code (the feeling was exhilarating and addictive).</blockquote><para></para>
    1017 
    1018 <para></para><blockquote>Additionally, due directly to GPL + having the full
     1204code (the feeling was exhilarating and addictive).</blockquote>
     1205
     1206<blockquote>Additionally, due directly to GPL + having the full
    10191207development
    10201208environment in front of me, I was in a position where I could write up
     
    10221210how things like this would get done in NT). Engaging in that process
    10231211would have prepared me for a larger, more ambitious Linux project in
    1024 the future [<a href="#note29">29</a>].</blockquote><para></para>
     1212the future [<a href="#note29">29</a>].</blockquote>
    10251213
    10261214<para>"The feeling was exhilarating and addictive." Stop the presses:
     
    10331221achievable in his day job working for the Greatest Programming Company
    10341222on Earth. If only he had e-mailed that first addictive fix, who knows
    1035 where he'd be now?</para><para>
    1036 
    1037 </para><para>So, in the end, my dwarvish friends, it's just a human thing.
     1223where he'd be now?</para>
     1224
     1225<para>So, in the end, my dwarvish friends, it's just a human thing.
    10381226Rather like why Figaro sings, why Mozart wrote the music for him to
    10391227sing to, and why we all make up new words: Because we can. Homo ludens,
     
    10431231interfere. Repeat after me, ye dwarves and men: Resist
    10441232the resistance!</para>
    1045 
    1046 <para><img src="anarchism_files/quad.gif"></para><a name="m4"></a>
    1047 
    1048 <para></para><h2>IV. Their Lordships Die in the Dark?</h2><para></para>
     1233</section>
     1234<!--<para><img src="anarchism_files/quad.gif"></para><a name="m4"></a>-->
     1235
     1236<section>
     1237<title>IV. Their Lordships Die in the Dark?</title>
    10491238
    10501239<para>For the IPdroid, fresh off the plane from a week at Bellagio paid for by Dreamworks SKG, it's enough to cause indigestion.</para>
     
    11531342Aristocracy looks hard to beat, but that's how it looked in 1788 and
    115413431913 too. It is, as Chou En-Lai said about the meaning of the French
    1155 Revolution, too soon to tell.</para> <para>
    1156 
    1157 </para><para></para><h2>About the Author</h2><para></para>
    1158 
    1159 <para>Eben Moglen is Professor of Law &amp; Legal History, Columbia Law School.<br>
     1344Revolution, too soon to tell.</para>
     1345</section>
     1346<section>
     1347<title>About the Author</title>
     1348
     1349<para>Eben Moglen is Professor of Law &amp; Legal History, Columbia Law School.
    11601350E-mail: <a href="mailto:moglen@columbia.edu">Mail: moglen@columbia.edu</a></para>
    11611351
    1162 <para></para><h2>Acknowledgments</h2><para></para>
     1352<h2>Acknowledgments</h2>
    11631353
    11641354<para>This paper was prepared for delivery at the Buchmann International
     
