Changeset 827


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Timestamp:
Oct 6, 2006, 10:13:58 PM (15 years ago)
Author:
Александър Шопов
Message:

anarchism: преформатиране, вече поне е XML. Още не е валиден DocBook? 4.2

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  • non-gtk/emoglen/anarchism.bg.xml

    r822 r827  
    3434-->
    3535
    36 <blockquote>
    3736
    3837<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
     40kernel has directed attention at the free software movement. This
     41paper shows why free software, far from being a marginal participant
     42in the commercial software market, is the vital first step in the
     43withering away of the intellectual property
     44system.</para></blockquote> </para>
     45
    4746<!-- Трябва да се генерира автоматично
    4847<h2>Contents</h2>
     
    5756<title>I. Software as Property: The Theoretical Paradox</title>
    5857
    59 <para><emphasis>SOFTWARE</emphasis>: no other word so thoroughly connotes the
    60 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 less
     58<para><emphasis>SOFTWARE</emphasis>: no other word so thoroughly
     59connotes the practical and social effects of the digital
     60revolution. Originally, the term was purely technical, and denoted the
     61parts of a computer system that, unlike "hardware," which was
     62unchangeably manufactured in system electronics, could be altered
     63freely. The first software amounted to the plug configuration of
     64cables or switches on the outside panels of an electronic device, but
     65as soon as linguistic means of altering computer behavior had been
     66developed, "software" mostly denoted the expressions in more or less
    6867human-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
     68behavior <footnote> <para>1. The distinction was only approximate in
     69its original context. By the late 1960's certain portions of the basic
    7370operation of hardware were controlled by programs digitally encoded in
    7471the electronics of computer equipment, not subject to change after the
     
    7875referred primarily to users' ability to alter symbols determining
    7976machine 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
     77widespread use of computers by technical incompetents, most
     78traditional software - application programs, operating systems,
     79numerical control instructions, and so fort - is, for most of its
     80users, firmware. It may be symbolic rather than electronic in its
     81construction, but they couldn't change it even if they wanted to,
     82which they often - impotently and resentfully - do. This "firming of
     83software" is a primary condition of the propertarian approach to the
     84legal organization of digital society, which is the subject of this
     85paper.</para> </footnote> .</para>
     86
     87<para>That was then and this is now. Technology based on the
     88manipulation of digitally-encoded information is now socially dominant
     89in most aspects of human culture in the "developed" societies
     90<footnote> <para>2. Within the present generation, the very conception
     91of social "development" is shifting away from possession of heavy
     92industry based on the internal-combustion engine to "post-industry"
     93based on digital communications and the related "knowledge-based"
     94forms of economic activity.</para></footnote>.  The movement from
     95analog to digital representation - in video, music, printing,
     96telecommunications, and even choreography, religious worship, and
     97sexual gratification - potentially turns all forms of human symbolic
     98activity into software, that is, modifiable instructions for
     99describing and controlling the behavior of machines. By a conceptual
     100back-formation characteristic of Western scientistic thinking, the
     101division between hardware and software is now being observed in the
     102natural or social world, and has become a new way to express the
     103conflict between ideas of determinism and free will, nature and
     104nurture, or genes and culture.  Our "hardware," genetically wired, is
     105our nature, and determines us. Our nurture is "software," establishes
     106our cultural programming, which is our comparative freedom. And so on,
     107for those reckless of blather.<footnote><para>3. Actually, a moment's
     108thought will reveal, our genes are firmware. Evolution made the
     109transition from analog to digital before the fossil record begins. But
     110we haven't possessed the power of controlled direct
     111modification. Until the day before yesterday. In the next century the
     112genes too will become software, and while I don't discuss the issue
     113further in this paper, the political consequences of unfreedom of
     114software in this context are even more disturbing than they are with
     115respect to cultural artifacts.</para></footnote> Thus "software"
     116becomes a viable metaphor for all symbolic activity, apparently
     117divorced from the technical context of the word's origin, despite the
     118unease raised in the technically competent when the term is thus
     119bandied about, eliding the conceptual significance of its
     120derivation.<footnote><para>4. <emphasis>See, e.g.,</emphasis>
     121J. M. Balkin, 1998. <emphasis>Cultural Software: a Theory of
     122Ideology.</emphasis> New Haven: Yale University
     123Press.</para></footnote></para>
     124
     125<para>But the widespread adoption of digital technology for use by
     126those who do not understand the principles of its operation, while it
     127apparently licenses the broad metaphoric employment of "software,"
     128does not in fact permit us to ignore the computers that are now
     129everywhere underneath our social skin. The movement from analog to
     130digital is more important for the structure of social and legal
     131relations than the more famous if less certain movement from status to
     132contract <footnote><para>5. <emphasis>See</emphasis> Henry Sumner
     133Maine, 1861. <emphasis>Ancient Law: Its Connection with the Early
     134History of Society, and Its Relation to Modern Idea.</emphasis> First
     135edition. London: J. Murray.</para></footnote>.  This is bad news for
     136those legal thinkers who do not understand it, which is why so much
     137pretending to understand now goes so floridly on.  Potentially,
     138however, our great transition is very good news for those who can turn
     139this new-found land into property for themselves. Which is why the
     140current "owners" of software so strongly support and encourage the
     141ignorance of everyone else. Unfortunately for them - for reasons
    160142familiar 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>
     143their traditional logic in this area - the trick won't work. This
     144paper explains why<footnote><para>6. In general I dislike the
     145intrusion of autobiography into scholarship. But because it is here my
     146sad duty and great pleasure to challenge the qualifications or
     147<emphasis>bona fides</emphasis> of just about everyone, I must enable
     148the assessment of my own. I was first exposed to the craft of computer
     149programming in 1971. I began earning wages as a commercial programmer
     150in 1973 - at the age of thirteen - and did so, in a variety of
     151computer services, engineering, and multinational technology
     152enterprises, until 1985. In 1975 I helped write one of the first
     153networked e-mail systems in the United States; from 1979 I was engaged
     154in research and development of advanced computer programming languages
     155at IBM. These activities made it economically possible for me to study
     156the arts of historical scholarship and legal cunning. My wages were
     157sufficient to pay my tuitions, but not - to anticipate an argument
     158that will be made by the econodwarves further along - because my
     159programs were the intellectual property of my employer, but rather
     160because they made the hardware my employer sold work better. Most of
     161what I wrote was effectively free software, as we shall see. Although
     162I subsequently made some inconsiderable technical contributions to the
     163actual free software movement this paper describes, my primary
     164activities on its behalf have been legal: I have served for the past
     165five years (without pay, naturally) as general counsel of the Free
     166Software Foundation.</para></footnote>.</para>
    191167
    192168<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>
     169familiar devices that surround us in the era of "cultural software." A
     170CD player is a good example. Its primary input is a bitstream read
     171from an optical storage disk. The bitstream describes music in terms
     172of measurements, taken 44,000 times per second, of frequency and
     173amplitude in each of two audio channels. The player's primary output
     174is analog audio signals <footnote><para>7. The player, of course, has
     175secondary inputs and outputs in control channels: buttons or infrared
     176remote control are input, and time and track display are
     177output.</para></footnote>. Like everything else in the digital world,
     178music as seen by a CD player is mere numeric information; a particular
     179recording of Beethoven's Ninth Symphony recorded by Arturo Toscanini
     180and the NBC Symphony Orchestra and Chorale is (to drop a few
     181insignificant digits) 1276749873424, while Glenn Gould's peculiarly
     182perverse last recording of the Goldberg Variations is (similarly
     183rather truncated) 767459083268.</para>
    214184
    215185<para>Oddly enough, these two numbers are "copyrighted." This means,
     
