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r822 r827 34 34 --> 35 35 36 <blockquote>37 36 38 37 <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> 39 <para> 40 < blockquote>41 <para>The spread of the Linux operating system kernel has directed 42 attention at the free software movement. This paper shows why free 43 software, far from being a marginal participant in the commercial 44 software market, is the vital first step in the withering away of the 45 intellectual property system.</para></blockquote>46 </para> 38 39 <para><blockquote> <para>The spread of the Linux operating system 40 kernel has directed attention at the free software movement. This 41 paper shows why free software, far from being a marginal participant 42 in the commercial software market, is the vital first step in the 43 withering away of the intellectual property 44 system.</para></blockquote> </para> 45 47 46 <!-- Трябва да се генерира автоматично 48 47 <h2>Contents</h2> … … 57 56 <title>I. Software as Property: The Theoretical Paradox</title> 58 57 59 <para><emphasis>SOFTWARE</emphasis>: no other word so thoroughly connotes the60 practical and social effects of the digital revolution. Originally, the 61 term was purely technical, and denoted the parts of a computer system 62 that, unlike "hardware," which was unchangeably manufactured in system 63 electronics, could be altered freely. The first software amounted to 64 the plug configuration of cables or 65 switches on the outside panels of an electronic device, but as soon as 66 linguistic means of altering computer behavior had been developed, 67 "software" mostly denoted the expressions in more or less58 <para><emphasis>SOFTWARE</emphasis>: no other word so thoroughly 59 connotes the practical and social effects of the digital 60 revolution. Originally, the term was purely technical, and denoted the 61 parts of a computer system that, unlike "hardware," which was 62 unchangeably manufactured in system electronics, could be altered 63 freely. The first software amounted to the plug configuration of 64 cables or switches on the outside panels of an electronic device, but 65 as soon as linguistic means of altering computer behavior had been 66 developed, "software" mostly denoted the expressions in more or less 68 67 human-readable language that both described and controlled machine 69 behavior 70 <footnote> 71 <para>1. The distinction was only approximate in its 72 original context. By the late 1960's certain portions of the basic 68 behavior <footnote> <para>1. The distinction was only approximate in 69 its original context. By the late 1960's certain portions of the basic 73 70 operation of hardware were controlled by programs digitally encoded in 74 71 the electronics of computer equipment, not subject to change after the … … 78 75 referred primarily to users' ability to alter symbols determining 79 76 machine behavior. As the digital revolution has resulted in the 80 widespread use of computers by technical incompetents, most traditional 81 software - application programs, operating systems, numerical control 82 instructions, and so fort - is, for most of its users, firmware. It may 83 be symbolic rather than electronic in its construction, but they 84 couldn't change it even if they wanted to, which they often - 85 impotently and resentfully - do. This "firming of software" is a 86 primary condition of the propertarian approach to the legal 87 organization of digital society, which is the subject of this paper.</para> 88 </footnote> 89 .</para> 90 91 <para>That was then and this is now. Technology based on the manipulation 92 of digitally-encoded information is now socially dominant in most 93 aspects of human culture in the "developed" societies <footnote> 94 <para>2. Within the present generation, the very 95 conception of social "development" is shifting away from possession of 96 heavy 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 . 105 The movement from analog to digital representation - in video, music, 106 printing, telecommunications, and even choreography, religious worship, 107 and sexual 108 gratification - potentially turns all forms of human symbolic activity 109 into software, that is, modifiable instructions for describing and 110 controlling the behavior of machines. By a conceptual back-formation 111 characteristic of Western scientistic thinking, the division between 112 hardware and software is now being observed in the natural or social 113 world, and has become a new way to express the conflict between ideas 114 of determinism and free will, nature and nurture, or genes and culture. 115 Our "hardware," genetically wired, is our nature, and 116 determines us. Our nurture is "software," establishes our cultural 117 programming, which is our comparative freedom. And so on, for those 118 reckless of blather. 119 120 <footnote> 121 <para>3. Actually, a moment's thought will reveal, our 122 genes are firmware. Evolution made the transition from analog to 123 digital before the fossil record begins. But we haven't possessed the 124 power of controlled direct modification. Until the day before 125 yesterday. In the next century the genes too will become software, and 126 while I don't discuss the issue further in this paper, the political 127 consequences of unfreedom of software in this context are even more 128 disturbing than they are with respect to cultural artifacts.</para> 129 </footnote> 130 Thus "software" becomes a viable metaphor for all symbolic activity, 131 apparently divorced from the technical context of the word's origin, 132 despite the unease raised in the technically competent when the term is 133 thus bandied about, eliding the conceptual significance of its 134 derivation. 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> 141 142 <para>But the widespread adoption of digital technology for use by those 143 who do not understand the principles of its operation, while it 144 apparently licenses the broad metaphoric employment of "software," does 145 not in fact permit us to ignore the computers that are now everywhere 146 underneath our social skin. The movement from analog to digital is more 147 important for the structure of social and legal relations than the more 148 famous 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 . 154 This is bad news for those legal thinkers who do not understand it, 155 which is why so much pretending to understand now goes so floridly on. 156 Potentially, however, our great transition is very good news for those 157 who can turn this new-found land into property for themselves. Which is 158 why the current "owners" of software so strongly support and encourage 159 the ignorance of everyone else. Unfortunately for them - for reasons 77 widespread use of computers by technical incompetents, most 78 traditional software - application programs, operating systems, 79 numerical control instructions, and so fort - is, for most of its 80 users, firmware. It may be symbolic rather than electronic in its 81 construction, but they couldn't change it even if they wanted to, 82 which they often - impotently and resentfully - do. This "firming of 83 software" is a primary condition of the propertarian approach to the 84 legal organization of digital society, which is the subject of this 85 paper.</para> </footnote> .</para> 86 87 <para>That was then and this is now. Technology based on the 88 manipulation of digitally-encoded information is now socially dominant 89 in most aspects of human culture in the "developed" societies 90 <footnote> <para>2. Within the present generation, the very conception 91 of social "development" is shifting away from possession of heavy 92 industry based on the internal-combustion engine to "post-industry" 93 based on digital communications and the related "knowledge-based" 94 forms of economic activity.</para></footnote>. The movement from 95 analog to digital representation - in video, music, printing, 96 telecommunications, and even choreography, religious worship, and 97 sexual gratification - potentially turns all forms of human symbolic 98 activity into software, that is, modifiable instructions for 99 describing and controlling the behavior of machines. By a conceptual 100 back-formation characteristic of Western scientistic thinking, the 101 division between hardware and software is now being observed in the 102 natural or social world, and has become a new way to express the 103 conflict between ideas of determinism and free will, nature and 104 nurture, or genes and culture. Our "hardware," genetically wired, is 105 our nature, and determines us. Our nurture is "software," establishes 106 our cultural programming, which is our comparative freedom. And so on, 107 for those reckless of blather.<footnote><para>3. Actually, a moment's 108 thought will reveal, our genes are firmware. Evolution made the 109 transition from analog to digital before the fossil record begins. But 110 we haven't possessed the power of controlled direct 111 modification. Until the day before yesterday. In the next century the 112 genes too will become software, and while I don't discuss the issue 113 further in this paper, the political consequences of unfreedom of 114 software in this context are even more disturbing than they are with 115 respect to cultural artifacts.</para></footnote> Thus "software" 116 becomes a viable metaphor for all symbolic activity, apparently 117 divorced from the technical context of the word's origin, despite the 118 unease raised in the technically competent when the term is thus 119 bandied about, eliding the conceptual significance of its 120 derivation.<footnote><para>4. <emphasis>See, e.g.,</emphasis> 121 J. M. Balkin, 1998. <emphasis>Cultural Software: a Theory of 122 Ideology.</emphasis> New Haven: Yale University 123 Press.</para></footnote></para> 124 125 <para>But the widespread adoption of digital technology for use by 126 those who do not understand the principles of its operation, while it 127 apparently licenses the broad metaphoric employment of "software," 128 does not in fact permit us to ignore the computers that are now 129 everywhere underneath our social skin. The movement from analog to 130 digital is more important for the structure of social and legal 131 relations than the more famous if less certain movement from status to 132 contract <footnote><para>5. <emphasis>See</emphasis> Henry Sumner 133 Maine, 1861. <emphasis>Ancient Law: Its Connection with the Early 134 History of Society, and Its Relation to Modern Idea.</emphasis> First 135 edition. London: J. Murray.</para></footnote>. This is bad news for 136 those legal thinkers who do not understand it, which is why so much 137 pretending to understand now goes so floridly on. Potentially, 138 however, our great transition is very good news for those who can turn 139 this new-found land into property for themselves. Which is why the 140 current "owners" of software so strongly support and encourage the 141 ignorance of everyone else. Unfortunately for them - for reasons 160 142 familiar to legal theorists who haven't yet understood how to apply 161 their traditional logic in this area - the trick won't work. This paper 162 explains why 163 <footnote> 164 <para>6. In general I dislike the intrusion of 165 autobiography into scholarship. But because it is here my sad duty and 166 great pleasure to challenge the qualifications or <i>bona fides</i> of 167 just about everyone, I must enable the assessment of my own. I was 168 first exposed to the craft of computer programming in 1971. I began 169 earning wages as a commercial programmer in 1973 - at the age of 170 thirteen - and did so, in a variety of computer services, engineering, 171 and multinational technology enterprises, until 1985. In 1975 I helped 172 write one of the first networked e-mail systems in the United States; 173 from 1979 I was engaged in research and development of advanced 174 computer programming languages at IBM. These activities made it 175 economically possible for me to study the arts of historical 176 scholarship and legal cunning. My wages were sufficient to pay my 177 tuitions, but not - to anticipate an argument that will be made by the 178 econodwarves further along - because my programs were the intellectual 179 property of my employer, but rather because they made the hardware my 180 employer sold work better. Most of what I wrote was effectively free 181 software, as we shall see. Although I subsequently made some 182 inconsiderable technical contributions to the actual free software 183 movement this paper describes, my primary activities on its behalf have 184 been legal: I have served for the past five years (without pay, 185 naturally) as general counsel of the Free Software Foundation.</para> 186 187 </footnote> 188 189 190 .</para> 143 their traditional logic in this area - the trick won't work. This 144 paper explains why<footnote><para>6. In general I dislike the 145 intrusion of autobiography into scholarship. But because it is here my 146 sad duty and great pleasure to challenge the qualifications or 147 <emphasis>bona fides</emphasis> of just about everyone, I must enable 148 the assessment of my own. I was first exposed to the craft of computer 149 programming in 1971. I began earning wages as a commercial programmer 150 in 1973 - at the age of thirteen - and did so, in a variety of 151 computer services, engineering, and multinational technology 152 enterprises, until 1985. In 1975 I helped write one of the first 153 networked e-mail systems in the United States; from 1979 I was engaged 154 in research and development of advanced computer programming languages 155 at IBM. These activities made it economically possible for me to study 156 the arts of historical scholarship and legal cunning. My wages were 157 sufficient to pay my tuitions, but not - to anticipate an argument 158 that will be made by the econodwarves further along - because my 159 programs were the intellectual property of my employer, but rather 160 because they made the hardware my employer sold work better. Most of 161 what I wrote was effectively free software, as we shall see. Although 162 I subsequently made some inconsiderable technical contributions to the 163 actual free software movement this paper describes, my primary 164 activities on its behalf have been legal: I have served for the past 165 five years (without pay, naturally) as general counsel of the Free 166 Software Foundation.</para></footnote>.</para> 191 167 192 168 <para>We need to begin by considering the technical essence of the 193 familiar 194 devices that surround us in the era of "cultural software." A CD player 195 is a good example. Its primary input is a bitstream read from an 196 optical storage disk. The bitstream describes music in terms of 197 measurements, taken 44,000 times per second, of frequency and amplitude 198 in each of two audio channels. The player's primary output is analog 199 audio signals 200 <footnote> 201 <para>7. The player, of course, has secondary inputs 202 and outputs in control channels: buttons or infrared remote control are 203 input, and time and track display are output.</para> 204 </footnote> 205 206 . 207 Like 208 everything else in the digital world, music as seen by a CD player is 209 mere numeric information; a particular recording of Beethoven's Ninth 210 Symphony recorded by Arturo Toscanini and the NBC Symphony Orchestra 211 and Chorale is (to drop a few insignificant digits) 1276749873424, 212 while Glenn Gould's peculiarly perverse last recording of the Goldberg 213 Variations is (similarly rather truncated) 767459083268.</para> 169 familiar devices that surround us in the era of "cultural software." A 170 CD player is a good example. Its primary input is a bitstream read 171 from an optical storage disk. The bitstream describes music in terms 172 of measurements, taken 44,000 times per second, of frequency and 173 amplitude in each of two audio channels. The player's primary output 174 is analog audio signals <footnote><para>7. The player, of course, has 175 secondary inputs and outputs in control channels: buttons or infrared 176 remote control are input, and time and track display are 177 output.</para></footnote>. Like everything else in the digital world, 178 music as seen by a CD player is mere numeric information; a particular 179 recording of Beethoven's Ninth Symphony recorded by Arturo Toscanini 180 and the NBC Symphony Orchestra and Chorale is (to drop a few 181 insignificant digits) 1276749873424, while Glenn Gould's peculiarly 182 perverse last recording of the Goldberg Variations is (similarly 183 rather truncated) 767459083268.</para> 214 184 215 185 <para>Oddly enough, these two numbers are "copyrighted." This means, … … 220 190 "derivative work," for which a license is necessary.</para> 221 191 222 <para>At the same time, a similar optical storage disk contains another223 number, let us call it 7537489532. This one is an algorithm for linear 224 programming of large systems with multiple constraints, useful for 225 example if you want to make optimal use of your rolling stock in 226 running a freight railroad. This number (in the U.S.) is "patented," 227 which means you cannot derive 7537489532 for yourself, or otherwise 228 "practice the art" of the patent with respect to solving linear 229 programming problems no matter how you came by the idea, including 230 finding it out for yourself, unless you have a license from the 231 number's owner.