    11701360possible.</para>
    11711361 
    1172 <para></para><h2>Notes</h2><para></para>
    1173 
    1174 <para><a name="note1"></a>1. The distinction was only approximate in its
    1175 original context. By the late 1960's certain portions of the basic
    1176 operation of hardware were controlled by programs digitally encoded in
    1177 the electronics of computer equipment, not subject to change after the
    1178 units left the factory. Such symbolic but unmodifiable components were
    1179 known in the trade as "microcode," but it became conventional to refer
    1180 to them as "firmware." Softness, the term "firmware" demonstrated,
    1181 referred primarily to users' ability to alter symbols determining
    1182 machine behavior. As the digital revolution has resulted in the
    1183 widespread use of computers by technical incompetents, most traditional
    1184 software - application programs, operating systems, numerical control
    1185 instructions, and so fort - is, for most of its users, firmware. It may
    1186 be symbolic rather than electronic in its construction, but they
    1187 couldn't change it even if they wanted to, which they often -
    1188 impotently and resentfully - do. This "firming of software" is a
    1189 primary condition of the propertarian approach to the legal
    1190 organization of digital society, which is the subject of this paper.</para>
    1191 
    1192 <para><a name="note2"></a>2. Within the present generation, the very
    1193 conception of social "development" is shifting away from possession of
    1194 heavy industry based on the internal-combustion engine to
    1195 "post-industry" based on digital communications and the related
    1196 "knowledge-based" forms of economic activity.</para>
    1197 
    1198 <para><a name="note3"></a>3. Actually, a moment's thought will reveal, our
    1199 genes are firmware. Evolution made the transition from analog to
    1200 digital before the fossil record begins. But we haven't possessed the
    1201 power of controlled direct modification. Until the day before
    1202 yesterday. In the next century the genes too will become software, and
    1203 while I don't discuss the issue further in this paper, the political
    1204 consequences of unfreedom of software in this context are even more
    1205 disturbing than they are with respect to cultural artifacts.</para>
    1206 
    1207 <para><a name="note4"></a>4. <i>See, e.g.,</i> J. M. Balkin, 1998. <i>Cultural Software: a Theory of Ideology.</i> New Haven: Yale University Press.</para>
    1208 
    1209 <para><a name="note5"></a>5. <i>See</i> Henry Sumner Maine, 1861. <i>Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Idea.</i> First edition. London: J. Murray.</para>
    1210 
    1211 <para><a name="note6"></a>6. In general I dislike the intrusion of
    1212 autobiography into scholarship. But because it is here my sad duty and
    1213 great pleasure to challenge the qualifications or <i>bona fides</i> of
    1214 just about everyone, I must enable the assessment of my own. I was
    1215 first exposed to the craft of computer programming in 1971. I began
    1216 earning wages as a commercial programmer in 1973 - at the age of
    1217 thirteen - and did so, in a variety of computer services, engineering,
    1218 and multinational technology enterprises, until 1985. In 1975 I helped
    1219 write one of the first networked e-mail systems in the United States;
    1220 from 1979 I was engaged in research and development of advanced
    1221 computer programming languages at IBM. These activities made it
    1222 economically possible for me to study the arts of historical
    1223 scholarship and legal cunning. My wages were sufficient to pay my
    1224 tuitions, but not - to anticipate an argument that will be made by the
    1225 econodwarves further along - because my programs were the intellectual
    1226 property of my employer, but rather because they made the hardware my
    1227 employer sold work better. Most of what I wrote was effectively free
    1228 software, as we shall see. Although I subsequently made some
    1229 inconsiderable technical contributions to the actual free software
    1230 movement this paper describes, my primary activities on its behalf have
    1231 been legal: I have served for the past five years (without pay,
    1232 naturally) as general counsel of the Free Software Foundation.</para>
    1233 
    1234 <para><a name="note7"></a>7. The player, of course, has secondary inputs
    1235 and outputs in control channels: buttons or infrared remote control are
    1236 input, and time and track display are output.</para>
    1237 
    1238 <para><a name="note8"></a>8. This is not an insight unique to our present
    1239 enterprise. A closely-related idea forms one of the most important
    1240 principles in the history of Anglo-American law, perfectly put by Toby
    1241 Milsom in the following terms:</para>
    1242 