    220190"derivative work," for which a license is necessary.</para>
    221191
    222 <para>At the same time, a similar optical storage disk contains another
    223 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
     193another number, let us call it 7537489532. This one is an algorithm
     194for linear programming of large systems with multiple constraints,
     195useful for example if you want to make optimal use of your rolling
     196stock in running a freight railroad. This number (in the U.S.) is
     197"patented," which means you cannot derive 7537489532 for yourself, or
     198otherwise "practice the art" of the patent with respect to solving
     199linear programming problems no matter how you came by the idea,
     200including finding it out for yourself, unless you have a license from
     201the number's owner.</para>
    232202
    233203<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>
     204Microsoft Word. In addition to being "copyrighted," this one is a
     205trade secret.  That means if you take this number from Microsoft and
     206give it to anyone else you can be punished.</para>
     207
     208<para>Lastly, there's 588832161316. It doesn't do anything, it's just
     209the square of 767354. As far as I know, it isn't owned by anybody
     210under any of these rubrics. Yet.</para>
    242211
    243212<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 a
    245 sophisticated mind and a cultured life. It appreciates very much the
     213learned. It comes from a creature known as the IPdroid. The droid has
     214a sophisticated mind and a cultured life. It appreciates very much the
    246215elegant dinners at academic and ministerial conferences about the
    247216TRIPs, not to mention the privilege of frequent appearances on MSNBC.
    248217It wants you to know that I'm committing the mistake of confusing the
    249218embodiment 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 expressive
    252 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 railroads run on time. And the number representing the source code of
    257 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>
     219that's patented, stupid, just the Kamarkar algorithm. The number
     220<emphasis>can</emphasis> be copyrighted, because copyright covers the
     221expressive qualities of a particular tangible embodiment of an idea
     222(in which some functional properties may be mysteriously merged,
     223provided that they're not too merged), but not the algorithm. Whereas
     224the number isn't patentable, just the "teaching" of the number with
     225respect to making railroads run on time. And the number representing
     226the source code of Microsoft Word can be a trade secret, but if you
     227find it out for yourself (by performing arithmetic manipulation of
     228other numbers issued by Microsoft, for example, which is known as
     229"reverse engineering"), you're not going to be punished, at least if
     230you live in some parts of the United States.</para>
    262231
    263232<para>This droid, like other droids, is often right. The condition of
    264233being a droid is to know everything about something and nothing about
    265234anything 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>
     235established that the current intellectual property system contains
     236many intricate and ingenious features. The complexities combine to
     237allow professors to be erudite, Congressmen to get campaign
     238contributions, lawyers to wear nice suits and tassel loafers, and
     239Murdoch to be rich.  The complexities mostly evolved in an age of
     240industrial information distribution, when information was inscribed in
     241analog forms on physical objects that cost something significant to
     242make, move, and sell. When applied to digital information that moves
     243frictionlessly through the network and has zero marginal cost per
     244copy, everything still works, mostly, as long as you don't stop
     245squinting.</para>
    276246
    277247<para>But that wasn't what I was arguing about. I wanted to point out
    278248something else: that our world consists increasingly of nothing but
    279 large numbers (also known as bitstreams), and that - for reasons having
    280 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 by
     249large numbers (also known as bitstreams), and that - for reasons
     250having nothing to do with emergent properties of the numbers
     251themselves - the legal system is presently committed to treating
     252similar numbers radically differently. No one can tell, simply by
    283253looking at a number that is 100 million digits long, whether that
    284254number is subject to patent, copyright, or trade secret protection, or
     
    292262legal regimes based on sharp but unpredictable distinctions among
    293263similar objects are radically unstable. They fall apart over time
    294 because every instance of the rules' application is an invitation to at
    295 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 in
     264because every instance of the rules' application is an invitation to
     265at least one side to claim that instead of fitting in ideal category A
     266the particular object in dispute should be deemed to fit instead in
    297267category B, where the rules will be more favorable to the party making
    298268the claim. This game - about whether a typewriter should be deemed a
     
    302272require judges to distinguish among the identical, the game is
    303273infinitely 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
     274to the unbiased bystander <footnote><para>8. This is not an insight
     275unique to our present enterprise. A closely-related idea forms one of
     276the most important principles in the history of Anglo-American law,
     277perfectly put by Toby Milsom in the following terms:</para>
     278<blockquote><para>The life of the common law has been in the abuse of
    312279its elementary ideas. If the rules of property give what now seems an
    313280unjust 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>
     281materials of obligation you can counterfeit the phenomena of
     282property. If the rules of contract give what now seems an unjust
     283answer, try tort. ... If the rules of one tort, say deceit, give what
     284now seems an unjust answer, try another, try negligence. And so the
     285legal world goes round.</para></blockquote><para>S.F.C. Milsom,
     2861981. <emphasis>Historical Foundations of the Common Law.</emphasis>
     287Second edition. London: Butterworths, p. 6.</para> </footnote>.</para>
    326288
    327289<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>
     290legislators and judges they can afford - which for the new "owners" of
     291the digital world is quite a few - but the rules they buy aren't going
     292to work in the end. Sooner or later, the paradigms are going to
     293collapse. Of course, if later means two generations from now, the
     294distribution of wealth and power sanctified in the meantime may not be
     295reversible by any course less drastic than a <emphasis>bellum
     296servile</emphasis> of couch potatoes against media magnates. So
     297knowing that history isn't on Bill Gates' side isn't enough. We are
     298predicting the future in a very limited sense: we know that the
     299existing rules, which have yet the fervor of conventional belief
     300solidly enlisted behind them, are no longer meaningful. Parties will
     301use and abuse them freely until the mainstream of "respectable"
     302conservative opinion acknowledges their death, with uncertain
     303results. But realistic scholarship should already be turning its
     304attention to the clear need for new thoughtways.</para>
    344305
    345306<para>When we reach this point in the argument, we find ourselves
    346307contending with the other primary protagonist of educated idiocy: the
    347308econodwarf. 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,
     3101953. <emphasis>The Hedgehog and the Fox: An Essay on Tolstoy's View
     311of History.</emphasis> New York: Simon and Schuster.</para>
     312</footnote> but where the droid is committed to logic over experience,
     313the econodwarf specializes in an energetic and well-focused but
     314entirely erroneous view of human nature. According to the econodwarf's
     315vision, each human being is an individual possessing "incentives,"
     316which can be retrospectively unearthed by imagining the state of the
     317bank account at various times.  So in this instance the econodwarf
     318feels compelled to object that without the rules I am lampooning,
     319there would be no incentive to create the things the rules treat as
     320property: without the ability to exclude others from music there would
     321be no music, because no one could be sure of getting paid for creating
     322it.</para>
     323
     324<para>Music is not really our subject; the software I am considering
     325at the moment is the old kind: computer programs. But as he is
     326determined to deal at least cursorily with the subject, and because,
     327as we have seen, it is no longer really possible to distinguish
     328computer programs from music performances, a word or two should be
     329said. At least we can have the satisfaction of indulging in an
     330argument <emphasis>ad pygmeam</emphasis>.  When the econodwarf grows
     331rich, in my experience, he attends the opera.  But no matter how often
     332he hears <emphasis>Don Giovanni</emphasis> it never occurs to him that
     333Mozart's fate should, on his logic, have entirely discouraged
     334Beethoven, or that we have <emphasis>The Magic Flute</emphasis> even
     335though Mozart knew very well he wouldn't be paid. In fact,
     336<emphasis>The Magic Flute</emphasis>, <emphasis>St. Matthew's
     337Passion</emphasis>, and the motets of the wife-murderer Carlo Gesualdo
     338are all part of the centuries-long tradition of free software, in the
     339more general sense, which the econodwarf never quite
     340acknowledges.</para> <!--<center><img
     341src="anarchism_files/mog1.gif"></center> --> <para> The dwarf's basic
     342problem is that "incentives" is merely a metaphor, and as a metaphor
     343to describe human creative activity it's pretty crummy. I have said
     344this before, <footnote> <para>10. <emphasis>See</emphasis> <ulink
     345url="http://emoglen.law.columbia.edu/my_pubs/nospeech.html">The
     346Virtual Scholar and Network Liberation.</ulink></para> </footnote> but
     347the better metaphor arose on the day Michael Faraday first noticed
     348what happened when he wrapped a coil of wire around a magnet and spun
     349the magnet. Current flows in such a wire, but we don't ask what the
    392350incentive is for the electrons to leave home. We say that the current
    393351results from an emergent property of the system, which we call
     
    397355planet, software flows in the network. It's an emergent property of
    398356connected 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>
     357pleasure and to conquer their uneasy sense of being too alone. The
     358only question to ask is, what's the resistance of the network?
     359Moglen's Metaphorical Corollary to Ohm's Law states that the
     360resistance of the network is directly proportional to the field
     361strength of the "intellectual property" system. So the right answer to
     362the econodwarf is, resist the resistance.</para>
     363
     364<para>Of course, this is all very well in theory. "Resist the
     365resistance" sounds good, but we'd have a serious problem, theory
     366notwithstanding, if the dwarf were right and we found ourselves
     367under-producing good software because we didn't let people own it. But
     368dwarves and droids are formalists of different kinds, and the
     369advantage of realism is that if you start from the facts the facts are
     370always on your side. It turns out that treating software as property
     371makes bad software.</para>
    413372
    414373</section>
     