</para>192 <para>At the same time, a similar optical storage disk contains 193 another number, let us call it 7537489532. This one is an algorithm 194 for linear programming of large systems with multiple constraints, 195 useful for example if you want to make optimal use of your rolling 196 stock in running a freight railroad. This number (in the U.S.) is 197 "patented," which means you cannot derive 7537489532 for yourself, or 198 otherwise "practice the art" of the patent with respect to solving 199 linear programming problems no matter how you came by the idea, 200 including finding it out for yourself, unless you have a license from 201 the number's owner.</para> 232 202 233 203 <para>Then there's 9892454959483. This one is the source code for 234 Microsoft 235 Word. In addition to being "copyrighted," this one is a trade secret. 236 That means if you take this number from Microsoft and give it to anyone 237 else you can be punished.</para> 238 239 <para>Lastly, there's 588832161316. It doesn't do anything, it's just the 240 square of 767354. As far as I know, it isn't owned by anybody under any 241 of these rubrics. Yet.</para> 204 Microsoft Word. In addition to being "copyrighted," this one is a 205 trade secret. That means if you take this number from Microsoft and 206 give it to anyone else you can be punished.</para> 207 208 <para>Lastly, there's 588832161316. It doesn't do anything, it's just 209 the square of 767354. As far as I know, it isn't owned by anybody 210 under any of these rubrics. Yet.</para> 242 211 243 212 <para>At this point we must deal with our first objection from the 244 learned. It comes from a creature known as the IPdroid. The droid has a245 sophisticated mind and a cultured life. It appreciates very much the213 learned. It comes from a creature known as the IPdroid. The droid has 214 a sophisticated mind and a cultured life. It appreciates very much the 246 215 elegant dinners at academic and ministerial conferences about the 247 216 TRIPs, not to mention the privilege of frequent appearances on MSNBC. 248 217 It wants you to know that I'm committing the mistake of confusing the 249 218 embodiment with the intellectual property itself. It's not the number 250 that's patented, stupid, just the Kamarkar algorithm. The number <emphasis>can</emphasis>251 be copyrighted, because copyright covers the expressive252 qualities of a particular tangible embodiment of an idea (in which some 253 functional properties may be mysteriously merged, provided that they're 254 not too merged), but not the algorithm. Whereas the number isn't 255 patentable, just the "teaching" of the number with respect to making 256 r ailroads run on time. And the number representing the source code of257 Microsoft Word can be a trade secret, but if you find it out for 258 yourself (by performing arithmetic manipulation of other numbers issued 259 by Microsoft, for example, which is known as "reverse 260 engineering"), you're not going to be punished, at least if you live in 261 some parts of the United States.</para>219 that's patented, stupid, just the Kamarkar algorithm. The number 220 <emphasis>can</emphasis> be copyrighted, because copyright covers the 221 expressive qualities of a particular tangible embodiment of an idea 222 (in which some functional properties may be mysteriously merged, 223 provided that they're not too merged), but not the algorithm. Whereas 224 the number isn't patentable, just the "teaching" of the number with 225 respect to making railroads run on time. And the number representing 226 the source code of Microsoft Word can be a trade secret, but if you 227 find it out for yourself (by performing arithmetic manipulation of 228 other numbers issued by Microsoft, for example, which is known as 229 "reverse engineering"), you're not going to be punished, at least if 230 you live in some parts of the United States.</para> 262 231 263 232 <para>This droid, like other droids, is often right. The condition of 264 233 being a droid is to know everything about something and nothing about 265 234 anything else. By its timely and urgent intervention the droid has 266 established that the current intellectual property system contains many 267 intricate and ingenious features. The complexities combine to allow 268 professors to be erudite, Congressmen to get campaign contributions, 269 lawyers to wear nice suits and tassel loafers, and Murdoch to be rich. 270 The complexities mostly evolved in an age of industrial information 271 distribution, when information was inscribed in analog forms on 272 physical objects that cost something significant to make, move, and 273 sell. When applied to digital information that moves frictionlessly 274 through the network and has zero marginal cost per copy, everything 275 still works, mostly, as long as you don't stop squinting.</para> 235 established that the current intellectual property system contains 236 many intricate and ingenious features. The complexities combine to 237 allow professors to be erudite, Congressmen to get campaign 238 contributions, lawyers to wear nice suits and tassel loafers, and 239 Murdoch to be rich. The complexities mostly evolved in an age of 240 industrial information distribution, when information was inscribed in 241 analog forms on physical objects that cost something significant to 242 make, move, and sell. When applied to digital information that moves 243 frictionlessly through the network and has zero marginal cost per 244 copy, everything still works, mostly, as long as you don't stop 245 squinting.</para> 276 246 277 247 <para>But that wasn't what I was arguing about. I wanted to point out 278 248 something else: that our world consists increasingly of nothing but 279 large numbers (also known as bitstreams), and that - for reasons having280 nothing to do with emergent properties of the numbers themselves - the 281 legal system is presently committed to treating similar numbers 282 radically differently. No one can tell, simply by249 large numbers (also known as bitstreams), and that - for reasons 250 having nothing to do with emergent properties of the numbers 251 themselves - the legal system is presently committed to treating 252 similar numbers radically differently. No one can tell, simply by 283 253 looking at a number that is 100 million digits long, whether that 284 254 number is subject to patent, copyright, or trade secret protection, or … … 292 262 legal regimes based on sharp but unpredictable distinctions among 293 263 similar objects are radically unstable. They fall apart over time 294 because every instance of the rules' application is an invitation to at295 least one side to claim that instead of fitting in ideal category A the 296 particular object in dispute should be deemed to fit instead in264 because every instance of the rules' application is an invitation to 265 at least one side to claim that instead of fitting in ideal category A 266 the particular object in dispute should be deemed to fit instead in 297 267 category B, where the rules will be more favorable to the party making 298 268 the claim. This game - about whether a typewriter should be deemed a … … 302 272 require judges to distinguish among the identical, the game is 303 273 infinitely lengthy, infinitely costly, and almost infinitely offensive 304 to the unbiased bystander 305 <footnote> 306 307 <para>8. This is not an insight unique to our present 308 enterprise. A closely-related idea forms one of the most important 309 principles in the history of Anglo-American law, perfectly put by Toby 310 Milsom in the following terms:</para> 311 <blockquote>The life of the common law has been in the abuse of 274 to the unbiased bystander <footnote><para>8. This is not an insight 275 unique to our present enterprise. A closely-related idea forms one of 276 the most important principles in the history of Anglo-American law, 277 perfectly put by Toby Milsom in the following terms:</para> 278 <blockquote><para>The life of the common law has been in the abuse of 312 279 its elementary ideas. If the rules of property give what now seems an 313 280 unjust answer, try obligation; and equity has proved that from the 314 materials of 315 obligation you can counterfeit the phenomena of property. If the rules 316 of contract give what now seems an unjust answer, try tort. ... If the 317 rules of one tort, say deceit, give what now seems an unjust answer, 318 try 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> 281 materials of obligation you can counterfeit the phenomena of 282 property. If the rules of contract give what now seems an unjust 283 answer, try tort. ... If the rules of one tort, say deceit, give what 284 now seems an unjust answer, try another, try negligence. And so the 285 legal world goes round.</para></blockquote><para>S.F.C. Milsom, 286 1981. <emphasis>Historical Foundations of the Common Law.</emphasis> 287 Second edition. London: Butterworths, p. 6.</para> </footnote>.</para> 326 288 327 289 <para>Thus parties can spend all the money they want on all the 328 legislators and 329 judges they can afford - which for the new "owners" of the digital 330 world is quite a few - but the rules they buy aren't going to work in 331 the end. Sooner or later, the paradigms are going to collapse. Of 332 course, if later means two generations from now, the distribution of 333 wealth and power sanctified in the meantime may not be reversible by 334 any course less drastic than a <emphasis>bellum servile</emphasis> 335 of couch potatoes against media magnates. So knowing that history isn't 336 on Bill Gates' side isn't enough. We are predicting the future in a 337 very 338 limited sense: we know that the existing rules, which have yet the 339 fervor of conventional belief solidly enlisted behind them, are no 340 longer meaningful. Parties will use and abuse them freely until the 341 mainstream of "respectable" conservative opinion acknowledges their 342 death, with uncertain results. But realistic scholarship should already 343 be turning its attention to the clear need for new thoughtways.</para> 290 legislators and judges they can afford - which for the new "owners" of 291 the digital world is quite a few - but the rules they buy aren't going 292 to work in the end. Sooner or later, the paradigms are going to 293 collapse. Of course, if later means two generations from now, the 294 distribution of wealth and power sanctified in the meantime may not be 295 reversible by any course less drastic than a <emphasis>bellum 296 servile</emphasis> of couch potatoes against media magnates. So 297 knowing that history isn't on Bill Gates' side isn't enough. We are 298 predicting the future in a very limited sense: we know that the 299 existing rules, which have yet the fervor of conventional belief 300 solidly enlisted behind them, are no longer meaningful. Parties will 301 use and abuse them freely until the mainstream of "respectable" 302 conservative opinion acknowledges their death, with uncertain 303 results. But realistic scholarship should already be turning its 304 attention to the clear need for new thoughtways.</para> 344 305 345 306 <para>When we reach this point in the argument, we find ourselves 346 307 contending with the other primary protagonist of educated idiocy: the 347 308 econodwarf. 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> 352 but where the droid is committed to logic over experience, the 353 econodwarf specializes in an energetic and well-focused but entirely 354 erroneous view of human nature. According to the econodwarf's vision, 355 each human being is an 356 individual possessing "incentives," which can be retrospectively 357 unearthed by imagining the state of the bank account at various times. 358 So in this instance the econodwarf feels compelled to object that 359 without the rules I am lampooning, there would be no incentive to 360 create the things the rules treat as property: without the ability to 361 exclude others from music there would be no music, because no one could 362 be sure of getting paid for creating it.</para> 363 364 <para>Music is not really our subject; the software I am considering at 365 the moment is the old kind: computer programs. But as he is determined 366 to deal at least cursorily with the subject, and because, as we have 367 seen, it is no longer really possible to distinguish computer programs 368 from music performances, a word or two should be said. At least we can 369 have the satisfaction of indulging in an argument <emphasis>ad pygmeam</emphasis>. 370 When the econodwarf grows rich, in my experience, he attends the opera. 371 But no matter how often he hears <emphasis>Don Giovanni</emphasis> it never occurs to 372 him that Mozart's fate should, on his logic, have entirely discouraged 373 Beethoven, or that we have <emphasis>The Magic Flute</emphasis> even though Mozart 374 knew very well he wouldn't be paid. In fact, <emphasis>The Magic Flute</emphasis>, 375 <emphasis>St. Matthew's Passion</emphasis>, 376 and the motets of the wife-murderer Carlo Gesualdo are all part of the 377 centuries-long tradition of free software, in the more general sense, 378 which the econodwarf never quite acknowledges.</para> 379 <!--<center><img src="anarchism_files/mog1.gif"></center> --> 380 <para> The dwarf's basic problem is that "incentives" is merely a 381 metaphor, and as a metaphor to describe human creative activity it's 382 pretty 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 385 Virtual Scholar and Network Liberation.</a></para> 386 387 </footnote> 388 but 389 the better metaphor arose on the day Michael Faraday first noticed what 390 happened when he wrapped a coil of wire around a magnet and spun the 391 magnet. Current flows in such a wire, but we don't ask what the 309 <footnote><para>9. <emphasis>See</emphasis> Isaiah Berlin, 310 1953. <emphasis>The Hedgehog and the Fox: An Essay on Tolstoy's View 311 of History.</emphasis> New York: Simon and Schuster.</para> 312 </footnote> but where the droid is committed to logic over experience, 313 the econodwarf specializes in an energetic and well-focused but 314 entirely erroneous view of human nature. According to the econodwarf's 315 vision, each human being is an individual possessing "incentives," 316 which can be retrospectively unearthed by imagining the state of the 317 bank account at various times. So in this instance the econodwarf 318 feels compelled to object that without the rules I am lampooning, 319 there would be no incentive to create the things the rules treat as 320 property: without the ability to exclude others from music there would 321 be no music, because no one could be sure of getting paid for creating 322 it.</para> 323 324 <para>Music is not really our subject; the software I am considering 325 at the moment is the old kind: computer programs. But as he is 326 determined to deal at least cursorily with the subject, and because, 327 as we have seen, it is no longer really possible to distinguish 328 computer programs from music performances, a word or two should be 329 said. At least we can have the satisfaction of indulging in an 330 argument <emphasis>ad pygmeam</emphasis>. When the econodwarf grows 331 rich, in my experience, he attends the opera. But no matter how often 332 he hears <emphasis>Don Giovanni</emphasis> it never occurs to him that 333 Mozart's fate should, on his logic, have entirely discouraged 334 Beethoven, or that we have <emphasis>The Magic Flute</emphasis> even 335 though Mozart knew very well he wouldn't be paid. In fact, 336 <emphasis>The Magic Flute</emphasis>, <emphasis>St. Matthew's 337 Passion</emphasis>, and the motets of the wife-murderer Carlo Gesualdo 338 are all part of the centuries-long tradition of free software, in the 339 more general sense, which the econodwarf never quite 340 acknowledges.</para> <!--<center><img 341 src="anarchism_files/mog1.gif"></center> --> <para> The dwarf's basic 342 problem is that "incentives" is merely a metaphor, and as a metaphor 343 to describe human creative activity it's pretty crummy. I have said 344 this before, <footnote> <para>10. <emphasis>See</emphasis> <ulink 345 url="http://emoglen.law.columbia.edu/my_pubs/nospeech.html">The 346 Virtual Scholar and Network Liberation.</ulink></para> </footnote> but 347 the better metaphor arose on the day Michael Faraday first noticed 348 what happened when he wrapped a coil of wire around a magnet and spun 349 the magnet. Current flows in such a wire, but we don't ask what the 392 350 incentive is for the electrons to leave home. We say that the current 393 351 results from an emergent property of the system, which we call … … 397 355 planet, software flows in the network. It's an emergent property of 398 356 connected human minds that they create things for one another's 399 pleasure and to conquer their uneasy sense of being too alone. The only 400 question to ask is, what's the resistance of the network? Moglen's 401 Metaphorical Corollary to Ohm's Law states that the resistance of the 402 network is directly proportional to the field strength of the 403 "intellectual property" system. So the right answer to the econodwarf 404 is, resist the resistance.