Dangerous anti-IP terminology and philosophy
Posted Aug 25, 2005 7:27 UTC (Thu) by FlorianMueller
Parent article: On the defense of piracy enablers
In various postings here, I've seen a terminology for, and an approach to, IPRs that is problematic to say the least.
I've been criticized by an Ericsson patent attorney after a debate for referring to what he thinks is legitimate ownership as a "monopoly". I disagreed with him because many software patents are bound to be inadvertently "infringed" upon during their 20-year term.
However, that's exactly the difference between a patent and copyright. It's exactly why maddog told people that they shouldn't have a problem with the Linux mark because they can always sell software under another name, but you can't develop software that matches the broad and general description in a patent.
For copyright law in connection with software or literature, the notion of a monopoly is biased communist rhetoric that puts the collective above the individual creator. You don't infringe upon copyrights inadvertently in our field. It may happen in music where a rather short sequence of notes is protected, and even there it's extremely rare. However, in our field, you know when you breach a copyright. The chance of someone coincidentally writing a game server that happens to have the battle.net protocol is far lower than that of winning every lottery in the world during someone's entire lifetime. Therefore, it's not a monpoly. It's legitimate ownership. That legitimate ownership can be restricted if it's in the public interest, but not without a strong justficiation that outweighs other considerations.
If the founding fathers used the term "monopoly" because the creation of IPRs was a new thing at the time, then that was a different historical situation (more about that further below). Today it's ridiculous to call copyright a monopoly because even though it it in a systematic sense, that term is pejorative in this context.
Interpretation of Article I, § 8 of the United States Constitution:
The promotion of progress in science and the userful arts can, in a free market economy, not be viewed as a contradiction to, or something detached from, commercial interests. In fact, a profit motive is a major reason for some forms of progress, while it's none (or a hinderance) to others.
In case of computer games, it's very clear to any unbiased person that cinematic games are developed by huge teams of full-time people with a substantial budget. Open source has proven that a more secure operating system and web browser, and an office suite that has the entire functionality that 98% of all users need, can be developed under an alternative model. For the rich Blizzard-style computer games that are like cinematic productions, it's clear that the open-source approach doesn't work.
Negative angle on IPRs as a necessary evil:
It's been said and implied over and over again that an author should only get certain rights to his creations if it can't be avoided (because otherwise he'll go out of business). That's why it's called a "monopoly" even when it doesn't harm any innocent person, and that's why people try to give the U.S. Constitution that unreasonable anti-creator angle.
Guys, wake up: You live in the 21st century. Lawmakers and judges are the ones who decide, not the EFF or FSF (or myself, for that matter). Centuries ago, when IPRs were introduced, they had to be justified.
At this point in history, IPRs are considered a major success story, the foundation of the modern economy, and also the only major area in which the U.S. has a trade surplus vs. Europe and Asia. There is now growing awareness that IPRs may in some peripheral areas run counter to their purpose, but in general, their importance and legitimacy is beyond reasonable doubt.
About 100 years ago, our great-great-grandmothers had to fight for their suffrage. Today, women's suffrage is unquestionable in the western societies. If you now want to restrict it, you have an uphill battle and a major burden of proof (unless you go to a country with a different cultural background). The challenge to say that long-standing IPRs such as copyright require much justification is similarly steep as trying to deny women the right to vote. Politicians and judges alike, with a very few exceptions, share the absolutely firm belief that an author is entitled to a variety of things that some of you here may not like. They don't have to change the U.S. Constitution because that school of thought perfectly fits within it. The meaning of general principles in constitutions is dynamic per se.
Some here quote from a free software ideology as if that were an ethical or even legal standard for all software. It's still an author's choice whether he reserves all rights that he possibly can under the law (which is what Blizzard do and what I do) or only some (such as under the Creative Commons license or GPL) or as many as possible (such as under the BSD).
You can't force Blizzard to allow interference with its software that you are perfectly allowed to do with an open-source program. I won't open-source my program code either, at least not until it's very outdated (like John Carmack does with his obsolete Quake versions, which I think is great and visionary). There's empirical evidence that the best game developers in the world don't do open source because they have a profit motive (which doesn't mean it's the only motive, but it's a major one). In other application categories, you can combine a profit motive with an open-source model (Red Hat, MySQL AB...). In games, it doesn't work for now.
Antiquated definition of "unity" WRT software:
The dangerous effect of a ruling in favor of bnetd would have gone way beyond computer games. It would have been disastrous to talk about a coherent client-server architecture (from the same vendor and with totally proprietary standards) as two different programs. The world has changed since those computers that weren't connected over a network or the pre-Internet days. Today we have lots of client-server applications that are a unity (unlike those clients and servers that use open standards such as HTML), and we also have cluster applications with different modules performing different functions, but all of them together forming a single coherent system. Interfering with modules that are technically separate, but must be viewed as legally/commercially parts of the same, would have the same effect as letting people interfere with modules of a single piece of executable code.
That said, and considering that bnetd breaks a business model and enables piracy, I continue to believe that the EFF stepped over the threshold from a digital rights movement to a digital anarchy movement (or digital lawlessness movement) by supporting bnetd in court. I hope that the EFF has learned its lesson from this defeat in court, and that they will take on more honorable and meritorious cases in the future.
The whole point that I made in the announcement which triggered this was that anti-IP radicalism hurts open source politically, especially on the right wing. Look at it strategically: Open source will continue to grow no matter what activists say in the political arena, but how big open source can get and how fast it can grow will largely depend upon politicians.
You need lawmakers (in such fields as patent legislation), you need governmental authorities (such as in anti-trust proceedings), and government use of software is strategically important. It accounts for about 15% of the entire software market and sends out a signal to corporations. Open source has had some of its major breakthroughs with public administrations (city of Munich, for instance). If open-source advocates take positions that trigger defensive reactions from, or even cause nausea to, pro-business politicians with their value system, then open source limits its own potential and plays in the hands of its enemies.
That was my concern when I wrote the press release, and this discussion here has added to it. However, I do hope that some (possibly even a silent majority) understand this strategic worry.
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