    416375<title>II. Software as Property: The Practical Problem</title>
    417376
    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
     378produces bad software, we need an introduction to the history of the
     379art. In fact, we'd better start with the word "art" itself. The
     380programming of computers combines determinate reasoning with literary
     381invention.</para>
     382
     383<para>At first glance, to be sure, source code appears to be a
     384non-literary form of composition <footnote><para>11. Some basic
     385vocabulary is essential. Digital computers actually execute numerical
     386instructions: bitstrings that contain information in the "native"
     387language created by the machine's designers. This is usually referred
     388to as "machine language." The machine languages of hardware are
     389designed for speed of execution at the hardware level, and are not
     390suitable for direct use by human beings. So among the central
     391components of a computer system are "programming languages," which
     392translate expressions convenient for humans into machine language. The
     393most common and relevant, but by no means the only, form of computer
     394language is a "compiler." The compiler performs static translation, so
     395that a file containing human-readable instructions, known as "source
     396code" results in the generation of one or more files of executable
     397machine language, known as "object code."</para> </footnote>.  The
     398primary desideratum in a computer program is that it works, that is to
     399say, performs according to specifications formally describing its
    445400outputs in terms of its inputs. At this level of generality, the
    446401functional content of programs is all that can be seen.</para>
    447402
    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 not
    458 widely grasped by non-programmers, who tend to think of computer
    459 programs as incomprehensible. They would be surprised to learn that the
    460 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 to
     403<para>But working computer programs exist as parts of computer
     404systems, which are interacting collections of hardware, software, and
     405human beings. The human components of a computer system include not
     406only the users, but also the (potentially different) persons who
     407maintain and improve the system. Source code not only communicates
     408with the computer that executes the program, through the intermediary
     409of the compiler that produces machine-language object code, but also
     410with other programmers.</para>
     411
     412<para>The function of source code in relation to other human beings is
     413not widely grasped by non-programmers, who tend to think of computer
     414programs as incomprehensible. They would be surprised to learn that
     415the bulk of information contained in most programs is, from the point
     416of view of the compiler or other language processor, "comment," that
     417is, non-functional material. The comments, of course, are addressed to
    463418others who may need to fix a problem or to alter or enhance the
    464419program's operation. In most programming languages, far more space is
     
    466421computer how to do it.</para>
    467422
    468 <para>The design of programming languages has always proceeded under the
    469 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- and
     423<para>The design of programming languages has always proceeded under
     424the dual requirements of complete specification for machine execution
     425and informative description for human readers. One might identify
     426three basic strategies in language design for approaching this dual
     427purpose.  The first, pursued initially with respect to the design of
     428languages specific to particular hardware products and collectively
     429known as "assemblers," essentially separated the human- and
    475430machine-communication portions of the program. Assembler instructions
    476431are very close relatives of machine-language instructions: in general,
     
    483438document the major data structures the program manipulates.</para>
    484439
    485 <para>A second approach, characteristically depicted by the language COBOL
    486 (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 of programmers who, while specialized workers, would not need to
     440<para>A second approach, characteristically depicted by the language
     441COBOL (which stood for "Common Business-Oriented Language"), was to
     442make the program itself look like a set of natural language
     443directions, written in a crabbed but theoretically human-readable
     444style. A line of COBOL code might say, for example "MULTIPLY PRICE
     445TIMES QUANTITY GIVING EXPANSION." At first, when the Pentagon and
     446industry experts began the joint design of COBOL in the early 1960's,
     447this seemed a promising approach. COBOL programs appeared largely
     448self-documenting, allowing both the development of work teams able to
     449collaborate on the creation of large programs, and the training of
     450programmers who, while specialized workers, would not need to
    496451understand 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 of execution were specified.</para>
     452the level of generality at which such programs documented themselves
     453was wrongly selected. A more formulaic and compressed expression of
     454operational detail "expansion = price x quantity," for example, was
     455better suited even to business and financial applications where the
     456readers and writers of programs were accustomed to mathematical
     457expression, while the processes of describing both data structures and
     458the larger operational context of the program were not rendered
     459unnecessary by the wordiness of the language in which the details of
     460execution were specified.</para>
    506461
    507462<para>Accordingly, language designers by the late 1960s began
     
    512467manipulated data abstractly, so that "A x B" might mean the
    513468multiplication 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
     469or any other data type capable of some process called
     470"multiplication," to be undertaken by the computer on the basis of the
     471context 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
     473research and development followed, largely in connection with a
    520474language called APL ("A Programming Language") and its successors. It
    521475was 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
     476will be suggested below.</para> </footnote> .  Because this approach
     477resulted in extremely concise programs, it was thought, the problem of
     478making code comprehensible to those who would later seek to modify or
     479repair it was simplified. By hiding the technical detail of computer
     480operation and emphasizing the algorithm, languages could be devised
     481that were better than English or other natural languages for the
     482expression of stepwise processes. Commentary would be not only
    532483unnecessary 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>
     484mathematical concepts in English do more to confuse than to
     485enlighten.</para>
     486
     487<title>How We Created the Microbrain Mess</title>
    536488
    537489<para>Thus the history of programming languages directly reflected the
     
    552504was an appropriate candidate for copyright treatment.</para>
    553505
    554 <para>True, so long as it is understood that the expressive component of
    555 software was present solely in order to facilitate the making of
     506<para>True, so long as it is understood that the expressive component
     507of software was present solely in order to facilitate the making of
    556508"derivative works." Were it not for the intention to facilitate
    557509alteration, the expressive elements of programs would be entirely
     
    560512the program's functional characteristics.</para>
    561513
    562 <para>The state of the computer industry throughout the 1960's and 1970's,
    563 when the grundnorms of sophisticated computer programming were
     514<para>The state of the computer industry throughout the 1960's and
     5151970's, when the grundnorms of sophisticated computer programming were
    564516established, concealed the tension implicit in this situation. In that
    565517period, hardware was expensive. Computers were increasingly large and
     
    567519building such an array of machines for general use was dominated, not
    568520to 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 the programs thus distributed. For a dominant hardware manufacturer,
    574 this strategy made sense: better programs sold more computers, which is
    575 where the profitability of the business rested.</para>
     521sure, it owned the programs its employees wrote, and it copyrighted
     522the source code. But it also distributed the programs - including the
     523source code - to its customers at no additional charge, and encouraged
     524them to make and share improvements or adaptations of the programs
     525thus distributed. For a dominant hardware manufacturer, this strategy
     526made sense: better programs sold more computers, which is where the
     527profitability of the business rested.</para>
    576528
    577529<para>Computers, in this period, tended to aggregate within particular
     
    580532on spools of magnetic tape. This distribution system tended to
    581533centralize software development, so that while IBM customers were free
    582 to make modifications and improvements to programs, those modifications
    583 were shared in the first instance with IBM, which then considered
    584 whether and in what way to incorporate those changes in the
     534to make modifications and improvements to programs, those
     535modifications were shared in the first instance with IBM, which then
     536considered whether and in what way to incorporate those changes in the
    585537centrally-developed and distributed version of the software. Thus in
    586538two important senses the best computer software in the world was free:
    587539it 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
     540both allowed and encouraged experimentation, change, and improvement
     541<footnote><para>13. This description elides some details. By the
     542mid-1970's IBM had acquired meaningful competition in the mainframe
    592543computer business, while the large-scale antitrust action brought
    593544against it by the U.S. government prompted the decision to "unbundle,"
     
    601552"almost free," that is, to discuss with users the changes they had
    602553proposed 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
     554cooperative development of the product for the benefit of all
     555users.</para> </footnote>.  That the software in question was IBM's
     556property under prevailing copyright law certainly established some
     557theoretical limits on users' ability to distribute their improvements
     558or adaptations to others, but in practice mainframe software was
     559cooperatively developed by the dominant hardware manufacturer and its
     560technically-sophisticated users, employing the manufacturer's
     561distribution resources to propagate the resulting improvements through
     562the user community. The right to exclude others, one of the most
     563important "sticks in the bundle" of property rights (in an image
     564beloved of the United States Supreme Court), was practically
     565unimportant, or even undesirable, at the heart of the software
     566business <footnote> <para>14. This description is highly compressed,
     567and will seem both overly simplified and unduly rosy to those who also
     568worked in the industry during this period of its
     569development. Copyright protection of computer software was a
     570controversial subject in the 1970's, leading to the famous CONTU
     571commission and its mildly pro-copyright recommendations of 1979. And
     572IBM seemed far less cooperative to its users at the time than this
    629573sketch makes out. But the most important element is the contrast with
    630574the world created by the PC, the Internet, and the dominance of
    631575Microsoft, 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>
     576and I am here concentrating on the features that express that
     577contrast.</para></footnote>.</para>
    636578
    637579<para>After 1980, everything was different. The world of mainframe
     