</para> 405 406 <para>Of course, this is all very well in theory. "Resist the resistance" 407 sounds good, but we'd have a serious problem, theory notwithstanding, 408 if the dwarf were right and we found ourselves under-producing good 409 software because we didn't let people own it. But dwarves and droids 410 are formalists of different kinds, and the advantage of realism is that 411 if you start from the facts the facts are always on your side. It turns 412 out that treating software as property makes bad software.</para> 357 pleasure and to conquer their uneasy sense of being too alone. The 358 only question to ask is, what's the resistance of the network? 359 Moglen's Metaphorical Corollary to Ohm's Law states that the 360 resistance of the network is directly proportional to the field 361 strength of the "intellectual property" system. So the right answer to 362 the econodwarf is, resist the resistance.</para> 363 364 <para>Of course, this is all very well in theory. "Resist the 365 resistance" sounds good, but we'd have a serious problem, theory 366 notwithstanding, if the dwarf were right and we found ourselves 367 under-producing good software because we didn't let people own it. But 368 dwarves and droids are formalists of different kinds, and the 369 advantage of realism is that if you start from the facts the facts are 370 always on your side. It turns out that treating software as property 371 makes bad software.</para> 413 372 414 373 </section> … … 416 375 <title>II. Software as Property: The Practical Problem</title> 417 376 418 <para>In order to understand why turning software into property produces 419 bad software, we need an introduction to the history of the art. In 420 fact, we'd better start with the word "art" itself. The programming of 421 computers combines determinate reasoning with literary invention.</para> 422 423 <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 426 computers actually execute numerical instructions: bitstrings that 427 contain information in the "native" language created by the machine's 428 designers. This is usually referred to as "machine language." The 429 machine languages of hardware are designed for speed of execution at 430 the hardware level, and are not suitable for direct use by human 431 beings. So among the central components of a computer system are 432 "programming languages," which translate expressions convenient for 433 humans into machine language. The most common and relevant, but by no 434 means the only, form of computer language is a "compiler." The compiler 435 performs static translation, so that a file containing human-readable 436 instructions, known as "source code" results in the generation of one 437 or more files of executable machine language, known as "object code."</para> 438 439 </footnote> 440 441 442 . 443 The primary desideratum in a computer program is that it works, that is 444 to say, performs according to specifications formally describing its 377 <para>In order to understand why turning software into property 378 produces bad software, we need an introduction to the history of the 379 art. In fact, we'd better start with the word "art" itself. The 380 programming of computers combines determinate reasoning with literary 381 invention.</para> 382 383 <para>At first glance, to be sure, source code appears to be a 384 non-literary form of composition <footnote><para>11. Some basic 385 vocabulary is essential. Digital computers actually execute numerical 386 instructions: bitstrings that contain information in the "native" 387 language created by the machine's designers. This is usually referred 388 to as "machine language." The machine languages of hardware are 389 designed for speed of execution at the hardware level, and are not 390 suitable for direct use by human beings. So among the central 391 components of a computer system are "programming languages," which 392 translate expressions convenient for humans into machine language. The 393 most common and relevant, but by no means the only, form of computer 394 language is a "compiler." The compiler performs static translation, so 395 that a file containing human-readable instructions, known as "source 396 code" results in the generation of one or more files of executable 397 machine language, known as "object code."</para> </footnote>. The 398 primary desideratum in a computer program is that it works, that is to 399 say, performs according to specifications formally describing its 445 400 outputs in terms of its inputs. At this level of generality, the 446 401 functional content of programs is all that can be seen.</para> 447 402 448 <para>But working computer programs exist as parts of computer systems,449 which are interacting collections of hardware, software, and human 450 beings. The human components of a computer system include not only the 451 users, but also the (potentially different) persons who maintain and 452 improve the system. Source code not only communicates with the computer 453 that executes the program, through the intermediary of the compiler 454 that produces machine-language object code, but also with other 455 programmers.</para>456 457 <para>The function of source code in relation to other human beings is not458 widely grasped by non-programmers, who tend to think of computer459 programs as incomprehensible. They would be surprised to learn that the460 bulk of information contained in most programs is, from the point of 461 view of the compiler or other language processor, "comment," that is, 462 non-functional material. The comments, of course, are addressed to403 <para>But working computer programs exist as parts of computer 404 systems, which are interacting collections of hardware, software, and 405 human beings. The human components of a computer system include not 406 only the users, but also the (potentially different) persons who 407 maintain and improve the system. Source code not only communicates 408 with the computer that executes the program, through the intermediary 409 of the compiler that produces machine-language object code, but also 410 with other programmers.</para> 411 412 <para>The function of source code in relation to other human beings is 413 not widely grasped by non-programmers, who tend to think of computer 414 programs as incomprehensible. They would be surprised to learn that 415 the bulk of information contained in most programs is, from the point 416 of view of the compiler or other language processor, "comment," that 417 is, non-functional material. The comments, of course, are addressed to 463 418 others who may need to fix a problem or to alter or enhance the 464 419 program's operation. In most programming languages, far more space is … … 466 421 computer how to do it.</para> 467 422 468 <para>The design of programming languages has always proceeded under the469 dual requirements of complete specification for machine execution and 470 informative description for human readers. One might identify three 471 basic strategies in language design for approaching this dual purpose. 472 The first, pursued initially with respect to the design of languages 473 specific to particular hardware products and collectively known as 474 "assemblers," essentially separated the human- and423 <para>The design of programming languages has always proceeded under 424 the dual requirements of complete specification for machine execution 425 and informative description for human readers. One might identify 426 three basic strategies in language design for approaching this dual 427 purpose. The first, pursued initially with respect to the design of 428 languages specific to particular hardware products and collectively 429 known as "assemblers," essentially separated the human- and 475 430 machine-communication portions of the program. Assembler instructions 476 431 are very close relatives of machine-language instructions: in general, … … 483 438 document the major data structures the program manipulates.</para> 484 439 485 <para>A second approach, characteristically depicted by the language COBOL486 (which stood for "Common Business-Oriented Language"), was to make the 487 program itself look like a set of natural language directions, written 488 in a crabbed but theoretically human-readable style. A line of COBOL 489 code might say, for example "MULTIPLY PRICE TIMES QUANTITY GIVING 490 EXPANSION." At first, when the Pentagon 491 and industry experts began the joint design of COBOL in the early 492 1960's, this seemed a promising approach. COBOL programs appeared 493 largely self-documenting, allowing both the development of work teams 494 able to collaborate on the creation of large programs, and the training 495 ofprogrammers who, while specialized workers, would not need to440 <para>A second approach, characteristically depicted by the language 441 COBOL (which stood for "Common Business-Oriented Language"), was to 442 make the program itself look like a set of natural language 443 directions, written in a crabbed but theoretically human-readable 444 style. A line of COBOL code might say, for example "MULTIPLY PRICE 445 TIMES QUANTITY GIVING EXPANSION." At first, when the Pentagon and 446 industry experts began the joint design of COBOL in the early 1960's, 447 this seemed a promising approach. COBOL programs appeared largely 448 self-documenting, allowing both the development of work teams able to 449 collaborate on the creation of large programs, and the training of 450 programmers who, while specialized workers, would not need to 496 451 understand the machine as intimately as assembler programs had to. But 497 the level of generality at which such programs documented 498 themselves was wrongly selected. A more formulaic and compressed 499 expression of operational detail "expansion = price x quantity," for 500 example, was better suited even to business and financial applications 501 where the readers and writers of programs were accustomed to 502 mathematical expression, while the processes of describing both data 503 structures and the larger operational context of the program were not 504 rendered unnecessary by the wordiness of the language in which the 505 details ofexecution were specified.</para>452 the level of generality at which such programs documented themselves 453 was wrongly selected. A more formulaic and compressed expression of 454 operational detail "expansion = price x quantity," for example, was 455 better suited even to business and financial applications where the 456 readers and writers of programs were accustomed to mathematical 457 expression, while the processes of describing both data structures and 458 the larger operational context of the program were not rendered 459 unnecessary by the wordiness of the language in which the details of 460 execution were specified.</para> 506 461 507 462 <para>Accordingly, language designers by the late 1960s began … … 512 467 manipulated data abstractly, so that "A x B" might mean the 513 468 multiplication of two integers, two complex numbers, two vast arrays, 514 or any other data type capable of some process called "multiplication," 515 to be undertaken by the computer on the basis of the context for the 516 variables "A" and "B" at the moment of execution 517 <footnote> 518 <para>12. This, I should say, was the path that most 519 of my research and development followed, largely in connection with a 469 or any other data type capable of some process called 470 "multiplication," to be undertaken by the computer on the basis of the 471 context for the variables "A" and "B" at the moment of execution 472 <footnote> <para>12. This, I should say, was the path that most of my 473 research and development followed, largely in connection with a 520 474 language called APL ("A Programming Language") and its successors. It 521 475 was not, however, the ultimately-dominant approach, for reasons that 522 will be suggested below.</para> 523 </footnote> 524 . 525 Because this 526 approach resulted in extremely concise programs, it was thought, the 527 problem of making code comprehensible to those who would later seek to 528 modify or repair it was simplified. By hiding the technical detail of 529 computer operation and emphasizing the algorithm, languages could be 530 devised that were better than English or other natural languages for 531 the expression of stepwise processes. Commentary would be not only 476 will be suggested below.</para> </footnote> . Because this approach 477 resulted in extremely concise programs, it was thought, the problem of 478 making code comprehensible to those who would later seek to modify or 479 repair it was simplified. By hiding the technical detail of computer 480 operation and emphasizing the algorithm, languages could be devised 481 that were better than English or other natural languages for the 482 expression of stepwise processes. Commentary would be not only 532 483 unnecessary but distracting, just as the metaphors used to convey 533 mathematical concepts in English do more to confuse than to enlighten.</para> 534 535 <h3>How We Created the Microbrain Mess</h3> 484 mathematical concepts in English do more to confuse than to 485 enlighten.</para> 486 487 <title>How We Created the Microbrain Mess</title> 536 488 537 489 <para>Thus the history of programming languages directly reflected the … … 552 504 was an appropriate candidate for copyright treatment.</para> 553 505 554 <para>True, so long as it is understood that the expressive component of555 software was present solely in order to facilitate the making of506 <para>True, so long as it is understood that the expressive component 507 of software was present solely in order to facilitate the making of 556 508 "derivative works." Were it not for the intention to facilitate 557 509 alteration, the expressive elements of programs would be entirely … … 560 512 the program's functional characteristics.</para> 561 513 562 <para>The state of the computer industry throughout the 1960's and 1970's,563 when the grundnorms of sophisticated computer programming were514 <para>The state of the computer industry throughout the 1960's and 515 1970's, when the grundnorms of sophisticated computer programming were 564 516 established, concealed the tension implicit in this situation. In that 565 517 period, hardware was expensive. Computers were increasingly large and … … 567 519 building such an array of machines for general use was dominated, not 568 520 to say monopolized, by one firm. IBM gave away its software. To be 569 sure, it owned the programs its employees wrote, and 570 it copyrighted the source code. But it also distributed the programs - 571 including the source code - to its customers at no additional charge, 572 and encouraged them to make and share improvements or adaptations of 573 th e programs thus distributed. For a dominant hardware manufacturer,574 this strategy made sense: better programs sold more computers, which is 575 where theprofitability of the business rested.</para>521 sure, it owned the programs its employees wrote, and it copyrighted 522 the source code. But it also distributed the programs - including the 523 source code - to its customers at no additional charge, and encouraged 524 them to make and share improvements or adaptations of the programs 525 thus distributed. For a dominant hardware manufacturer, this strategy 526 made sense: better programs sold more computers, which is where the 527 profitability of the business rested.</para> 576 528 577 529 <para>Computers, in this period, tended to aggregate within particular … … 580 532 on spools of magnetic tape. This distribution system tended to 581 533 centralize software development, so that while IBM customers were free 582 to make modifications and improvements to programs, those modifications583 were shared in the first instance with IBM, which then considered 584 whether and in what way to incorporate those changes in the534 to make modifications and improvements to programs, those 535 modifications were shared in the first instance with IBM, which then 536 considered whether and in what way to incorporate those changes in the 585 537 centrally-developed and distributed version of the software. Thus in 586 538 two important senses the best computer software in the world was free: 587 539 it cost nothing to acquire, and the terms on which it was furnished 588 both allowed and encouraged experimentation, change, and improvement 589 <footnote> 590 <para>13. This description elides some details. By 591 the mid-1970's IBM had acquired meaningful competition in the mainframe 540 both allowed and encouraged experimentation, change, and improvement 541 <footnote><para>13. This description elides some details. By the 542 mid-1970's IBM had acquired meaningful competition in the mainframe 592 543 computer business, while the large-scale antitrust action brought 593 544 against it by the U.S. government prompted the decision to "unbundle," … … 601 552 "almost free," that is, to discuss with users the changes they had 602 553 proposed or made in the programs, and to engage with them in 603 cooperative development of the product for the benefit of all users.