    1243 <para></para><blockquote>The life of the common law has been in the abuse of
    1244 its elementary ideas. If the rules of property give what now seems an
    1245 unjust answer, try obligation; and equity has proved that from the
    1246 materials of
    1247 obligation you can counterfeit the phenomena of property. If the rules
    1248 of contract give what now seems an unjust answer, try tort. ... If the
    1249 rules of one tort, say deceit, give what now seems an unjust answer,
    1250 try another, try negligence. And so the legal world goes round.</blockquote><para></para>
    1251 
    1252 <para>S.F.C. Milsom, 1981. <i>Historical Foundations of the Common Law.</i> Second edition. London: Butterworths, p. 6.</para>
    1253 
    1254 <para><a name="note9"></a>9. <i>See</i> Isaiah Berlin, 1953. <i>The Hedgehog and the Fox: An Essay on Tolstoy's View of History.</i> New York: Simon and Schuster.</para>
    1255 
    1256 <para><a name="note10"></a>10. <i>See</i> <ulink url="http://emoglen.law.columbia.edu/my_pubs/nospeech.html">The
    1257 Virtual Scholar and Network Liberation.</a></para>
    1258 
    1259 <para><a name="note11"></a>11. Some basic vocabulary is essential. Digital
    1260 computers actually execute numerical instructions: bitstrings that
    1261 contain information in the "native" language created by the machine's
    1262 designers. This is usually referred to as "machine language." The
    1263 machine languages of hardware are designed for speed of execution at
    1264 the hardware level, and are not suitable for direct use by human
    1265 beings. So among the central components of a computer system are
    1266 "programming languages," which translate expressions convenient for
    1267 humans into machine language. The most common and relevant, but by no
    1268 means the only, form of computer language is a "compiler." The compiler
    1269 performs static translation, so that a file containing human-readable
    1270 instructions, known as "source code" results in the generation of one
    1271 or more files of executable machine language, known as "object code."</para>
    1272 
    1273 <para><a name="note12"></a>12. This, I should say, was the path that most
    1274 of my research and development followed, largely in connection with a
    1275 language called APL ("A Programming Language") and its successors. It
    1276 was not, however, the ultimately-dominant approach, for reasons that
    1277 will be suggested below.</para>
    1278 
    1279 <para><a name="note13"></a>13. This description elides some details. By
    1280 the mid-1970's IBM had acquired meaningful competition in the mainframe
    1281 computer business, while the large-scale antitrust action brought
    1282 against it by the U.S. government prompted the decision to "unbundle,"
    1283 or charge separately, for software. In this less important sense,
    1284 software ceased to be free. But - without entering into the now-dead
    1285 but once-heated controversy over IBM's software pricing policies - the
    1286 unbundling revolution had less effect on the social practices of
    1287 software manufacture than might be supposed. As a fellow responsible
    1288 for technical improvement of one programming language product at IBM
    1289 from 1979 to 1984, for example, I was able to treat the product as
    1290 "almost free," that is, to discuss with users the changes they had
    1291 proposed or made in the programs, and to engage with them in
    1292 cooperative development of the product for the benefit of all users.</para>
    1293 
    1294 <para><a name="note14"></a>14. This description is highly compressed, and
    1295 will seem both overly simplified and unduly rosy to those who also
    1296 worked in the industry during this period of its development. Copyright
    1297 protection of computer software was a controversial subject in the
    1298 1970's, leading to the famous CONTU commission and its mildly
    1299 pro-copyright recommendations of 1979. And IBM seemed far less
    1300 cooperative to its users at the time than this
    1301 sketch makes out. But the most important element is the contrast with
    1302 the world created by the PC, the Internet, and the dominance of
    1303 Microsoft, with the resulting impetus for the free software movement,
    1304 and I am here concentrating on the features that express that contrast.</para>
     1362<h2>Notes</h2>
     1363
     1364
     1365
     1366
     1367
     1368
     1369
     1370
     1371
     1372
     1373
     1374
     1375
     1376
     1377
     1378
     1379
     1380
     1381
     1382
     1383
     1384
     1385
     1386
     1387
     1388
     1389
     1390
     1391
    13051392
    13061393<para><a name="note15"></a>15. I discuss the importance of PC software in this
     
    13931480</blockquote>
    13941481
    1395 <para></para><hr><para>
     1482<hr><para>
    13961483
    13971484</para><blockquote>
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