    639581And, as a contingency of the industry's development, the single most
    640582important 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
     583operating system, became the sole significant product of a company
     584that made no hardware. High-quality basic software ceased to be part
     585of the product-differentiation strategy of hardware
     586manufacturers. Instead, a firm with an overwhelming share of the
     587market, and with the near-monopolist's ordinary absence of interest in
     588fostering diversity, set the practices of the software industry. In
     589such a context, the right to exclude others from participation in the
     590product's formation became profoundly important. Microsoft's power in
     591the market rested entirely on its ownership of the Windows source
     592code.</para>
     593
     594<para>To Microsoft, others' making of "derivative works," otherwise
     595known as repairs and improvements, threatened the central asset of the
    653596business. Indeed, as subsequent judicial proceedings have tended to
    654597establish, Microsoft's strategy as a business was to find innovative
     
    657600maintenance of control over the basic operation of computers
    658601manufactured, 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>
     602and profitable leverage over the development of the culture <footnote>
     603<para>15. I discuss the importance of PC software in this context, the
     604evolution of "the market for eyeballs" and "the sponsored life" in
     605other chapters of my forthcoming book, <emphasis>The Invisible
     606Barbecue</emphasis>, of which this essay forms a part.</para>
     607</footnote>.; the right to exclude returned to center stage in the
     608concept of software as property.</para>
    660609
    661610<para>The result, so far as the quality of software was concerned, was
     
    672621face of Microsoft's market power was always in question.</para>
    673622
    674 <para>Without the constant interaction between users able to repair and
    675 improve and the operating system's manufacturer, the inevitable
     623<para>Without the constant interaction between users able to repair
     624and improve and the operating system's manufacturer, the inevitable
    676625deterioration of quality could not be arrested. But because the
    677626personal computer revolution expanded the number of users
     
    680629standards of stability, reliability, maintainability and effectiveness
    681630that had previously been established in the mainframe world, users of
    682 personal computers could hardly be expected to understand how badly, in
    683 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 of
     631personal computers could hardly be expected to understand how badly,
     632in relative terms, the monopoly's software functioned. As the power
     633and capacity of personal computers expanded rapidly, the defects of
     634the software were rendered less obvious amidst the general increase of
    686635productivity. Ordinary users, more than half afraid of the technology
    687636they almost completely did not understand, actually welcomed the
     
    689638transformations, with the concomitant destabilization of millions of
    690639careers, 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>
     640computer seemed to be able to run for more than a few consecutive
     641hours without crashing. Although it was frustrating to lose work in
     642progress each time an unnecessary failure occurred, the evident
     643fallibility of computers was intrinsically reassuring <footnote>
     644<para>16. This same pattern of ambivalence, in which bad programming
     645leading to widespread instability in the new technology is
     646simultaneously frightening and reassuring to technical incompetents,
     647can be seen also in the primarily-American phenomenon of Y2K
     648hysteria.</para> </footnote> .</para>
    695649
    696650<para>None of this was necessary. The low quality of personal computer
     
    699653A Lamarckian mode, in which improvements could be made anywhere, by
    700654anyone, 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
     655deficit, restoring to the world of the PC the stability and
     656reliability of the software made in the quasi-propertarian environment
     657of the mainframe era. But the Microsoft business model precluded
     658Lamarckian inheritance of software improvements. Copyright doctrine,
     659in general and as it applies to software in particular, biases the
     660world towards creationism; in this instance, the problem is that BillG
     661the Creator was far from infallible, and in fact he wasn't even
     662trying.</para> <!--<center><img src="anarchism_files/mog2.gif"
     663hspace="0" vspace="0"></center>--> <para>To make the irony more
     664severe, the growth of the network rendered the non-propertarian
     665alternative even more practical. What scholarly and popular writing
     666alike denominate as a thing ("the Internet") is actually the name of a
     667social condition: the fact that everyone in the network society is
     668connected directly, without intermediation, to everyone else
     669<footnote> <para>17. The critical implications of this simple
     670observation about our metaphors are worked out in "How Not to Think
     671about 'The Internet'," in <emphasis>The Invisible Barbecue</emphasis>,
     672forthcoming.</para> </footnote>. The global interconnection of
    715673networks eliminated the bottleneck that had required a centralized
    716674software manufacturer to rationalize and distribute the outcome of
    717675individual innovation in the era of the mainframe.</para>
    718676
    719 <para>And so, in one of history's little ironies, the global triumph of
    720 bad software in the age of the PC was reversed by a surprising
     677<para>And so, in one of history's little ironies, the global triumph
     678of bad software in the age of the PC was reversed by a surprising
    721679combination of forces: the social transformation initiated by the
    722680network, a long-discarded European theory of political economy, and a
    723681small band of programmers throughout the world mobilized by a single
    724682simple idea.</para>
     683
    725684</section>
    726685<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
     688Learned to Love the Bomb</title>
     689
     690<para>Long before the network of networks was a practical reality,
     691even before it was an aspiration, there was a desire for computers to
    731692operate 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 &amp;
    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
     693began as a reaction against propertarian software in the mainframe
     694era, and requires another brief historical digression.</para>
     695
     696<para>Even though IBM was the largest seller of general purpose
     697computers in the mainframe era, it was not the largest designer and
     698builder of such hardware. The telephone monopoly, American Telephone
     699&amp; Telegraph, was in fact larger than IBM, but it consumed its
     700products internally. And at the famous Bell Labs research arm of the
     701telephone monopoly, in the late 1960's, the developments in computer
     702languages previously described gave birth to an operating system
     703called Unix.</para>
     704
     705<para>The idea of Unix was to create a single, scalable operating
     706system to exist on all the computers, from small to large, that the
     707telephone monopoly made for itself. To achieve this goal meant writing
     708an operating system not in machine language, nor in an assembler whose
    747709linguistic form was integral to a particular hardware design, but in a
    748710more 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&amp;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&amp;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>
     711Bell Labs invention, called "C" <footnote> <para>18. Technical readers
     712will again observe that this compresses developments occurring from
     7131969 through 1973.</para> </footnote>. The C language became common,
     714even dominant, for many kinds of programming tasks, and by the late
     7151970's the Unix operating system written in that language had been
     716transferred (or "ported," in professional jargon) to computers made by
     717many manufacturers and of many designs.</para>
     718
     719<para>AT&amp;T distributed Unix widely, and because of the very design
     720of the operating system, it had to make that distribution in C source
     721code.  But AT&amp;T retained ownership of the source code and
     722compelled users to purchase licenses that prohibited redistribution
     723and the making of derivative works. Large computing centers, whether
     724industrial or academic, could afford to purchase such licenses, but
     725individuals could not, while the license restrictions prevented the
     726community of programmers who used Unix from improving it in an
     727evolutionary rather than episodic fashion. And as programmers
     728throughout the world began to aspire to and even expect a personal
     729computer revolution, the "unfree" status of Unix became a source of
     730concern.</para>
     731
     732<para>Between 1981 and 1984, one man envisioned a crusade to change
     733the situation. Richard M. Stallman, then an employee of MIT's
     734Artificial Intelligence Laboratory, conceived the project of
     735independent, collaborative redesign and implementation of an operating
     736system that would be true free software. In Stallman's phrase, free
     737software would be a matter of freedom, not of price. Anyone could
     738freely modify and redistribute such software, or sell it, subject only
     739to the restriction that he not try to reduce the rights of others to
     740whom he passed it along. In this way free software could become a
     741self-organizing project, in which no innovation would be lost through
     742proprietary exercises of rights. The system, Stallman decided, would
     743be called GNU, which stood (in an initial example of a taste for
     744recursive acronyms that has characterized free software ever since),
     745for "GNU's Not Unix."  Despite misgivings about the fundamental design
     746of Unix, as well as its terms of distribution, GNU was intended to
     747benefit from the wide if unfree source distribution of Unix. Stallman
     748began Project GNU by writing components of the eventual system that
     749were also designed to work without modification on existing Unix
     750systems. Development of the GNU tools could thus proceed directly in
     751the environment of university and other advanced computing centers
     752around the world.</para>
    789753
    790754<para>The scale of such a project was immense. Somehow, volunteer
     