</para> 604 605 </footnote> 606 607 608 609 . 610 That the software in question was IBM's property under prevailing 611 copyright law certainly established some theoretical limits on users' 612 ability to distribute their improvements or adaptations to others, but 613 in practice mainframe software was cooperatively developed by the 614 dominant hardware manufacturer and its technically-sophisticated users, 615 employing the manufacturer's distribution resources to propagate the 616 resulting improvements through the user community. The right to exclude 617 others, one of the most important "sticks in the bundle" of property 618 rights (in an image beloved of the United States Supreme Court), was 619 practically unimportant, or even undesirable, at the heart of the 620 software business 621 <footnote> 622 <para>14. This description is highly compressed, and 623 will seem both overly simplified and unduly rosy to those who also 624 worked in the industry during this period of its development. Copyright 625 protection of computer software was a controversial subject in the 626 1970's, leading to the famous CONTU commission and its mildly 627 pro-copyright recommendations of 1979. And IBM seemed far less 628 cooperative to its users at the time than this 554 cooperative development of the product for the benefit of all 555 users.</para> </footnote>. That the software in question was IBM's 556 property under prevailing copyright law certainly established some 557 theoretical limits on users' ability to distribute their improvements 558 or adaptations to others, but in practice mainframe software was 559 cooperatively developed by the dominant hardware manufacturer and its 560 technically-sophisticated users, employing the manufacturer's 561 distribution resources to propagate the resulting improvements through 562 the user community. The right to exclude others, one of the most 563 important "sticks in the bundle" of property rights (in an image 564 beloved of the United States Supreme Court), was practically 565 unimportant, or even undesirable, at the heart of the software 566 business <footnote> <para>14. This description is highly compressed, 567 and will seem both overly simplified and unduly rosy to those who also 568 worked in the industry during this period of its 569 development. Copyright protection of computer software was a 570 controversial subject in the 1970's, leading to the famous CONTU 571 commission and its mildly pro-copyright recommendations of 1979. And 572 IBM seemed far less cooperative to its users at the time than this 629 573 sketch makes out. But the most important element is the contrast with 630 574 the world created by the PC, the Internet, and the dominance of 631 575 Microsoft, with the resulting impetus for the free software movement, 632 and I am here concentrating on the features that express that contrast.</para> 633 </footnote> 634 635 .</para> 576 and I am here concentrating on the features that express that 577 contrast.</para></footnote>.</para> 636 578 637 579 <para>After 1980, everything was different. The world of mainframe … … 639 581 And, as a contingency of the industry's development, the single most 640 582 important element of the software running on that commodity PC, the 641 operating system, became the sole significant product of a company that 642 made no hardware. High-quality basic software ceased to be part of the 643 product-differentiation strategy of hardware manufacturers. Instead, a 644 firm with an overwhelming share of the market, and with the 645 near-monopolist's ordinary absence of interest in fostering diversity, 646 set the practices of the software industry. In such a context, the 647 right to exclude others from participation in the product's formation 648 became profoundly important. Microsoft's power in the market rested 649 entirely on its ownership of the Windows source code.</para> 650 651 <para>To Microsoft, others' making of "derivative works," otherwise known 652 as repairs and improvements, threatened the central asset of the 583 operating system, became the sole significant product of a company 584 that made no hardware. High-quality basic software ceased to be part 585 of the product-differentiation strategy of hardware 586 manufacturers. Instead, a firm with an overwhelming share of the 587 market, and with the near-monopolist's ordinary absence of interest in 588 fostering diversity, set the practices of the software industry. In 589 such a context, the right to exclude others from participation in the 590 product's formation became profoundly important. Microsoft's power in 591 the market rested entirely on its ownership of the Windows source 592 code.</para> 593 594 <para>To Microsoft, others' making of "derivative works," otherwise 595 known as repairs and improvements, threatened the central asset of the 653 596 business. Indeed, as subsequent judicial proceedings have tended to 654 597 establish, Microsoft's strategy as a business was to find innovative … … 657 600 maintenance of control over the basic operation of computers 658 601 manufactured, sold, possessed, and used by others represented profound 659 and profitable leverage over the development of the culture [<a href="#note15">15</a>]; the right to exclude returned to center stage in the concept of software as property.</para> 602 and profitable leverage over the development of the culture <footnote> 603 <para>15. I discuss the importance of PC software in this context, the 604 evolution of "the market for eyeballs" and "the sponsored life" in 605 other chapters of my forthcoming book, <emphasis>The Invisible 606 Barbecue</emphasis>, of which this essay forms a part.</para> 607 </footnote>.; the right to exclude returned to center stage in the 608 concept of software as property.</para> 660 609 661 610 <para>The result, so far as the quality of software was concerned, was … … 672 621 face of Microsoft's market power was always in question.</para> 673 622 674 <para>Without the constant interaction between users able to repair and675 improve and the operating system's manufacturer, the inevitable623 <para>Without the constant interaction between users able to repair 624 and improve and the operating system's manufacturer, the inevitable 676 625 deterioration of quality could not be arrested. But because the 677 626 personal computer revolution expanded the number of users … … 680 629 standards of stability, reliability, maintainability and effectiveness 681 630 that had previously been established in the mainframe world, users of 682 personal computers could hardly be expected to understand how badly, in683 relative terms, the monopoly's software functioned. As the power and 684 capacity of personal computers expanded rapidly, the defects of the 685 software were rendered less obvious amidst the general increase of631 personal computers could hardly be expected to understand how badly, 632 in relative terms, the monopoly's software functioned. As the power 633 and capacity of personal computers expanded rapidly, the defects of 634 the software were rendered less obvious amidst the general increase of 686 635 productivity. Ordinary users, more than half afraid of the technology 687 636 they almost completely did not understand, actually welcomed the … … 689 638 transformations, with the concomitant destabilization of millions of 690 639 careers, it was tranquilizing, in a perverse way, that no personal 691 computer seemed to be able to run for more than a few consecutive hours 692 without crashing. Although it was frustrating to lose work in progress 693 each time an unnecessary failure occurred, the evident fallibility of 694 computers was intrinsically reassuring [<a href="#note16">16</a>].</para> 640 computer seemed to be able to run for more than a few consecutive 641 hours without crashing. Although it was frustrating to lose work in 642 progress each time an unnecessary failure occurred, the evident 643 fallibility of computers was intrinsically reassuring <footnote> 644 <para>16. This same pattern of ambivalence, in which bad programming 645 leading to widespread instability in the new technology is 646 simultaneously frightening and reassuring to technical incompetents, 647 can be seen also in the primarily-American phenomenon of Y2K 648 hysteria.</para> </footnote> .</para> 695 649 696 650 <para>None of this was necessary. The low quality of personal computer … … 699 653 A Lamarckian mode, in which improvements could be made anywhere, by 700 654 anyone, and inherited by everyone else, would have wiped out the 701 deficit, restoring to the world of the PC the stability and reliability 702 of the software made in the quasi-propertarian environment of the 703 mainframe era. But the Microsoft business model precluded 704 Lamarckian inheritance of software improvements. Copyright doctrine, in 705 general and as it applies to software in particular, biases the world 706 towards creationism; in this instance, the problem is that BillG the 707 Creator was far from infallible, and in fact he wasn't even trying.</para> 708 <!--<center><img src="anarchism_files/mog2.gif" hspace="0" vspace="0"></center>--> 709 <para>To make the irony more severe, the growth of the network rendered 710 the non-propertarian alternative even more practical. What scholarly 711 and popular writing alike denominate as a thing ("the Internet") is 712 actually the name of a social condition: the fact that everyone in the 713 network society is connected directly, without intermediation, to 714 everyone else [<a href="#note17">17</a>]. The global interconnection of 655 deficit, restoring to the world of the PC the stability and 656 reliability of the software made in the quasi-propertarian environment 657 of the mainframe era. But the Microsoft business model precluded 658 Lamarckian inheritance of software improvements. Copyright doctrine, 659 in general and as it applies to software in particular, biases the 660 world towards creationism; in this instance, the problem is that BillG 661 the Creator was far from infallible, and in fact he wasn't even 662 trying.</para> <!--<center><img src="anarchism_files/mog2.gif" 663 hspace="0" vspace="0"></center>--> <para>To make the irony more 664 severe, the growth of the network rendered the non-propertarian 665 alternative even more practical. What scholarly and popular writing 666 alike denominate as a thing ("the Internet") is actually the name of a 667 social condition: the fact that everyone in the network society is 668 connected directly, without intermediation, to everyone else 669 <footnote> <para>17. The critical implications of this simple 670 observation about our metaphors are worked out in "How Not to Think 671 about 'The Internet'," in <emphasis>The Invisible Barbecue</emphasis>, 672 forthcoming.</para> </footnote>. The global interconnection of 715 673 networks eliminated the bottleneck that had required a centralized 716 674 software manufacturer to rationalize and distribute the outcome of 717 675 individual innovation in the era of the mainframe.</para> 718 676 719 <para>And so, in one of history's little ironies, the global triumph of720 bad software in the age of the PC was reversed by a surprising677 <para>And so, in one of history's little ironies, the global triumph 678 of bad software in the age of the PC was reversed by a surprising 721 679 combination of forces: the social transformation initiated by the 722 680 network, a long-discarded European theory of political economy, and a 723 681 small band of programmers throughout the world mobilized by a single 724 682 simple idea.</para> 683 725 684 </section> 726 685 <section> 727 <title>Software Wants to Be Free; or, How We Stopped Worrying and Learned to Love the Bomb</title> 728 729 <para>Long before the network of networks was a practical reality, even 730 before it was an aspiration, there was a desire for computers to 686 687 <title>Software Wants to Be Free; or, How We Stopped Worrying and 688 Learned to Love the Bomb</title> 689 690 <para>Long before the network of networks was a practical reality, 691 even before it was an aspiration, there was a desire for computers to 731 692 operate on the basis of software freely available to everyone. This 732 began as a reaction against propertarian software in the mainframe era, 733 and requires another brief historical digression.</para> 734 735 <para>Even though IBM was the largest seller of general purpose computers 736 in the mainframe era, it was not the largest designer and builder of 737 such hardware. The telephone monopoly, American Telephone & 738 Telegraph, was in fact larger than IBM, but it consumed its products 739 internally. And at the famous Bell Labs research arm of the telephone 740 monopoly, in the late 1960's, the developments in computer languages 741 previously described gave birth to an operating system called Unix.</para> 742 743 <para>The idea of Unix was to create a single, scalable operating system 744 to exist on all the computers, from small to large, that the telephone 745 monopoly made for itself. To achieve this goal meant writing an 746 operating system not in machine language, nor in an assembler whose 693 began as a reaction against propertarian software in the mainframe 694 era, and requires another brief historical digression.</para> 695 696 <para>Even though IBM was the largest seller of general purpose 697 computers in the mainframe era, it was not the largest designer and 698 builder of such hardware. The telephone monopoly, American Telephone 699 & Telegraph, was in fact larger than IBM, but it consumed its 700 products internally. And at the famous Bell Labs research arm of the 701 telephone monopoly, in the late 1960's, the developments in computer 702 languages previously described gave birth to an operating system 703 called Unix.</para> 704 705 <para>The idea of Unix was to create a single, scalable operating 706 system to exist on all the computers, from small to large, that the 707 telephone monopoly made for itself. To achieve this goal meant writing 708 an operating system not in machine language, nor in an assembler whose 747 709 linguistic form was integral to a particular hardware design, but in a 748 710 more expressive and generalized language. The one chosen was also a 749 Bell Labs invention, called "C" [<a href="#note18">18</a>]. The C 750 language became common, even dominant, for many 751 kinds of programming tasks, and by the late 1970's the Unix operating 752 system written in that language had been transferred (or "ported," in 753 professional jargon) to computers made by many manufacturers and of 754 many designs.</para> 755 756 <para>AT&T distributed Unix widely, and because of the very design of 757 the 758 operating system, it had to make that distribution in C source code. 759 But AT&T retained ownership of the source code and compelled users 760 to purchase licenses that prohibited redistribution and the making of 761 derivative works. Large computing centers, whether industrial or 762 academic, could afford to purchase such licenses, but individuals could 763 not, while the license restrictions prevented the community of 764 programmers who used Unix from improving it in an evolutionary rather 765 than episodic fashion. And as programmers throughout the world began to 766 aspire to and even expect a personal computer revolution, the "unfree" 767 status of Unix became a source of concern.</para> 768 769 <para>Between 1981 and 1984, one man envisioned a crusade to change the 770 situation. Richard M. Stallman, then an employee of MIT's Artificial 771 Intelligence Laboratory, conceived the project of independent, 772 collaborative redesign and implementation of an operating system that 773 would be true free software. In Stallman's phrase, free software would 774 be a matter of freedom, not of price. Anyone could freely modify and 775 redistribute such software, or sell it, subject only to the restriction 776 that he not try to reduce the rights of others to whom he passed it 777 along. In this way free software could become a self-organizing 778 project, in which no innovation would be lost through proprietary 779 exercises of rights. The system, Stallman decided, would be called GNU, 780 which stood (in an initial example of a taste for recursive acronyms 781 that has characterized free software ever since), for "GNU's Not Unix." 782 Despite misgivings about the fundamental design of Unix, as well as its 783 terms of distribution, GNU was intended to benefit from the wide if 784 unfree source distribution of Unix. Stallman began Project GNU by 785 writing components of the eventual system that were also designed to 786 work without modification on existing Unix systems. Development of the 787 GNU tools could thus proceed directly in the environment of university 788 and other advanced computing centers around the world.</para> 711 Bell Labs invention, called "C" <footnote> <para>18. Technical readers 712 will again observe that this compresses developments occurring from 713 1969 through 1973.</para> </footnote>. The C language became common, 714 even dominant, for many kinds of programming tasks, and by the late 715 1970's the Unix operating system written in that language had been 716 transferred (or "ported," in professional jargon) to computers made by 717 many manufacturers and of many designs.