    793757Stallman himself was the primary author of several fundamental tools.
    794758Others were contributed by small or large teams of programmers
    795 elsewhere, and assigned to Stallman's project or
    796 distributed directly. A few locations around the developing network
    797 became archives for the source code of these GNU components, and
    798 throughout the 1980's the GNU tools gained recognition and acceptance
    799 by Unix users throughout the world. The stability, reliability, and
     759elsewhere, and assigned to Stallman's project or distributed
     760directly. A few locations around the developing network became
     761archives for the source code of these GNU components, and throughout
     762the 1980's the GNU tools gained recognition and acceptance by Unix
     763users throughout the world. The stability, reliability, and
    800764maintainability of the GNU tools became a by-word, while Stallman's
    801765profound abilities as a designer continued to outpace, and provide
     
    804768and technical innovations and their social consequences.</para>
    805769
    806 <para>Project GNU, and the Free Software Foundation to which it gave birth
    807 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&amp;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 Linus Torvalds, began the project that completed the circuit and fully
     770<para>Project GNU, and the Free Software Foundation to which it gave
     771birth in 1985, were not the only source of free software
     772ideas. Several forms of copyright license designed to foster free or
     773partially free software began to develop in the academic community,
     774mostly around the Unix environment. The University of California at
     775Berkeley began the design and implementation of another version of
     776Unix for free distribution in the academic community. BSD Unix, as it
     777came to be known, also treated AT&amp;T's Unix as a design
     778standard. The code was broadly released and constituted a reservoir of
     779tools and techniques, but its license terms limited the range of its
     780application, while the elimination of hardware-specific proprietary
     781code from the distribution meant that no one could actually build a
     782working operating system for any particular computer from BSD. Other
     783university-based work also eventuated in quasi-free software; the
     784graphical user interface (or GUI) for Unix systems called X Windows,
     785for example, was created at MIT and distributed with source code on
     786terms permitting free modification. And in 1989-1990, an undergraduate
     787computer science student at the University of Helsinki, Linus
     788Torvalds, began the project that completed the circuit and fully
    825789energized the free software vision.</para>
    826790
    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
     792teaching tool for real life use. Andrew Tannenbaum's MINIX kernel
     793<footnote> <para>19. Operating systems, even Windows (which hides the
     794fact from its users as thoroughly as possible), are actually
     795collections of components, rather than undivided unities. Most of what
     796an operating system does (manage file systems, control process
     797execution, etc.) can be abstracted from the actual details of the
     798computer hardware on which the operating system runs. Only a small
     799inner core of the system must actually deal with the eccentric
     800peculiarities of particular hardware.  Once the operating system is
     801written in a general language such as C, only that inner core, known
     802in the trade as the kernel, will be highly specific to a particular
     803computer architecture.</para> </footnote> , was a staple of Operating
     804Systems courses, providing an example of basic solutions to basic
     805problems. Slowly, and at first without recognizing the intention,
     806Linus began turning the MINIX kernel into an actual kernel for Unix on
     807the Intel x86 processors, the engines that run the world's commodity
     808PCs. As Linus began developing this kernel, which he named Linux, he
     809realized that the best way to make his project work would be to adjust
     810his design decisions so that the existing GNU components would be
     811compatible with his kernel.</para>
     812
     813<para>The result of Torvalds' work was the release on the net in 1991
     814of a sketchy working model of a free software kernel for a Unix-like
    840815operating system for PCs, fully compatible with and designed
    841 convergently with the large and high-quality suite of system components
    842 created by Stallman's Project GNU and distributed by the Free Software
    843 Foundation. Because Torvalds chose to release the Linux kernel under
    844 the Free Software Foundation's General Public License, of which more
    845 below, the hundreds and eventually thousands of programmers
     816convergently with the large and high-quality suite of system
     817components created by Stallman's Project GNU and distributed by the
     818Free Software Foundation. Because Torvalds chose to release the Linux
     819kernel under the Free Software Foundation's General Public License, of
     820which more below, the hundreds and eventually thousands of programmers
    846821around the world who chose to contribute their effort towards the
    847822further development of the kernel could be sure that their efforts
    848 would result in permanently free software that no one could turn into a
    849 proprietary product. Everyone knew that everyone else would be able to
    850 test, improve, and redistribute their improvements. Torvalds accepted
    851 contributions freely, and with a genially effective style maintained
    852 overall direction without dampening enthusiasm. The development of the
    853 Linux kernel proved that the Internet made it possible to aggregate
    854 collections of programmers far larger than any
     823would result in permanently free software that no one could turn into
     824a proprietary product. Everyone knew that everyone else would be able
     825to test, improve, and redistribute their improvements. Torvalds
     826accepted contributions freely, and with a genially effective style
     827maintained overall direction without dampening enthusiasm. The
     828development of the Linux kernel proved that the Internet made it
     829possible to aggregate collections of programmers far larger than any
    855830commercial manufacturer could afford, joined almost non-hierarchically
    856831in a development project ultimately involving more than one million
    857832lines of computer code - a scale of collaboration among geographically
    858 dispersed unpaid volunteers previously unimaginable in human history [<a href="#note20">20</a>].</para>
     833dispersed unpaid volunteers previously unimaginable in human history
     834<footnote> <para>20. A careful and creative analysis of how Torvalds
     835made this process work, and what it implies for the social practices
     836of creating software, was provided by Eric S. Raymond in his seminal
     8371997 paper, <ulink
     838url="http://firstmonday.org/issues/issue3_3/raymond/index.html">The
     839Cathedral and the Bazaar,</ulink> which itself played a significant
     840role in the expansion of the free software idea.</para>
     841</footnote>.</para>
    859842
    860843<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 the
    862 kernel at 2.2.0 and available not only for x86 machines but for a
     844production kernel. Level 2.0 was reached in 1996, and by 1998, with
     845the kernel at 2.2.0 and available not only for x86 machines but for a
    863846variety of other machine architectures, GNU/Linux - the combination of
    864847the 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
     848and Windows NT were the only two operating systems in the world
     849gaining market share. A Microsoft internal assessment of the situation
     850leaked in October 1998 and subsequently acknowledged by the company as
     851genuine concluded that "Linux represents a best-of-breed UNIX, that is
     852trusted in mission critical applications, and - due to it's [sic] open
     853source code - has a long term credibility which exceeds many other
     854competitive OS's." <footnote> <para>21. This is a quotation from what
     855is known in the trade as the "Halloween memo," which can be found, as
     856annotated by Eric Raymond, to whom it was leaked, at <ulink
     857url="http://www.opensource.org/halloween/halloween1.html">
     858http://www.opensource.org/halloween/halloween1.html</ulink>.</para></footnote>
     859GNU/Linux systems are now used throughout the world, operating
     860everything from Web servers at major electronic commerce sites to
     861"ad-hoc supercomputer" clusters to the network infrastructure of
     862money-center banks. GNU/Linux is found on the space shuttle, and
     863running behind-the-scenes computers at (yes) Microsoft. Industry
     864evaluations of the comparative reliability of Unix systems have
     865repeatedly shown that Linux is far and away the most stable and
     866reliable Unix kernel, with a reliability exceeded only by the GNU
     867tools themselves. GNU/Linux not only out-performs commercial
    880868proprietary Unix versions for PCs in benchmarks, but is renowned for
    881 its ability to run, undisturbed and uncomplaining, for months on end in
    882 high-volume high-stress environments without crashing.</para>
     869its ability to run, undisturbed and uncomplaining, for months on end
     870in high-volume high-stress environments without crashing.</para>
    883871
    884872<para>Other components of the free software movement have been equally
     
    887875is the lingua franca for the programmers who build sophisticated Web
    888876sites. Netscape Communications now distributes its Netscape
    889 Communicator 5.0 browser as free software, under a close variant of the
    890 Free Software Foundation's General Public License. Major PC
     877Communicator 5.0 browser as free software, under a close variant of
     878the Free Software Foundation's General Public License. Major PC
    891879manufacturers, including IBM, have announced plans or are already
    892880distributing GNU/Linux as a customer option on their top-of-the-line
     