</para> 718 719 <para>AT&T distributed Unix widely, and because of the very design 720 of the operating system, it had to make that distribution in C source 721 code. But AT&T retained ownership of the source code and 722 compelled users to purchase licenses that prohibited redistribution 723 and the making of derivative works. Large computing centers, whether 724 industrial or academic, could afford to purchase such licenses, but 725 individuals could not, while the license restrictions prevented the 726 community of programmers who used Unix from improving it in an 727 evolutionary rather than episodic fashion. And as programmers 728 throughout the world began to aspire to and even expect a personal 729 computer revolution, the "unfree" status of Unix became a source of 730 concern.</para> 731 732 <para>Between 1981 and 1984, one man envisioned a crusade to change 733 the situation. Richard M. Stallman, then an employee of MIT's 734 Artificial Intelligence Laboratory, conceived the project of 735 independent, collaborative redesign and implementation of an operating 736 system that would be true free software. In Stallman's phrase, free 737 software would be a matter of freedom, not of price. Anyone could 738 freely modify and redistribute such software, or sell it, subject only 739 to the restriction that he not try to reduce the rights of others to 740 whom he passed it along. In this way free software could become a 741 self-organizing project, in which no innovation would be lost through 742 proprietary exercises of rights. The system, Stallman decided, would 743 be called GNU, which stood (in an initial example of a taste for 744 recursive acronyms that has characterized free software ever since), 745 for "GNU's Not Unix." Despite misgivings about the fundamental design 746 of Unix, as well as its terms of distribution, GNU was intended to 747 benefit from the wide if unfree source distribution of Unix. Stallman 748 began Project GNU by writing components of the eventual system that 749 were also designed to work without modification on existing Unix 750 systems. Development of the GNU tools could thus proceed directly in 751 the environment of university and other advanced computing centers 752 around the world.</para> 789 753 790 754 <para>The scale of such a project was immense. Somehow, volunteer … … 793 757 Stallman himself was the primary author of several fundamental tools. 794 758 Others were contributed by small or large teams of programmers 795 elsewhere, and assigned to Stallman's project or 796 di stributed directly. A few locations around the developing network797 became archives for the source code of these GNU components, and 798 th roughout the 1980's the GNU tools gained recognition and acceptance799 by Unixusers throughout the world. The stability, reliability, and759 elsewhere, and assigned to Stallman's project or distributed 760 directly. A few locations around the developing network became 761 archives for the source code of these GNU components, and throughout 762 the 1980's the GNU tools gained recognition and acceptance by Unix 763 users throughout the world. The stability, reliability, and 800 764 maintainability of the GNU tools became a by-word, while Stallman's 801 765 profound abilities as a designer continued to outpace, and provide … … 804 768 and technical innovations and their social consequences.</para> 805 769 806 <para>Project GNU, and the Free Software Foundation to which it gave birth807 in 1985, were not the only source of free software ideas. Several forms 808 of copyright license designed to foster free or partially free software 809 began to develop in the academic community, mostly around the Unix 810 environment. The University of California at Berkeley began the design 811 and implementation of another version of Unix for free distribution in 812 the academic community. BSD Unix, as it came to be known, also treated 813 AT&T's Unix as a design standard. The code was broadly released and 814 constituted a reservoir of tools and techniques, but its license terms 815 limited the range of its application, while the elimination of 816 hardware-specific proprietary code from the distribution meant that no 817 one could actually build a working operating system for any particular 818 computer from BSD. Other university-based work also eventuated in 819 quasi-free software; the graphical user interface (or GUI) for Unix 820 systems called X Windows, for example, was created at MIT and 821 distributed with source code on terms permitting free modification. And 822 in 1989-1990, an 823 undergraduate computer science student at the University of Helsinki, 824 LinusTorvalds, began the project that completed the circuit and fully770 <para>Project GNU, and the Free Software Foundation to which it gave 771 birth in 1985, were not the only source of free software 772 ideas. Several forms of copyright license designed to foster free or 773 partially free software began to develop in the academic community, 774 mostly around the Unix environment. The University of California at 775 Berkeley began the design and implementation of another version of 776 Unix for free distribution in the academic community. BSD Unix, as it 777 came to be known, also treated AT&T's Unix as a design 778 standard. The code was broadly released and constituted a reservoir of 779 tools and techniques, but its license terms limited the range of its 780 application, while the elimination of hardware-specific proprietary 781 code from the distribution meant that no one could actually build a 782 working operating system for any particular computer from BSD. Other 783 university-based work also eventuated in quasi-free software; the 784 graphical user interface (or GUI) for Unix systems called X Windows, 785 for example, was created at MIT and distributed with source code on 786 terms permitting free modification. And in 1989-1990, an undergraduate 787 computer science student at the University of Helsinki, Linus 788 Torvalds, began the project that completed the circuit and fully 825 789 energized the free software vision.</para> 826 790 827 <para>What Torvalds did was to begin adapting a computer science teaching tool for real life use. Andrew Tannenbaum's MINIX kernel [<a href="#note19">19</a>], 828 was a staple of Operating Systems courses, providing an example of 829 basic solutions to basic problems. Slowly, and at first without 830 recognizing the intention, Linus began turning the MINIX kernel into an 831 actual kernel for Unix on the Intel x86 processors, the engines that 832 run the world's commodity PCs. As Linus 833 began developing this kernel, which he named Linux, he realized that 834 the best way to make his project work would be to adjust his design 835 decisions so that the existing GNU components would be compatible with 836 his kernel.</para> 837 838 <para>The result of Torvalds' work was the release on the net in 1991 of a 839 sketchy working model of a free software kernel for a Unix-like 791 <para>What Torvalds did was to begin adapting a computer science 792 teaching tool for real life use. Andrew Tannenbaum's MINIX kernel 793 <footnote> <para>19. Operating systems, even Windows (which hides the 794 fact from its users as thoroughly as possible), are actually 795 collections of components, rather than undivided unities. Most of what 796 an operating system does (manage file systems, control process 797 execution, etc.) can be abstracted from the actual details of the 798 computer hardware on which the operating system runs. Only a small 799 inner core of the system must actually deal with the eccentric 800 peculiarities of particular hardware. Once the operating system is 801 written in a general language such as C, only that inner core, known 802 in the trade as the kernel, will be highly specific to a particular 803 computer architecture.</para> </footnote> , was a staple of Operating 804 Systems courses, providing an example of basic solutions to basic 805 problems. Slowly, and at first without recognizing the intention, 806 Linus began turning the MINIX kernel into an actual kernel for Unix on 807 the Intel x86 processors, the engines that run the world's commodity 808 PCs. As Linus began developing this kernel, which he named Linux, he 809 realized that the best way to make his project work would be to adjust 810 his design decisions so that the existing GNU components would be 811 compatible with his kernel.</para> 812 813 <para>The result of Torvalds' work was the release on the net in 1991 814 of a sketchy working model of a free software kernel for a Unix-like 840 815 operating system for PCs, fully compatible with and designed 841 convergently with the large and high-quality suite of system components842 c reated by Stallman's Project GNU and distributed by the Free Software843 F oundation. Because Torvalds chose to release the Linux kernel under844 the Free Software Foundation's General Public License, of which more 845 below, the hundreds and eventually thousands of programmers816 convergently with the large and high-quality suite of system 817 components created by Stallman's Project GNU and distributed by the 818 Free Software Foundation. Because Torvalds chose to release the Linux 819 kernel under the Free Software Foundation's General Public License, of 820 which more below, the hundreds and eventually thousands of programmers 846 821 around the world who chose to contribute their effort towards the 847 822 further development of the kernel could be sure that their efforts 848 would result in permanently free software that no one could turn into a849 proprietary product. Everyone knew that everyone else would be able to 850 t est, improve, and redistribute their improvements. Torvalds accepted851 contributions freely, and with a genially effective style maintained 852 overall direction without dampening enthusiasm. The development of the853 Linux kernel proved that the Internet made it possible to aggregate 854 collections of programmers far larger than any823 would result in permanently free software that no one could turn into 824 a proprietary product. Everyone knew that everyone else would be able 825 to test, improve, and redistribute their improvements. Torvalds 826 accepted contributions freely, and with a genially effective style 827 maintained overall direction without dampening enthusiasm. The 828 development of the Linux kernel proved that the Internet made it 829 possible to aggregate collections of programmers far larger than any 855 830 commercial manufacturer could afford, joined almost non-hierarchically 856 831 in a development project ultimately involving more than one million 857 832 lines of computer code - a scale of collaboration among geographically 858 dispersed unpaid volunteers previously unimaginable in human history [<a href="#note20">20</a>].</para> 833 dispersed unpaid volunteers previously unimaginable in human history 834 <footnote> <para>20. A careful and creative analysis of how Torvalds 835 made this process work, and what it implies for the social practices 836 of creating software, was provided by Eric S. Raymond in his seminal 837 1997 paper, <ulink 838 url="http://firstmonday.org/issues/issue3_3/raymond/index.html">The 839 Cathedral and the Bazaar,</ulink> which itself played a significant 840 role in the expansion of the free software idea.</para> 841 </footnote>.</para> 859 842 860 843 <para>By 1994, Linux had reached version 1.0, representing a usable 861 production kernel. Level 2.0 was reached in 1996, and by 1998, with the862 kernel at 2.2.0 and available not only for x86 machines but for a844 production kernel. Level 2.0 was reached in 1996, and by 1998, with 845 the kernel at 2.2.0 and available not only for x86 machines but for a 863 846 variety of other machine architectures, GNU/Linux - the combination of 864 847 the Linux kernel and the much larger body of Project GNU components - 865 and Windows NT were the only two operating systems in the world gaining 866 market share. A Microsoft internal assessment of the situation leaked 867 in October 1998 and subsequently acknowledged by the company as genuine 868 concluded that "Linux represents a best-of-breed UNIX, that is trusted 869 in mission critical applications, and - due to it's [sic] open source 870 code - has a long term credibility which exceeds many other competitive 871 OS's." [<a href="#note21">21</a>] GNU/Linux systems are now used 872 throughout the world, operating everything from Web servers at major 873 electronic commerce sites to "ad-hoc supercomputer" clusters to the 874 network infrastructure of money-center banks. GNU/Linux is found on the 875 space shuttle, and running behind-the-scenes computers at (yes) 876 Microsoft. Industry evaluations of the comparative reliability of Unix 877 systems have repeatedly shown that Linux is far and away the most 878 stable and reliable Unix kernel, with a reliability exceeded only by 879 the GNU tools themselves. GNU/Linux not only out-performs commercial 848 and Windows NT were the only two operating systems in the world 849 gaining market share. A Microsoft internal assessment of the situation 850 leaked in October 1998 and subsequently acknowledged by the company as 851 genuine concluded that "Linux represents a best-of-breed UNIX, that is 852 trusted in mission critical applications, and - due to it's [sic] open 853 source code - has a long term credibility which exceeds many other 854 competitive OS's." <footnote> <para>21. This is a quotation from what 855 is known in the trade as the "Halloween memo," which can be found, as 856 annotated by Eric Raymond, to whom it was leaked, at <ulink 857 url="http://www.opensource.org/halloween/halloween1.html"> 858 http://www.opensource.org/halloween/halloween1.html</ulink>.</para></footnote> 859 GNU/Linux systems are now used throughout the world, operating 860 everything from Web servers at major electronic commerce sites to 861 "ad-hoc supercomputer" clusters to the network infrastructure of 862 money-center banks. GNU/Linux is found on the space shuttle, and 863 running behind-the-scenes computers at (yes) Microsoft. Industry 864 evaluations of the comparative reliability of Unix systems have 865 repeatedly shown that Linux is far and away the most stable and 866 reliable Unix kernel, with a reliability exceeded only by the GNU 867 tools themselves. GNU/Linux not only out-performs commercial 880 868 proprietary Unix versions for PCs in benchmarks, but is renowned for 881 its ability to run, undisturbed and uncomplaining, for months on end in882 high-volume high-stress environments without crashing.</para>869 its ability to run, undisturbed and uncomplaining, for months on end 870 in high-volume high-stress environments without crashing.</para> 883 871 884 872 <para>Other components of the free software movement have been equally … … 887 875 is the lingua franca for the programmers who build sophisticated Web 888 876 sites. Netscape Communications now distributes its Netscape 889 Communicator 5.0 browser as free software, under a close variant of the890 Free Software Foundation's General Public License. Major PC877 Communicator 5.0 browser as free software, under a close variant of 878 the Free Software Foundation's General Public License. Major PC 891 879 manufacturers, including IBM, have announced plans or are already 892 880 distributing GNU/Linux as a customer option on their top-of-the-line … … 899 887 you the next time your Windows PC crashes - the news at century's end 900 888 is unambiguous. The world's most profitable and powerful corporation 901 comes in a distant second, having excluded all but the real victor from 902 the race. Propertarianism joined to capitalist vigor destroyed 903 meaningful 904 commercial competition, but when it came to making good software, 905 anarchism won.</para> 889 comes in a distant second, having excluded all but the real victor 890 from the race. Propertarianism joined to capitalist vigor destroyed 891 meaningful commercial competition, but when it came to making good 892 software, anarchism won.</para> 893 894 906 895 </section> 907 896 <!--<para><img src="anarchism_files/quad.gif"></para><a name="m3"></a>--> … … 916 905 blamed for refusing to see. The facts proved that something was wrong 917 906 with the "incentives" metaphor that underprops conventional 918 intellectual property reasoning [<a href="#note22">22</a>]. But they 919 did more. They provided an initial glimpse into the future of human 920 creativity in a world of global interconnection, and it's not a world 921 made for dwarves and droids.</para> 922 923 <para>My argument, before we paused for refreshment in the real world, can 924 be summarized this way: Software - whether executable programs, music, 925 visual art, liturgy, weaponry, or what have you - consists of 926 bitstreams, which although essentially indistinguishable are treated by 927 a confusing multiplicity of legal categories. This multiplicity is 907 intellectual property reasoning <footnote> <para>22. As recently as 908 early 1994 a talented and technically competent (though Windows-using) 909 law and economics scholar at a major U.S. law school confidently 910 informed me that free software couldn't possibly exist, because no one 911 would have any incentive to make really sophisticated programs 912 requiring substantial investment of effort only to give them 913 away.</para> </footnote> . But they did more. They provided an initial 914 glimpse into the future of human creativity in a world of global 915 interconnection, and it's not a world made for dwarves and 916 droids.</para> 917 918 <para>My argument, before we paused for refreshment in the real world, 919 can be summarized this way: Software - whether executable programs, 920 music, visual art, liturgy, weaponry, or what have you - consists of 921 bitstreams, which although essentially indistinguishable are treated 922 by a confusing multiplicity of legal categories. This multiplicity is 928 923 unstable in the long term for reasons integral to the legal process. 929 924 The unstable diversity of rules is caused by the need to distinguish 930 among kinds of property interests in bitstreams. This need is primarily931 felt by those who stand to profit from the socially acceptable forms of 932 monopoly created by treating ideas as property. Those of us who are 933 worried about the social inequity and cultural hegemony created by this 934 intellectually unsatisfying and morally repugnant regime are shouted935 down. Those doing the shouting, the dwarves and the droids, believe 936 th at these property rules are937 necessary not from any overt yearning for life in Murdochworld - though938 a little luxurious co-optation is always welcome - but because the939 metaphor of incentives, which they take to be not just an image but an 940 argument, proves that these rules - despite their lamentable941 consequences - are necessary if we 942 are to make good software. The only way to continue to believe this is 943 to ignore the facts. At the center of the digital revolution, with the944 e xecutable bitstreams that make everything else possible, propertarian945 regimes not only do not make things better, they can make things 946 radically worse. Property concepts, whatever else may be wrong with 947 them, do not enable and havein fact retarded progress.</para>925 among kinds of property interests in bitstreams. This need is 926 primarily felt by those who stand to profit from the socially 927 acceptable forms of monopoly created by treating ideas as 928 property. Those of us who are worried about the social inequity and 929 cultural hegemony created by this intellectually unsatisfying and 930 morally repugnant regime are shouted down. Those doing the shouting, 931 the dwarves and the droids, believe that these property rules are 932 necessary not from any overt yearning for life in Murdochworld - 933 though a little luxurious co-optation is always welcome - but because 934 the metaphor of incentives, which they take to be not just an image 935 but an argument, proves that these rules - despite their lamentable 936 consequences - are necessary if we are to make good software. The only 937 way to continue to believe this is to ignore the facts. At the center 938 of the digital revolution, with the executable bitstreams that make 939 everything else possible, propertarian regimes not only do not make 940 things better, they can make things radically worse. Property 941 concepts, whatever else may be wrong with them, do not enable and have 942 in fact retarded progress.</para> 948 943 949 944 <para> 950 But what is this mysterious alternative? Free software exists, but what951 are its mechanisms, and how does it generalize towards a945 But what is this mysterious alternative? Free software exists, but 946 what are its mechanisms, and how does it generalize towards a 952 947 non-propertarian theory of the digital society?</para> 953 948 954 < /section>949 <!-- </section> --> 955 950 <section> 951 956 952 <title>The Legal Theory of Free Software</title> 957 953 958 <para>There is a myth, like most myths partially founded on reality, that959 computer programmers are all libertarians. Right-wing ones are954 <para>There is a myth, like most myths partially founded on reality, 955 that computer programmers are all libertarians. Right-wing ones are 960 956 capitalists, cleave to their stock options, and disdain taxes, unions, 961 957 and civil rights laws; left-wing ones hate the market and all 962 958 government, believe in strong encryption no matter how much nuclear 963 terrorism it may cause,[<a href="#note23">23</a>] and dislike Bill 964 Gates because he's rich. There is doubtless a foundation for this 965 belief. But the most significant difference between political thought 966 inside the digirati and outside it is that in the network society, 967 anarchism (or more properly, anti-possessive individualism) is a viable 968 political philosophy.</para> 969 970 <para>The center of the free software movement's success, and the greatest 971 achievement of Richard Stallman, is not a piece of computer code. The 972 success of free software, including the overwhelming success of 973 GNU/Linux, results from the ability to harness extraordinary quantities 974 of high-quality effort for projects of immense size and profound 975 complexity. And this ability in turn results from the legal context in 976 which the labor is mobilized. As a visionary designer Richard Stallman 977 created more than Emacs, GDB, or GNU. He created the 959 terrorism it may cause, <footnote> <para>23. This question too 960 deserves special scrutiny, encrusted as it is with special pleading on 961 the state-power side. See my brief essay <ulink 962 url="http://emoglen.law.columbia.edu/my_pubs/yu-encrypt.html">"<emphasis>So 963 Much for Savages</emphasis>: Navajo 1, Government 0 in Final Moments of 964 Play."</ulink></para> </footnote> and dislike Bill Gates because he's 965 rich. There is doubtless a foundation for this belief. But the most 966 significant difference between political thought inside the digirati 967 and outside it is that in the network society, anarchism (or more 968 properly, anti-possessive individualism) is a viable political 969 philosophy.</para> 970 971 <para>The center of the free software movement's success, and the 972 greatest achievement of Richard Stallman, is not a piece of computer 973 code. The success of free software, including the overwhelming success 974 of GNU/Linux, results from the ability to harness extraordinary 975 quantities of high-quality effort for projects of immense size and 976 profound complexity. And this ability in turn results from the legal 977 context in which the labor is mobilized. As a visionary designer 978 Richard Stallman created more than Emacs, GDB, or GNU. He created the 978 979 General Public License.</para> 979 <!-- --><center><img src="anarchism_files/mog3.gif" hspace="0" vspace="0"></center> --> 980 <para>The GPL,[<a href="#note24">24</a>] also known as the copyleft, uses 981 copyright, to paraphrase Toby Milsom, to counterfeit the phenomena of 982 anarchism. As the license preamble expresses it:</para> 980 981 <!-- <center><img src="anarchism_files/mog3.gif" hspace="0" 982 vspace="0"></center> --> <para>The GPL, <footnote> 983 <para>24. <emphasis>See</emphasis> <ulink 984 url="http://www.fsf.org/copyleft/gpl.txt">GNU General Public License, 985 Version 2, June 1991.</ulink></para> </footnote> also known as the 986 copyleft, uses copyright, to paraphrase Toby Milsom, to counterfeit 987 the phenomena of anarchism. As the license preamble expresses 988 it:</para> 983 989 984 990 <blockquote>When we speak of free software, we are referring to 985 freedom, not 986 price. Our General Public Licenses are designed to make sure that you 987 have the freedom to distribute copies of free software (and charge for 988 this service if you wish), that you receive source code or can get it 989 if you want it, that you can change the software or use pieces of it in 990 new free programs; and that you know you can dothese things.</blockquote>991 992 <blockquote>To protect your rights, we need to make restrictions 993 that forbid 994 anyone to deny you these rights or to ask you to surrender the rights. 995 These restrictions translate to certain responsibilities for you if you 996 distribute copies of the software, or if you modifyit.</blockquote>997 998 <blockquote>For example, if you distribute copies of such a 999 program, whether 1000 gratis or for a fee, you must give the recipients all the rights that 1001 you have. You must make sure that they, too, receive or can get the 1002 source code. And you must show them these terms so they know their 1003 rights.</blockquote> 1004 1005 <para>Many variants of this basic free software idea have been expressed 1006 in licenses of various kinds, as I have already indicated. The GPL is1007 different from the other ways of expressing these values in one crucial 1008 respect. Section 2 of the license providesin pertinent part:</para>1009 1010 <blockquote>You may modify your copy or copies of the Program or 1011 any portion of it, thus forming a work based on the Program, and copy 1012 and distribute such modifications or work ..., provided that you also 1013 meetall of these conditions: </blockquote>991 freedom, not price. Our General Public Licenses are designed to make 992 sure that you have the freedom to distribute copies of free software 993 (and charge for this service if you wish), that you receive source 994 code or can get it if you want it, that you can change the software or 995 use pieces of it in new free programs; and that you know you can do 996 these things.</blockquote> 997 998 <blockquote>To protect your rights, we need to make restrictions that 999 forbid anyone to deny you these rights or to ask you to surrender the 1000 rights. These restrictions translate to certain responsibilities for 1001 you if you distribute copies of the software, or if you modify 1002 it.</blockquote> 1003 1004 <blockquote>For example, if you distribute copies of such a program, 1005 whether gratis or for a fee, you must give the recipients all the 1006 rights that you have. You must make sure that they, too, receive or 1007 can get the source code. And you must show them these terms so they 1008 know their rights.</blockquote> 1009 1010 <para>Many variants of this basic free software idea have been 1011 expressed in licenses of various kinds, as I have already 1012 indicated. The GPL is different from the other ways of expressing 1013 these values in one crucial respect. Section 2 of the license provides 1014 in pertinent part:</para> 1015 1016 <blockquote>You may modify your copy or copies of the Program or any 1017 portion of it, thus forming a work based on the Program, and copy and 1018 distribute such modifications or work ..., provided that you also meet 1019 all of these conditions: </blockquote> 1014 1020 1015 1021 <blockquote>...</blockquote> 1016 1022 1017 <blockquote>b) You must cause any work that you distribute or 1018 publish, that in whole or in part contains or is derived from the 1019 Program or any part thereof, to be licensed as a whole at no charge to 1020 all third parties under the terms of this License.</blockquote> 1021 1022 <para>Section 2(b) of the GPL is sometimes called "restrictive," but its 1023 intention is liberating. It creates a commons, to which anyone may add 1024 but from which no one may subtract. Because of §2(b), each contributor 1025 to a GPL'd project is assured that she, and all other users, will be 1026 able to run, modify and redistribute the program indefinitely, that 1027 source code will always be available, and that, unlike commercial 1028 software, its longevity cannot be limited by the contingencies of the 1029 marketplace or the decisions of future 1030 developers. This "inheritance" of the GPL has sometimes been criticized 1031 as an example of the free software movement's anti-commercial bias. 1032 Nothing could be further from the truth. The effect of §2(b) is to make 1033 commercial distributors of free software better competitors against 1034 proprietary software businesses. For confirmation of this point, one 1035 can do no better than to ask the proprietary competitors. As the author 1036 of the Microsoft "Halloween" memorandum, Vinod Vallopillil, put it:</para> 1023 <blockquote>b) You must cause any work that you distribute or publish, 1024 that in whole or in part contains or is derived from the Program or 1025 any part thereof, to be licensed as a whole at no charge to all third 1026 parties under the terms of this License.</blockquote> 1027 1028 <para>Section 2(b) of the GPL is sometimes called "restrictive," but 1029 its intention is liberating. It creates a commons, to which anyone may 1030 add but from which no one may subtract. Because of §2(b), each 1031 contributor to a GPL'd project is assured that she, and all other 1032 users, will be able to run, modify and redistribute the program 1033 indefinitely, that source code will always be available, and that, 1034 unlike commercial software, its longevity cannot be limited by the 1035 contingencies of the marketplace or the decisions of future 1036 developers. This "inheritance" of the GPL has sometimes been 1037 criticized as an example of the free software movement's 1038 anti-commercial bias. Nothing could be further from the truth. The 1039 effect of §2(b) is to make commercial distributors of free software 1040 better competitors against proprietary software businesses. For 1041 confirmation of this point, one can do no better than to ask the 1042 proprietary competitors. As the author of the Microsoft "Halloween" 1043 memorandum, Vinod Vallopillil, put it:</para> 1037 1044 1038 1045 <blockquote>The GPL and its aversion to code forking reassures … … 1040 1047 subscribing to a particular commercial version of Linux.</blockquote> 1041 1048 1042 <blockquote>The "evolutionary dead-end" is the core of the software FUD 1043 argument [<a href="#note25">25</a>].</blockquote> 1044 1045 <para>Translated out of Microspeak, this means that the strategy by which 1046 the dominant proprietary manufacturer drives customers away from 1049 <blockquote>The "evolutionary dead-end" is the core of the software 1050 FUD argument <footnote> <para>25. <ulink 1051 url="http://www.opensource.org/halloween/halloween1.html">V. Vallopillil, 1052 Open Source Software: A (New?) Development Methodology.</ulink></para> 1053 </footnote> .</blockquote> 1054 1055 <para>Translated out of Microspeak, this means that the strategy by 1056 which the dominant proprietary manufacturer drives customers away from 1047 1057 competitors - by sowing fear, uncertainty and doubt about other 1048 1058 software's long-term viability - is ineffective with respect to GPL'd … … 1061 1071 others' work can be directly inherited. Hence the speed with which the 1062 1072 Linux kernel, for example, outgrew all of its proprietary 1063 predecessors. Because defection is impossible, free riders are welcome,1064 w hich resolves one of the central puzzles of collective action in a1065 propertarian social system.</para>1073 predecessors. Because defection is impossible, free riders are 1074 welcome, which resolves one of the central puzzles of collective 1075 action in a propertarian social system.</para> 1066 1076 1067 1077 <para>Non-propertarian production is also directly responsible for the … … 1070 1080 are shallow. In practical terms, access to source code means that if I 1071 1081 have a problem I can fix it. Because I can fix it, I almost never have 1072 to, because someone else has almost always seen it and fixed it first.</para> 1073 1074 <para>For the free software community, commitment to anarchist production 1075 may be a moral imperative; as Richard Stallman wrote, it's about 1076 freedom, not about price. Or it may be a matter of utility, seeking to 1077 produce better software than propertarian modes of work will allow. 1078 From the droid point of view, the copyleft represents the perversion of 1079 theory, but better than any other proposal over the past decades it 1080 resolves the problems of applying copyright to the inextricably merged 1081 functional and expressive features of computer 1082 to, because someone else has almost always seen it and fixed it 1083 first.</para> 1084 1085 <para>For the free software community, commitment to anarchist 1086 production may be a moral imperative; as Richard Stallman wrote, it's 1087 about freedom, not about price. Or it may be a matter of utility, 1088 seeking to produce better software than propertarian modes of work 1089 will allow. From the droid point of view, the copyleft represents the 1090 perversion of theory, but better than any other proposal over the past 1091 decades it resolves the problems of applying copyright to the 1092 inextricably merged functional and expressive features of computer 1082 1093 programs. That it produces better software than the alternative does 1083 1094 not imply that traditional copyright principles should now be … … 1089 1100 corporate owners of "cultural icons" and other assets who seek 1090 1101 ever-longer terms for corporate authors, converting the "limited Time" 1091 of Article I, §8 into a freehold have naturally been whistling music to 1092 the android ear [<a href="#note26">26</a>]. 