    899887you the next time your Windows PC crashes - the news at century's end
    900888is 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>
     889comes in a distant second, having excluded all but the real victor
     890from the race. Propertarianism joined to capitalist vigor destroyed
     891meaningful commercial competition, but when it came to making good
     892software, anarchism won.</para>
     893
     894
    906895</section>
    907896<!--<para><img src="anarchism_files/quad.gif"></para><a name="m3"></a>-->
     
    916905blamed for refusing to see. The facts proved that something was wrong
    917906with 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
     907intellectual property reasoning <footnote> <para>22. As recently as
     908early 1994 a talented and technically competent (though Windows-using)
     909law and economics scholar at a major U.S. law school confidently
     910informed me that free software couldn't possibly exist, because no one
     911would have any incentive to make really sophisticated programs
     912requiring substantial investment of effort only to give them
     913away.</para> </footnote> . But they did more. They provided an initial
     914glimpse into the future of human creativity in a world of global
     915interconnection, and it's not a world made for dwarves and
     916droids.</para>
     917
     918<para>My argument, before we paused for refreshment in the real world,
     919can be summarized this way: Software - whether executable programs,
     920music, visual art, liturgy, weaponry, or what have you - consists of
     921bitstreams, which although essentially indistinguishable are treated
     922by a confusing multiplicity of legal categories. This multiplicity is
    928923unstable in the long term for reasons integral to the legal process.
    929924The unstable diversity of rules is caused by the need to distinguish
    930 among kinds of property interests in bitstreams. This need is primarily
    931 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 shouted
    935 down. Those doing the shouting, the dwarves and the droids, believe
    936 that these property rules are
    937 necessary not from any overt yearning for life in Murdochworld - though
    938 a little luxurious co-optation is always welcome - but because the
    939 metaphor of incentives, which they take to be not just an image but an
    940 argument, proves that these rules - despite their lamentable
    941 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 the
    944 executable bitstreams that make everything else possible, propertarian
    945 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 have in fact retarded progress.</para>
     925among kinds of property interests in bitstreams. This need is
     926primarily felt by those who stand to profit from the socially
     927acceptable forms of monopoly created by treating ideas as
     928property. Those of us who are worried about the social inequity and
     929cultural hegemony created by this intellectually unsatisfying and
     930morally repugnant regime are shouted down. Those doing the shouting,
     931the dwarves and the droids, believe that these property rules are
     932necessary not from any overt yearning for life in Murdochworld -
     933though a little luxurious co-optation is always welcome - but because
     934the metaphor of incentives, which they take to be not just an image
     935but an argument, proves that these rules - despite their lamentable
     936consequences - are necessary if we are to make good software. The only
     937way to continue to believe this is to ignore the facts. At the center
     938of the digital revolution, with the executable bitstreams that make
     939everything else possible, propertarian regimes not only do not make
     940things better, they can make things radically worse. Property
     941concepts, whatever else may be wrong with them, do not enable and have
     942in fact retarded progress.</para>
    948943
    949944<para>
    950 But what is this mysterious alternative? Free software exists, but what
    951 are its mechanisms, and how does it generalize towards a
     945But what is this mysterious alternative? Free software exists, but
     946what are its mechanisms, and how does it generalize towards a
    952947non-propertarian theory of the digital society?</para>
    953948
    954 </section>
     949<!-- </section> -->
    955950<section>
     951
    956952<title>The Legal Theory of Free Software</title>
    957953
    958 <para>There is a myth, like most myths partially founded on reality, that
    959 computer programmers are all libertarians. Right-wing ones are
     954<para>There is a myth, like most myths partially founded on reality,
     955that computer programmers are all libertarians. Right-wing ones are
    960956capitalists, cleave to their stock options, and disdain taxes, unions,
    961957and civil rights laws; left-wing ones hate the market and all
    962958government, 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
     959terrorism it may cause, <footnote> <para>23. This question too
     960deserves special scrutiny, encrusted as it is with special pleading on
     961the state-power side. See my brief essay <ulink
     962url="http://emoglen.law.columbia.edu/my_pubs/yu-encrypt.html">"<emphasis>So
     963Much for Savages</emphasis>: Navajo 1, Government 0 in Final Moments of
     964Play."</ulink></para> </footnote> and dislike Bill Gates because he's
     965rich. There is doubtless a foundation for this belief. But the most
     966significant difference between political thought inside the digirati
     967and outside it is that in the network society, anarchism (or more
     968properly, anti-possessive individualism) is a viable political
     969philosophy.</para>
     970
     971<para>The center of the free software movement's success, and the
     972greatest achievement of Richard Stallman, is not a piece of computer
     973code. The success of free software, including the overwhelming success
     974of GNU/Linux, results from the ability to harness extraordinary
     975quantities of high-quality effort for projects of immense size and
     976profound complexity. And this ability in turn results from the legal
     977context in which the labor is mobilized. As a visionary designer
     978Richard Stallman created more than Emacs, GDB, or GNU. He created the
    978979General 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"
     982vspace="0"></center> --> <para>The GPL, <footnote>
     983<para>24. <emphasis>See</emphasis> <ulink
     984url="http://www.fsf.org/copyleft/gpl.txt">GNU General Public License,
     985Version 2, June 1991.</ulink></para> </footnote> also known as the
     986copyleft, uses copyright, to paraphrase Toby Milsom, to counterfeit
     987the phenomena of anarchism. As the license preamble expresses
     988it:</para>
    983989
    984990<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 do these 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 modify it.</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 is
    1007 different from the other ways of expressing these values in one crucial
    1008 respect. Section 2 of the license provides in 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 meet all of these conditions: </blockquote>
     991freedom, not price. Our General Public Licenses are designed to make
     992sure that you have the freedom to distribute copies of free software
     993(and charge for this service if you wish), that you receive source
     994code or can get it if you want it, that you can change the software or
     995use pieces of it in new free programs; and that you know you can do
     996these things.</blockquote>
     997
     998<blockquote>To protect your rights, we need to make restrictions that
     999forbid anyone to deny you these rights or to ask you to surrender the
     1000rights.  These restrictions translate to certain responsibilities for
     1001you if you distribute copies of the software, or if you modify
     1002it.</blockquote>
     1003
     1004<blockquote>For example, if you distribute copies of such a program,
     1005whether gratis or for a fee, you must give the recipients all the
     1006rights that you have. You must make sure that they, too, receive or
     1007can get the source code. And you must show them these terms so they
     1008know their rights.</blockquote>
     1009
     1010<para>Many variants of this basic free software idea have been
     1011expressed in licenses of various kinds, as I have already
     1012indicated. The GPL is different from the other ways of expressing
     1013these values in one crucial respect. Section 2 of the license provides
     1014in pertinent part:</para>
     1015
     1016<blockquote>You may modify your copy or copies of the Program or any
     1017portion of it, thus forming a work based on the Program, and copy and
     1018distribute such modifications or work ..., provided that you also meet
     1019all of these conditions: </blockquote>
    10141020
    10151021<blockquote>...</blockquote>
    10161022
    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,
     1024that in whole or in part contains or is derived from the Program or
     1025any part thereof, to be licensed as a whole at no charge to all third
     1026parties under the terms of this License.</blockquote>
     1027
     1028<para>Section 2(b) of the GPL is sometimes called "restrictive," but
     1029its intention is liberating. It creates a commons, to which anyone may
     1030add but from which no one may subtract. Because of §2(b), each
     1031contributor to a GPL'd project is assured that she, and all other
     1032users, will be able to run, modify and redistribute the program
     1033indefinitely, that source code will always be available, and that,
     1034unlike commercial software, its longevity cannot be limited by the
     1035contingencies of the marketplace or the decisions of future
     1036developers. This "inheritance" of the GPL has sometimes been
     1037criticized as an example of the free software movement's
     1038anti-commercial bias.  Nothing could be further from the truth. The
     1039effect of §2(b) is to make commercial distributors of free software
     1040better competitors against proprietary software businesses. For
     1041confirmation of this point, one can do no better than to ask the
     1042proprietary competitors. As the author of the Microsoft "Halloween"
     1043memorandum, Vinod Vallopillil, put it:</para>
    10371044
    10381045<blockquote>The GPL and its aversion to code forking reassures
     