1093 After all, who bought the droids their concert tickets? But as the 1094 propertarian position seeks to embed itself ever more strongly, in a 1095 conception of copyright liberated from the minor annoyances of limited 1096 terms and fair use, at the very center of our "cultural software" 1097 system, the anarchist counter-strike has begun. Worse is yet to befall 1098 the droids, as we shall see. But first, we must pay our final devoirs 1099 to the dwarves.</para> 1102 of Article I, §8 into a freehold have naturally been whistling music 1103 to the android ear <footnote> <para>26. The looming expiration of 1104 Mickey Mouse's ownership by Disney requires, from the point of view of 1105 that wealthy "campaign contributor," for example, an alteration of the 1106 general copyright law of the United States. See "Not Making it Any 1107 More? Vaporizing the Public Domain," in <emphasis>The Invisible 1108 Barbecue</emphasis>, forthcoming.</para> </footnote> . After all, who bought 1109 the droids their concert tickets? But as the propertarian position 1110 seeks to embed itself ever more strongly, in a conception of copyright 1111 liberated from the minor annoyances of limited terms and fair use, at 1112 the very center of our "cultural software" system, the anarchist 1113 counter-strike has begun. Worse is yet to befall the droids, as we 1114 shall see. But first, we must pay our final devoirs to the 1115 dwarves.</para> 1116 1100 1117 </section> 1101 1118 <section> 1102 1119 <title>Because It's There: Faraday's Magnet and Human Creativity</title> 1103 1120 1104 <para>After all, they deserve an answer. Why do people make free software 1105 if they don't get to profit? Two answers have usually been given. One 1106 is half-right and the other is wrong, but both are insufficiently 1107 simple.</para> 1108 1109 <para>The wrong answer is embedded in numerous references to "the hacker 1110 gift-exchange culture." This use of ethnographic jargon wandered into 1111 the field some years ago and became rapidly, if misleadingly, 1112 ubiquitous. It reminds us only that the economeretricians have so 1113 corrupted our thought processes that any form of non-market economic 1114 behavior seems equal to every other kind. But gift-exchange, like 1115 market barter, is a propertarian institution. Reciprocity is central to 1116 these symbolic enactments of mutual dependence, and if either the 1117 yams or the fish are short-weighted, trouble results. Free software, at 1118 the risk of repetition, is a commons: no reciprocity ritual is enacted 1119 there. A few people give away code that others sell, use, change, or 1120 borrow wholesale to lift out parts for something else. Notwithstanding 1121 the very large number of people (tens of thousands, at most) who have 1121 <para>After all, they deserve an answer. Why do people make free 1122 software if they don't get to profit? Two answers have usually been 1123 given. One is half-right and the other is wrong, but both are 1124 insufficiently simple.</para> 1125 1126 <para>The wrong answer is embedded in numerous references to "the 1127 hacker gift-exchange culture." This use of ethnographic jargon 1128 wandered into the field some years ago and became rapidly, if 1129 misleadingly, ubiquitous. It reminds us only that the 1130 economeretricians have so corrupted our thought processes that any 1131 form of non-market economic behavior seems equal to every other 1132 kind. But gift-exchange, like market barter, is a propertarian 1133 institution. Reciprocity is central to these symbolic enactments of 1134 mutual dependence, and if either the yams or the fish are 1135 short-weighted, trouble results. Free software, at the risk of 1136 repetition, is a commons: no reciprocity ritual is enacted there. A 1137 few people give away code that others sell, use, change, or borrow 1138 wholesale to lift out parts for something else. Notwithstanding the 1139 very large number of people (tens of thousands, at most) who have 1122 1140 contributed to GNU/Linux, this is orders of magnitude less than the 1123 number of users who make no contribution 1124 whatever [<a href="#note27">27</a>].</para> 1141 number of users who make no contribution whatever <footnote> 1142 <para>27. A recent industry estimate puts the number of Linux systems 1143 worldwide at 7.5 million. <emphasis>See</emphasis> Josh McHugh, 1998. <ulink 1144 url="http://www.forbes.com/forbes/98/0810/6203094s1.htm">"Linux: The 1145 Making of a Global Hack,"</ulink> <emphasis>Forbes</emphasis> (August 10). Because the 1146 software is freely obtainable throughout the Net, there is no simple 1147 way to assess actual usage.</para> </footnote>.</para> 1125 1148 1126 1149 <para>A part of the right answer is suggested by the claim that free … … 1128 1151 activity. Famous Linux hackers, the theory is, are known all over the 1129 1152 planet as programming deities. From this they derive either enhanced 1130 self-esteem or indirect material advancement [<a href="#note28">28</a>]. 1131 But the programming deities, much as they have contributed to free 1132 software, have not done the bulk of the work. Reputations, as Linus 1133 Torvalds himself has often pointed out, are made by willingly 1134 acknowledging that it was all done by someone else. And, as many 1135 observers have noted, the free software movement has also produced 1136 superlative documentation. Documentation-writing is not what hackers do 1137 to attain cool, and much of the documentation has been written by 1138 people who didn't write the code. Nor must we limit the indirect 1139 material advantages of authorship to increases in reputational capital. 1140 Most free software authors I know have day jobs in the technology 1153 self-esteem or indirect material advancement <footnote> <para>28. Eric 1154 Raymond is a partisan of the "ego boost" theory, to which he adds 1155 another faux-ethnographic comparison, of free software composition to 1156 the Kwakiutl potlatch. <emphasis>See</emphasis> Eric S. Raymond, 1998. <ulink 1157 url="http://firstmonday.org/issues/issue3_10/raymond/index.html">Homesteading 1158 the Noosphere.</ulink>. But the potlatch, certainly a form of status 1159 competition, is unlike free software for two fundamental reasons: it 1160 is essentially hierarchical, which free software is not, and, as we 1161 have known since Thorstein Veblen first called attention to its 1162 significance, it is a form of conspicuous waste. <emphasis>See</emphasis> Thorstein 1163 Veblen, 1967. <emphasis>The Theory of the Leisure Class.</emphasis> New York: 1164 Viking, p. 75. These are precisely the grounds which distinguish the 1165 anti-hierarchical and utilitiarian free software culture from its 1166 propertarian counterparts.</para></footnote>. But the programming 1167 deities, much as they have contributed to free software, have not done 1168 the bulk of the work. Reputations, as Linus Torvalds himself has often 1169 pointed out, are made by willingly acknowledging that it was all done 1170 by someone else. And, as many observers have noted, the free software 1171 movement has also produced superlative 1172 documentation. Documentation-writing is not what hackers do to attain 1173 cool, and much of the documentation has been written by people who 1174 didn't write the code. Nor must we limit the indirect material 1175 advantages of authorship to increases in reputational capital. Most 1176 free software authors I know have day jobs in the technology 1141 1177 industries, and the skills they hone in the more creative work they do 1142 1178 outside the market no doubt sometimes measurably enhance their value … … 1144 1180 became the basis of a whole new set of business models built around 1145 1181 commercial distribution of that which people can also get for nothing, 1146 an increasing number of people are 1147 specifically employed to write free software. But in order to be 1148 employable in the field, they must already have established themselves 1149 there. Plainly, then, this motive is present, but it isn't the whole 1150 explanation.</para> 1151 1152 <para>Indeed, the rest of the answer is just too simple to have received 1153 its due. The best way to understand is to follow the brief and 1154 otherwise unsung career of an initially-grudging free software author. 1155 Microsoft's Vinod Vallopillil, in the course of writing the competitive 1156 analysis of Linux that was leaked as the second of the famous 1157 "Halloween memoranda," bought and installed a Linux system on one of 1158 his office computers. He had trouble because the (commercial) 1182 an increasing number of people are specifically employed to write free 1183 software. But in order to be employable in the field, they must 1184 already have established themselves there. Plainly, then, this motive 1185 is present, but it isn't the whole explanation.</para> 1186 1187 <para>Indeed, the rest of the answer is just too simple to have 1188 received its due. The best way to understand is to follow the brief 1189 and otherwise unsung career of an initially-grudging free software 1190 author. Microsoft's Vinod Vallopillil, in the course of writing the 1191 competitive analysis of Linux that was leaked as the second of the 1192 famous "Halloween memoranda," bought and installed a Linux system on 1193 one of his office computers. He had trouble because the (commercial) 1159 1194 Linux distribution he installed did not contain a daemon to handle the 1160 1195 DHCP protocol for assignment of dynamic IP addresses. The result was … … 1162 1197 Microsoft Writing Style:</para> 1163 1198 1164 <blockquote>A small number of Web sites and FAQs later, I found 1165 an FTP site with a Linux DHCP client. The DHCP client was developed by 1166 an engineer employed by Fore Systems (as evidenced by his e-mail 1167 address; I believe, however, that it was developed in his own free 1168 time). A second set of documentation/manuals was written for the DHCP 1169 client by a hacker in <i>Hungary</i> which provided relatively simple instructions on how to install/load the client.</blockquote> 1199 <blockquote>A small number of Web sites and FAQs later, I found an FTP 1200 site with a Linux DHCP client. The DHCP client was developed by an 1201 engineer employed by Fore Systems (as evidenced by his e-mail address; 1202 I believe, however, that it was developed in his own free time). A 1203 second set of documentation/manuals was written for the DHCP client by 1204 a hacker in <emphasis>Hungary</emphasis> which provided relatively simple 1205 instructions on how to install/load the client.</blockquote> 1170 1206 1171 1207 <blockquote>I downloaded & uncompressed the client and typed two … … 1176 1212 <blockquote>Make Install -installed the binaries as a Linux Daemon</blockquote> 1177 1213 1178 <blockquote>Typing "DHCPCD" (for DHCP Client Daemon) on the 1179 command line triggered the DHCP discovery process and voila, I had IP 1180 networking running. 1181 </blockquote> 1182 1183 <blockquote>Since I had just downloaded the DHCP client code, on 1184 an impulse I played around a bit. Although the client wasn't as 1214 <blockquote>Typing "DHCPCD" (for DHCP Client Daemon) on the command 1215 line triggered the DHCP discovery process and voila, I had IP 1216 networking running. </blockquote> 1217 1218 <blockquote>Since I had just downloaded the DHCP client code, on an 1219 impulse I played around a bit. Although the client wasn't as 1185 1220 extensible as the DHCP client we are shipping in NT5 (for example, it 1186 1221 won't query for arbitrary options & store results), it was obvious … … 1188 1223 The full client consisted of about 2,600 lines of code.</blockquote> 1189 1224 1190 <blockquote>One example of esoteric, extended functionality that 1191 was clearly 1192 patched in by a third party was a set of routines to that would pad the 1193 DHCP request with host-specific strings required by Cable Modem / ADSL 1194 sites.</blockquote> 1195 1196 <blockquote>A few other steps were required to configure the 1197 DHCP client to 1198 auto-start and auto-configure my Ethernet interface on boot but these 1199 were documented in the client code and in the DHCP documentation from 1200 the Hungarian developer.</blockquote> 1225 <blockquote>One example of esoteric, extended functionality that was 1226 clearly patched in by a third party was a set of routines to that 1227 would pad the DHCP request with host-specific strings required by 1228 Cable Modem / ADSL sites.</blockquote> 1229 1230 <blockquote>A few other steps were required to configure the DHCP 1231 client to auto-start and auto-configure my Ethernet interface on boot 1232 but these were documented in the client code and in the DHCP 1233 documentation from the Hungarian developer.</blockquote> 1201 1234 1202 1235 <blockquote>I'm a poorly skilled UNIX programmer but it was … … 1205 1238 1206 1239 <blockquote>Additionally, due directly to GPL + having the full 1207 development 1208 environment in front of me, I was in a position where I could write up 1209 my changes and e-mail them out within a couple of hours (in contrast to 1210 how things like this would get done in NT). Engaging in that process 1211 would have prepared me for a larger, more ambitious Linux project in 1212 the future [<a href="#note29">29</a>].</blockquote> 1240 development environment in front of me, I was in a position where I 1241 could write up my changes and e-mail them out within a couple of hours 1242 (in contrast to how things like this would get done in NT). Engaging 1243 in that process would have prepared me for a larger, more ambitious 1244 Linux project in the future <footnote><para>29. Vinod Vallopillil, 1245 <ulink url="http://www.opensource.org/halloween/halloween2.html">Linux 1246 OS Competitive Analysis (Halloween II).</ulink> Note Vallopillil's 1247 surprise that a program written in California had been subsequently 1248 documented by a programmer in Hungary.</para> </footnote> 1249 .</blockquote> 1213 1250 1214 1251 <para>"The feeling was exhilarating and addictive." Stop the presses: 1215 1252 Microsoft experimentally verifies Moglen's Metaphorical Corollary to 1216 1253 Faraday's Law. Wrap the Internet around every brain on the planet and 1217 spin the planet. Software flows in the wires. It's an emergent property1218 of human minds to create. "Due directly to the GPL," as Vallopillil 1219 rightly pointed out, free software made available to him an 1220 exhilarating increase in his own creativity, of a kind not1254 spin the planet. Software flows in the wires. It's an emergent 1255 property of human minds to create. "Due directly to the GPL," as 1256 Vallopillil rightly pointed out, free software made available to him 1257 an exhilarating increase in his own creativity, of a kind not 1221 1258 achievable in his day job working for the Greatest Programming Company 1222 1259 on Earth. If only he had e-mailed that first addictive fix, who knows … … 1225 1262 <para>So, in the end, my dwarvish friends, it's just a human thing. 1226 1263 Rather like why Figaro sings, why Mozart wrote the music for him to 1227 sing to, and why we all make up new words: Because we can. Homo ludens, 1228 meet Homo faber. The social condition of global interconnection that we 1229 call the Internet makes it possible for all of us to be creative in new 1230 and previously undreamed-of ways. Unless we allow "ownership" to 1231 interfere. Repeat after me, ye dwarves and men: Resist 1232 the resistance!</para> 1264 sing to, and why we all make up new words: Because we can. Homo 1265 ludens, meet Homo faber. The social condition of global 1266 interconnection that we call the Internet makes it possible for all of 1267 us to be creative in new and previously undreamed-of ways. Unless we 1268 allow "ownership" to interfere. Repeat after me, ye dwarves and men: 1269 Resist the resistance!</para> 1270 1233 1271 </section> 1234 1272 <!--<para><img src="anarchism_files/quad.gif"></para><a name="m4"></a>--> … … 1237 1275 <title>IV. Their Lordships Die in the Dark?</title> 1238 1276 1239 <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>1240 1241 <para>Unlock the possibilities of human creativity by connecting everyone 1242 to 1243 everyone else? Get the ownership system out of the way so that we can1244 all add our voices to the choir, even if that means pasting our singing 1245 on top of the Mormon Tabernacle and sending the output to a friend? No 1246 o ne sitting slack-jawed in front of a televised mixture of violence and1247 imminent copulation carefully devised to heighten the young male 1248 eyeball's interest in a beer commercial? What will become of 1249 civilization? Or at least of copyright teachers?</para>1277 <para>For the IPdroid, fresh off the plane from a week at Bellagio 1278 paid for by Dreamworks SKG, it's enough to cause indigestion.</para> 1279 1280 <para>Unlock the possibilities of human creativity by connecting 1281 everyone to everyone else? Get the ownership system out of the way so 1282 that we can all add our voices to the choir, even if that means 1283 pasting our singing on top of the Mormon Tabernacle and sending the 1284 output to a friend? No one sitting slack-jawed in front of a televised 1285 mixture of violence and imminent copulation carefully devised to 1286 heighten the young male eyeball's interest in a beer commercial? What 1287 will become of civilization? Or at least of copyright teachers?