    10401047subscribing to a particular commercial version of Linux.</blockquote>
    10411048
    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
     1050FUD argument <footnote> <para>25. <ulink
     1051url="http://www.opensource.org/halloween/halloween1.html">V. Vallopillil,
     1052Open Source Software: A (New?) Development Methodology.</ulink></para>
     1053</footnote> .</blockquote>
     1054
     1055<para>Translated out of Microspeak, this means that the strategy by
     1056which the dominant proprietary manufacturer drives customers away from
    10471057competitors - by sowing fear, uncertainty and doubt about other
    10481058software's long-term viability - is ineffective with respect to GPL'd
     
    10611071others' work can be directly inherited. Hence the speed with which the
    10621072Linux kernel, for example, outgrew all of its proprietary
    1063 predecessors. Because defection is impossible, free riders are welcome,
    1064 which resolves one of the central puzzles of collective action in a
    1065 propertarian social system.</para>
     1073predecessors. Because defection is impossible, free riders are
     1074welcome, which resolves one of the central puzzles of collective
     1075action in a propertarian social system.</para>
    10661076
    10671077<para>Non-propertarian production is also directly responsible for the
     
    10701080are shallow. In practical terms, access to source code means that if I
    10711081have 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
     1082to, because someone else has almost always seen it and fixed it
     1083first.</para>
     1084
     1085<para>For the free software community, commitment to anarchist
     1086production may be a moral imperative; as Richard Stallman wrote, it's
     1087about freedom, not about price. Or it may be a matter of utility,
     1088seeking to produce better software than propertarian modes of work
     1089will allow.  From the droid point of view, the copyleft represents the
     1090perversion of theory, but better than any other proposal over the past
     1091decades it resolves the problems of applying copyright to the
     1092inextricably merged functional and expressive features of computer
    10821093programs. That it produces better software than the alternative does
    10831094not imply that traditional copyright principles should now be
     
    10891100corporate owners of "cultural icons" and other assets who seek
    10901101ever-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>
     1102of Article I, §8 into a freehold have naturally been whistling music
     1103to the android ear <footnote> <para>26. The looming expiration of
     1104Mickey Mouse's ownership by Disney requires, from the point of view of
     1105that wealthy "campaign contributor," for example, an alteration of the
     1106general copyright law of the United States. See "Not Making it Any
     1107More?  Vaporizing the Public Domain," in <emphasis>The Invisible
     1108Barbecue</emphasis>, forthcoming.</para> </footnote> .  After all, who bought
     1109the droids their concert tickets? But as the propertarian position
     1110seeks to embed itself ever more strongly, in a conception of copyright
     1111liberated from the minor annoyances of limited terms and fair use, at
     1112the very center of our "cultural software" system, the anarchist
     1113counter-strike has begun. Worse is yet to befall the droids, as we
     1114shall see. But first, we must pay our final devoirs to the
     1115dwarves.</para>
     1116
    11001117</section>
    11011118<section>
    11021119<title>Because It's There: Faraday's Magnet and Human Creativity</title>
    11031120
    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
     1122software if they don't get to profit? Two answers have usually been
     1123given. One is half-right and the other is wrong, but both are
     1124insufficiently simple.</para>
     1125
     1126<para>The wrong answer is embedded in numerous references to "the
     1127hacker gift-exchange culture." This use of ethnographic jargon
     1128wandered into the field some years ago and became rapidly, if
     1129misleadingly, ubiquitous. It reminds us only that the
     1130economeretricians have so corrupted our thought processes that any
     1131form of non-market economic behavior seems equal to every other
     1132kind. But gift-exchange, like market barter, is a propertarian
     1133institution. Reciprocity is central to these symbolic enactments of
     1134mutual dependence, and if either the yams or the fish are
     1135short-weighted, trouble results. Free software, at the risk of
     1136repetition, is a commons: no reciprocity ritual is enacted there. A
     1137few people give away code that others sell, use, change, or borrow
     1138wholesale to lift out parts for something else. Notwithstanding the
     1139very large number of people (tens of thousands, at most) who have
    11221140contributed 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>
     1141number of users who make no contribution whatever <footnote>
     1142<para>27. A recent industry estimate puts the number of Linux systems
     1143worldwide at 7.5 million. <emphasis>See</emphasis> Josh McHugh, 1998. <ulink
     1144url="http://www.forbes.com/forbes/98/0810/6203094s1.htm">"Linux: The
     1145Making of a Global Hack,"</ulink> <emphasis>Forbes</emphasis> (August 10). Because the
     1146software is freely obtainable throughout the Net, there is no simple
     1147way to assess actual usage.</para> </footnote>.</para>
    11251148
    11261149<para>A part of the right answer is suggested by the claim that free
     
    11281151activity. Famous Linux hackers, the theory is, are known all over the
    11291152planet 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
     1153self-esteem or indirect material advancement <footnote> <para>28. Eric
     1154Raymond is a partisan of the "ego boost" theory, to which he adds
     1155another faux-ethnographic comparison, of free software composition to
     1156the Kwakiutl potlatch. <emphasis>See</emphasis> Eric S. Raymond, 1998. <ulink
     1157url="http://firstmonday.org/issues/issue3_10/raymond/index.html">Homesteading
     1158the Noosphere.</ulink>.  But the potlatch, certainly a form of status
     1159competition, is unlike free software for two fundamental reasons: it
     1160is essentially hierarchical, which free software is not, and, as we
     1161have known since Thorstein Veblen first called attention to its
     1162significance, it is a form of conspicuous waste. <emphasis>See</emphasis> Thorstein
     1163Veblen, 1967. <emphasis>The Theory of the Leisure Class.</emphasis> New York:
     1164Viking, p. 75. These are precisely the grounds which distinguish the
     1165anti-hierarchical and utilitiarian free software culture from its
     1166propertarian counterparts.</para></footnote>.  But the programming
     1167deities, much as they have contributed to free software, have not done
     1168the bulk of the work. Reputations, as Linus Torvalds himself has often
     1169pointed out, are made by willingly acknowledging that it was all done
     1170by someone else. And, as many observers have noted, the free software
     1171movement has also produced superlative
     1172documentation. Documentation-writing is not what hackers do to attain
     1173cool, and much of the documentation has been written by people who
     1174didn't write the code. Nor must we limit the indirect material
     1175advantages of authorship to increases in reputational capital.  Most
     1176free software authors I know have day jobs in the technology
    11411177industries, and the skills they hone in the more creative work they do
    11421178outside the market no doubt sometimes measurably enhance their value
     
    11441180became the basis of a whole new set of business models built around
    11451181commercial 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)
     1182an increasing number of people are specifically employed to write free
     1183software. But in order to be employable in the field, they must
     1184already have established themselves there. Plainly, then, this motive
     1185is present, but it isn't the whole explanation.</para>
     1186
     1187<para>Indeed, the rest of the answer is just too simple to have
     1188received its due. The best way to understand is to follow the brief
     1189and otherwise unsung career of an initially-grudging free software
     1190author.  Microsoft's Vinod Vallopillil, in the course of writing the
     1191competitive analysis of Linux that was leaked as the second of the
     1192famous "Halloween memoranda," bought and installed a Linux system on
     1193one of his office computers. He had trouble because the (commercial)
    11591194Linux distribution he installed did not contain a daemon to handle the
    11601195DHCP protocol for assignment of dynamic IP addresses. The result was
     
    11621197Microsoft Writing Style:</para>
    11631198
    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
     1200site with a Linux DHCP client. The DHCP client was developed by an
     1201engineer employed by Fore Systems (as evidenced by his e-mail address;
     1202I believe, however, that it was developed in his own free time). A
     1203second set of documentation/manuals was written for the DHCP client by
     1204a hacker in <emphasis>Hungary</emphasis> which provided relatively simple
     1205instructions on how to install/load the client.</blockquote>
    11701206
    11711207<blockquote>I downloaded &amp; uncompressed the client and typed two
     
    11761212<blockquote>Make Install -installed the binaries as a Linux Daemon</blockquote>
    11771213
    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
     1215line triggered the DHCP discovery process and voila, I had IP
     1216networking running.  </blockquote>
     1217
     1218<blockquote>Since I had just downloaded the DHCP client code, on an
     1219impulse I played around a bit. Although the client wasn't as
    11851220extensible as the DHCP client we are shipping in NT5 (for example, it
    11861221won't query for arbitrary options &amp; store results), it was obvious
     
    11881223The full client consisted of about 2,600 lines of code.</blockquote>
    11891224
    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
     1226clearly patched in by a third party was a set of routines to that
     1227would pad the DHCP request with host-specific strings required by
     1228Cable Modem / ADSL sites.</blockquote>
     1229
     1230<blockquote>A few other steps were required to configure the DHCP
     1231client to auto-start and auto-configure my Ethernet interface on boot
     1232but these were documented in the client code and in the DHCP
     1233documentation from the Hungarian developer.</blockquote>
    12011234
    12021235<blockquote>I'm a poorly skilled UNIX programmer but it was
     
    12051238
    12061239<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>
     1240development environment in front of me, I was in a position where I
     1241could 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
     1243in that process would have prepared me for a larger, more ambitious
     1244Linux project in the future <footnote><para>29. Vinod Vallopillil,
     1245<ulink url="http://www.opensource.org/halloween/halloween2.html">Linux
     1246OS Competitive Analysis (Halloween II).</ulink> Note Vallopillil's
     1247surprise that a program written in California had been subsequently
     1248documented by a programmer in Hungary.</para> </footnote>
     1249.</blockquote>
    12131250
    12141251<para>"The feeling was exhilarating and addictive." Stop the presses:
    12151252Microsoft experimentally verifies Moglen's Metaphorical Corollary to
    12161253Faraday'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 property
    1218 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 not
     1254spin the planet. Software flows in the wires. It's an emergent
     1255property of human minds to create. "Due directly to the GPL," as
     1256Vallopillil rightly pointed out, free software made available to him
     1257an exhilarating increase in his own creativity, of a kind not
    12211258achievable in his day job working for the Greatest Programming Company
    12221259on Earth. If only he had e-mailed that first addictive fix, who knows
     
    12251262<para>So, in the end, my dwarvish friends, it's just a human thing.
    12261263Rather 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>
     1264sing to, and why we all make up new words: Because we can. Homo
     1265ludens, meet Homo faber. The social condition of global
     1266interconnection that we call the Internet makes it possible for all of
     1267us to be creative in new and previously undreamed-of ways. Unless we
     1268allow "ownership" to interfere. Repeat after me, ye dwarves and men:
     1269Resist the resistance!</para>
     1270
    12331271</section>
    12341272<!--<para><img src="anarchism_files/quad.gif"></para><a name="m4"></a>-->
     
    12371275<title>IV. Their Lordships Die in the Dark?</title>
    12381276
    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 can
    1244 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 one sitting slack-jawed in front of a televised mixture of violence and
    1247 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
     1278paid for by Dreamworks SKG, it's enough to cause indigestion.</para>
     1279
     1280<para>Unlock the possibilities of human creativity by connecting
     1281everyone to everyone else? Get the ownership system out of the way so
     1282that we can all add our voices to the choir, even if that means
     1283pasting our singing on top of the Mormon Tabernacle and sending the
     1284output to a friend? No one sitting slack-jawed in front of a televised
     1285mixture of violence and imminent copulation carefully devised to
     1286heighten the young male eyeball's interest in a beer commercial? What
     1287will become of civilization? Or at least of copyright teachers?</para>
    12501288
    12511289<para>But perhaps this is premature. I've only been talking about
     
    12601298those DVD players - they're computers, aren't they?"</para>
    12611299
    1262 <para>In the digital society, it's all connected. We can't depend for the
    1263 long run on distinguishing one bitstream from another in order to
     1300<para>In the digital society, it's all connected. We can't depend for
     1301the long run on distinguishing one bitstream from another in order to
    12641302figure out which rules apply. What happened to software is already
    12651303happening to music. Their recording industry lordships are now
     
    12691307Digital Music Initiative, will have collapsed long before the first
    12701308Internet 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>
     1309obvious to those who know as the ones that dictated the triumph of
     1310free software <footnote> <para>30. See "They're Playing Our Song: The
     1311Day the Music Industry Died," in <emphasis>The Invisible Barbecue</emphasis>,
     1312forthcoming.</para> </footnote> . The anarchist revolution in music is
     1313different from the one in software <emphasis>tout court</emphasis>, but here too -
     1314as any teenager with an MP3 collection of self-released music from
     1315unsigned artists can tell you - theory has been killed off by the
     1316facts. Whether you are Mick Jagger, or a great national artist from
     1317the third world looking for a global audience, or a garret-dweller
     1318reinventing music, the recording industry will soon have nothing to
     1319offer you that you can't get better for free.  And music doesn't sound
     1320worse when distributed for free, pay what you want directly to the
     1321artist, and don't pay anything if you don't want to. Give it to your
     1322friends; they might like it.</para>
    12821323
    12831324<para>
     
    12861327course in Copyright for Droids, have a protectible property interest in
    12871328their 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
     1332Press, 248
     1333U.S. 215 (1918). With regard to the actual terse, purely functional
     1334expressions of breaking news actually at stake in the jostling among
     1335wire services, this was always a distinction only a droid could love.</para>
     1336
     1337
     1338.
    12891339So why are they now giving all their output away? Because in the world
    12901340of the Net, most news is commodity news. And the original
     
    13011351propertarians or the anarchists? We shall soon see.</para>
    13021352
    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
     1354that it takes up too many evenings. The problems with anarchism as a
     1355social system are also about transaction costs. But the digital
     1356revolution alters two aspects of political economy that have been
     1357otherwise invariant throughout human history. All software has zero
     1358marginal cost in the world of the Net, while the costs of social
     1359coordination have been so far reduced as to permit the rapid formation
     1360and dissolution of large-scale and highly diverse social groupings
     1361entirely without geographic limitation <footnote> <para>32. See "No
     1362Prodigal Son: The Political Theory of Universal Interconnection," in
     1363<emphasis>The Invisible Barbecue</emphasis>, forthcoming.</para> </footnote> . Such
     1364fundamental change in the material circumstances of life necessarily
     1365produces equally fundamental changes in culture. Think not? Tell it to
     1366the Iroquois. And of course such profound shifts in culture are
     1367threats to existing power relations. Think not? Ask the Chinese
     1368Communist Party.  Or wait 25 years and see if you can find them for
     1369purposes of making the inquiry.</para>
    13181370
    13191371<para>In this context, the obsolescence of the IPdroid is neither
     
    13221374profitably complicated rules for a world that no longer exists. But at
    13231375least 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 the Force is with them. The rules about bitstreams are now of dubious
     1376glittering parties in Davos, Hollywood, and Brussels. Our Media Lords
     1377are now at handigrips with fate, however much they may feel that the
     1378Force is with them. The rules about bitstreams are now of dubious
    13271379utility for maintaining power by co-opting human creativity. Seen
    13281380clearly in the light of fact, these Emperors have even fewer clothes
    13291381than the models they use to grab our eyeballs. Unless supported by
    13301382user-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>
     1383permits every reader of every "property" to be logged and charged, and
     1384a smokescreen of droid-breath assuring each and every young person
     1385that human creativity would vanish without the benevolent aristocracy
     1386of BillG the Creator, Lord Murdoch of Everywhere, the Spielmeister and
     1387the Lord High Mouse, their reign is nearly done. But what's at stake
     1388is the control of the scarcest resource of all: our
     1389attention. Conscripting that makes all the money in the world in the
     1390digital economy, and the current lords of the earth will fight for
     1391it. Leagued against them are only the anarchists: nobodies, hippies,
     1392hobbyists, lovers, and artists. The resulting unequal contest is the
     1393great political and legal issue of our time.  Aristocracy looks hard
     1394to beat, but that's how it looked in 1788 and 1913 too. It is, as Chou
     1395En-Lai said about the meaning of the French Revolution, too soon to
     1396tell.</para>
     1397
    13451398</section>
    13461399<section>
     
    13481401
    13491402<para>Eben Moglen is Professor of Law &amp; 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>
     1403E-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
     1408International Conference on Law, Technology and Information, at Tel
     1409Aviv University, May 1999; my thanks to the organizers for their kind
     1410invitation. I owe much as always to Pamela Karlan for her insight and
     1411encouragement. I especially wish to thank the programmers throughout
     1412the 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>
    14891420
    14901421<para>Copyright <ulink url="http://firstmonday.org/copy.html">©</ulink> 1999, First Monday</para></blockquote>
    14911422
    14921423
    1493 </body></html>
    1494 
     1424</section>
    14951425</article>
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