</para> 1250 1288 1251 1289 <para>But perhaps this is premature. I've only been talking about … … 1260 1298 those DVD players - they're computers, aren't they?"</para> 1261 1299 1262 <para>In the digital society, it's all connected. We can't depend for the1263 long run on distinguishing one bitstream from another in order to1300 <para>In the digital society, it's all connected. We can't depend for 1301 the long run on distinguishing one bitstream from another in order to 1264 1302 figure out which rules apply. What happened to software is already 1265 1303 happening to music. Their recording industry lordships are now … … 1269 1307 Digital Music Initiative, will have collapsed long before the first 1270 1308 Internet President gets inaugurated, for simple technical reasons as 1271 obvious to those who know as the ones that dictated the triumph of free 1272 software [<a href="#note30">30</a>]. The anarchist revolution in music is different from the one in software <i>tout court</i>, 1273 but here too - as any teenager with an MP3 1274 collection of self-released music from unsigned artists can tell you - 1275 theory has been killed off by the facts. Whether you are Mick Jagger, 1276 or a great national artist from the third world looking for a global 1277 audience, or a garret-dweller reinventing music, the recording industry 1278 will soon have nothing to offer you that you can't get better for free. 1279 And music doesn't sound worse when distributed for free, pay what you 1280 want directly to the artist, and don't pay anything if you don't want 1281 to. Give it to your friends; they might like it.</para> 1309 obvious to those who know as the ones that dictated the triumph of 1310 free software <footnote> <para>30. See "They're Playing Our Song: The 1311 Day the Music Industry Died," in <emphasis>The Invisible Barbecue</emphasis>, 1312 forthcoming.</para> </footnote> . The anarchist revolution in music is 1313 different from the one in software <emphasis>tout court</emphasis>, but here too - 1314 as any teenager with an MP3 collection of self-released music from 1315 unsigned artists can tell you - theory has been killed off by the 1316 facts. Whether you are Mick Jagger, or a great national artist from 1317 the third world looking for a global audience, or a garret-dweller 1318 reinventing music, the recording industry will soon have nothing to 1319 offer you that you can't get better for free. And music doesn't sound 1320 worse when distributed for free, pay what you want directly to the 1321 artist, and don't pay anything if you don't want to. Give it to your 1322 friends; they might like it.</para> 1282 1323 1283 1324 <para> … … 1286 1327 course in Copyright for Droids, have a protectible property interest in 1287 1328 their expression of the news, even if not in the facts the news reports 1288 [<a href="#note31">31</a>]. 1329 1330 1331 <para>31. International News Service v. Associated 1332 Press, 248 1333 U.S. 215 (1918). With regard to the actual terse, purely functional 1334 expressions of breaking news actually at stake in the jostling among 1335 wire services, this was always a distinction only a droid could love.</para> 1336 1337 1338 . 1289 1339 So why are they now giving all their output away? Because in the world 1290 1340 of the Net, most news is commodity news. And the original … … 1301 1351 propertarians or the anarchists? We shall soon see.</para> 1302 1352 1303 <para>Oscar Wilde says somewhere that the problem with socialism is that 1304 it takes up too many evenings. The problems with anarchism as a social 1305 system are also about transaction costs. But the digital revolution 1306 alters two aspects of political economy that have been otherwise 1307 invariant throughout human history. All software has zero marginal cost 1308 in the world of the Net, while the costs of social coordination have 1309 been so far reduced as to permit the rapid formation and dissolution of 1310 large-scale and highly diverse social groupings entirely without 1311 geographic limitation [<a href="#note32">32</a>]. Such fundamental 1312 change in the material circumstances of life necessarily produces 1313 equally fundamental changes in culture. Think not? Tell it to the 1314 Iroquois. And of course such profound shifts in culture are threats to 1315 existing power relations. Think not? Ask the Chinese Communist Party. 1316 Or wait 25 years and see if you can find them for purposes of making 1317 the inquiry.</para> 1353 <para>Oscar Wilde says somewhere that the problem with socialism is 1354 that it takes up too many evenings. The problems with anarchism as a 1355 social system are also about transaction costs. But the digital 1356 revolution alters two aspects of political economy that have been 1357 otherwise invariant throughout human history. All software has zero 1358 marginal cost in the world of the Net, while the costs of social 1359 coordination have been so far reduced as to permit the rapid formation 1360 and dissolution of large-scale and highly diverse social groupings 1361 entirely without geographic limitation <footnote> <para>32. See "No 1362 Prodigal Son: The Political Theory of Universal Interconnection," in 1363 <emphasis>The Invisible Barbecue</emphasis>, forthcoming.</para> </footnote> . Such 1364 fundamental change in the material circumstances of life necessarily 1365 produces equally fundamental changes in culture. Think not? Tell it to 1366 the Iroquois. And of course such profound shifts in culture are 1367 threats to existing power relations. Think not? Ask the Chinese 1368 Communist Party. Or wait 25 years and see if you can find them for 1369 purposes of making the inquiry.</para> 1318 1370 1319 1371 <para>In this context, the obsolescence of the IPdroid is neither … … 1322 1374 profitably complicated rules for a world that no longer exists. But at 1323 1375 least it will have familiar company, recognizable from all those 1324 glittering parties in Davos, Hollywood, and Brussels. Our Media 1325 Lords are now at handigrips with fate, however much they may feel that 1326 theForce is with them. The rules about bitstreams are now of dubious1376 glittering parties in Davos, Hollywood, and Brussels. Our Media Lords 1377 are now at handigrips with fate, however much they may feel that the 1378 Force is with them. The rules about bitstreams are now of dubious 1327 1379 utility for maintaining power by co-opting human creativity. Seen 1328 1380 clearly in the light of fact, these Emperors have even fewer clothes 1329 1381 than the models they use to grab our eyeballs. Unless supported by 1330 1382 user-disabling technology, a culture of pervasive surveillance that 1331 permits every reader of every "property" to be 1332 logged and charged, and a smokescreen of droid-breath assuring each and 1333 every young person that human creativity would vanish without the 1334 benevolent aristocracy of BillG the Creator, Lord Murdoch of 1335 Everywhere, the Spielmeister and the Lord High Mouse, their reign is 1336 nearly done. But what's at stake is the control of the scarcest 1337 resource of all: our attention. Conscripting that makes all the money 1338 in the world in the digital economy, and the current lords of the 1339 earth will fight for it. Leagued against them are only the anarchists: 1340 nobodies, hippies, hobbyists, lovers, and artists. The resulting 1341 unequal contest is the great political and legal issue of our time. 1342 Aristocracy looks hard to beat, but that's how it looked in 1788 and 1343 1913 too. It is, as Chou En-Lai said about the meaning of the French 1344 Revolution, too soon to tell.</para> 1383 permits every reader of every "property" to be logged and charged, and 1384 a smokescreen of droid-breath assuring each and every young person 1385 that human creativity would vanish without the benevolent aristocracy 1386 of BillG the Creator, Lord Murdoch of Everywhere, the Spielmeister and 1387 the Lord High Mouse, their reign is nearly done. But what's at stake 1388 is the control of the scarcest resource of all: our 1389 attention. Conscripting that makes all the money in the world in the 1390 digital economy, and the current lords of the earth will fight for 1391 it. Leagued against them are only the anarchists: nobodies, hippies, 1392 hobbyists, lovers, and artists. The resulting unequal contest is the 1393 great political and legal issue of our time. Aristocracy looks hard 1394 to beat, but that's how it looked in 1788 and 1913 too. It is, as Chou 1395 En-Lai said about the meaning of the French Revolution, too soon to 1396 tell.</para> 1397 1345 1398 </section> 1346 1399 <section> … … 1348 1401 1349 1402 <para>Eben Moglen is Professor of Law & Legal History, Columbia Law School. 1350 E-mail: <a href="mailto:moglen@columbia.edu">Mail: moglen@columbia.edu</a></para> 1351 1352 <h2>Acknowledgments</h2> 1353 1354 <para>This paper was prepared for delivery at the Buchmann International 1355 Conference on Law, Technology and Information, at Tel Aviv University, 1356 May 1999; my thanks to the organizers for their kind invitation. I owe 1357 much as always to Pamela Karlan for her insight and encouragement. I 1358 especially wish to 1359 thank the programmers throughout the world who made free software 1360 possible.</para> 1361 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 1392 1393 <para><a name="note15"></a>15. I discuss the importance of PC software in this 1394 context, the evolution of "the market for eyeballs" and "the sponsored life" in other chapters of my forthcoming book, <i>The Invisible Barbecue</i>, of which this essay forms a part.</para> 1395 1396 <para><a name="note16"></a>16. This same pattern of ambivalence, in which 1397 bad programming leading to widespread instability in the new technology 1398 is simultaneously frightening and reassuring to technical incompetents, 1399 can be seen also in the primarily-American phenomenon of Y2K hysteria.</para> 1400 1401 <para><a name="note17"></a>17. The critical implications of this simple 1402 observation about our metaphors are worked out in "How Not to Think 1403 about 'The Internet'," in <i>The Invisible Barbecue</i>, forthcoming.</para> 1404 1405 <para><a name="note18"></a>18. Technical readers will again observe that this compresses developments occurring from 1969 through 1973.</para> 1406 1407 <para><a name="note19"></a>19. Operating systems, even Windows (which 1408 hides the fact from its users as thoroughly as possible), are actually 1409 collections of 1410 components, rather than undivided unities. Most of what an operating 1411 system does (manage file systems, control process execution, etc.) can 1412 be abstracted from the actual details of the computer hardware on which 1413 the operating system runs. Only a small inner core of the system must 1414 actually deal with the eccentric peculiarities of particular hardware. 1415 Once the operating system is written in a general language such as C, 1416 only that inner core, known in the trade as the kernel, will be highly 1417 specific to a particular computer architecture.</para> 1418 1419 <para><a name="note20"></a>20. A careful and creative analysis of how 1420 Torvalds made this process work, and what it implies for the social 1421 practices of creating software, was provided by Eric S. Raymond in his 1422 seminal 1997 paper, <ulink url="http://firstmonday.org/issues/issue3_3/raymond/index.html">The Cathedral and the Bazaar,</a> which itself played a significant role in the expansion of the free software idea.</para> 1423 1424 <para><a name="note21"></a>21. This is a quotation from what is known in 1425 the trade as the "Halloween memo," which can be found, as annotated by 1426 Eric Raymond, to whom it was leaked, at <ulink url="http://www.opensource.org/halloween/halloween1.html">http://www.opensource.org/halloween/halloween1.html</a>.</para> 1427 1428 <para><a name="note22"></a>22. As recently as early 1994 a talented and 1429 technically competent (though Windows-using) law and economics scholar 1430 at a major U.S. law school confidently informed me that free software 1431 couldn't possibly exist, because no one would have any incentive to 1432 make really sophisticated programs requiring substantial investment of 1433 effort only to give them away.</para> 1434 1435 <para><a name="note23"></a>23. This question too deserves special 1436 scrutiny, encrusted as it is with special pleading on the state-power 1437 side. See my brief essay <ulink url="http://emoglen.law.columbia.edu/my_pubs/yu-encrypt.html">"<i>So Much for Savages</i>: Navajo 1, Government 0 in Final Moments of Play."</a></para> 1438 1439 <para><a name="note24"></a>24. <i>See</i> <ulink url="http://www.fsf.org/copyleft/gpl.txt">GNU General Public License, Version 2, June 1991.</a></para> 1440 1441 <para><a name="note25"></a>25. <ulink url="http://www.opensource.org/halloween/halloween1.html">V. Vallopillil, Open Source Software: A (New?) Development Methodology.</a></para> 1442 1443 <para><a name="note26"></a>26. The looming expiration of Mickey Mouse's 1444 ownership by Disney requires, from the point of view of that wealthy 1445 "campaign contributor," for example, an alteration of the general 1446 copyright law of the United States. See "Not Making it Any More? 1447 Vaporizing the Public Domain," in <i>The Invisible Barbecue</i>, forthcoming.</para> 1448 1449 <para><a name="note27"></a>27. A recent industry estimate puts the number of Linux 1450 systems worldwide at 7.5 million. <i>See</i> Josh McHugh, 1998. <ulink url="http://www.forbes.com/forbes/98/0810/6203094s1.htm">"Linux: The Making of a Global Hack,"</a> <i>Forbes</i> (August 10). Because the software is freely obtainable throughout the Net, there is no simple way to assess actual usage.</para> 1451 1452 <para><a name="note28"></a>28. Eric Raymond is a partisan of the "ego 1453 boost" theory, to which he adds another faux-ethnographic comparison, 1454 of free software composition to the Kwakiutl potlatch. <i>See</i> Eric S. Raymond, 1998. <ulink url="http://firstmonday.org/issues/issue3_10/raymond/index.html">Homesteading the Noosphere.</a>. 1455 But the potlatch, certainly a form of status competition, is unlike 1456 free software for two fundamental reasons: it is essentially 1457 hierarchical, which free software is not, and, as we have known since 1458 Thorstein 1459 Veblen first called attention to its significance, it is a form of 1460 conspicuous waste. <i>See</i> Thorstein Veblen, 1967. <i>The Theory of the Leisure Class.</i> 1461 New York: Viking, p. 75. These are precisely the grounds which 1462 distinguish the anti-hierarchical and utilitiarian free software 1463 culture from its propertarian counterparts.</para> 1464 1465 <para><a name="note29"></a>29. Vinod Vallopillil, <ulink url="http://www.opensource.org/halloween/halloween2.html">Linux OS 1466 Competitive Analysis (Halloween 1467 II).</a> Note Vallopillil's surprise that a program written in California had been subsequently documented by a programmer in Hungary.</para> 1468 1469 <para><a name="note30"></a>30. See "They're Playing Our Song: The Day the Music 1470 Industry Died," in <i>The Invisible Barbecue</i>, forthcoming.</para> 1471 1472 <para><a name="note31"></a>31. International News Service v. Associated 1473 Press, 248 1474 U.S. 215 (1918). With regard to the actual terse, purely functional 1475 expressions of breaking news actually at stake in the jostling among 1476 wire services, this was always a distinction only a droid could love.</para> 1477 1478 <para><a name="note32"></a>32. See "No Prodigal Son: The Political Theory of Universal Interconnection," in <i>The Invisible Barbecue</i>, forthcoming.</para> 1479 1480 </blockquote> 1481 1482 <hr><para> 1483 1484 </para><blockquote> 1485 1486 <ulink url="http://firstmonday.org/issues/issue4_8/index.html"><img src="anarchism_files/contents.gif" alt="Contents" align="bottom" border="0"></ulink> 1487 1488 <ulink url="http://firstmonday.org/issues/index.html"><img src="anarchism_files/index.gif" alt="Index" border="0"></ulink> 1403 E-mail: <ulink url="mailto:moglen@columbia.edu">Mail: moglen@columbia.edu</ulink></para> 1404 1405 <title>Acknowledgments</title> 1406 1407 <para>This paper was prepared for delivery at the Buchmann 1408 International Conference on Law, Technology and Information, at Tel 1409 Aviv University, May 1999; my thanks to the organizers for their kind 1410 invitation. I owe much as always to Pamela Karlan for her insight and 1411 encouragement. I especially wish to thank the programmers throughout 1412 the world who made free software possible.</para> 1413 1414 1415 <blockquote> 1416 1417 <ulink url="http://firstmonday.org/issues/issue4_8/index.html"><!--<img src="anarchism_files/contents.gif" alt="Contents" align="bottom" border="0">--></ulink> 1418 1419 <ulink url="http://firstmonday.org/issues/index.html"><!--<img src="anarchism_files/index.gif" alt="Index" border="0">--></ulink> 1489 1420 1490 1421 <para>Copyright <ulink url="http://firstmonday.org/copy.html">©</ulink> 1999, First Monday</para></blockquote> 1491 1422 1492 1423 1493 </body></html> 1494 1424 </section> 1495 1425 </article>
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