Comment on the Winer/Lessig Brouhaha

(entry last updated: 2002-08-20 18:52:20)

Dave Winer has been decrying Larry Lessig’s position on software copyright for the past couple of days, and others have been jumping in to take one side or another (or to try to tamp down the whole discussion). At the risk of getting flamed, I’m going to try to take a shot.

Dave asserts that Larry is completely opposed to software copyright, and that this is a position inconsistent with the needs of developers to get paid for their work.

My reading of Larry’s position is somewhat less extreme. Doc Searls quotes from The Future of Ideas, so I will too (at the risk of exceeding my fair use quoting limit).

Worse, the copyright system protects software without getting any new knowledge in return. When the system protects Hemingway, we at least get to see how Hemingway writes. We get to learn about his style and the tricks he uses to make his work succeed. We can see this because it is the nature of creative writing that the writing is public. There is no such thing as language that doesn’t simultaneously transmit its words.

Software is different. As I’ve described, software is compiled; the compiled code is essentially unreadable; but to copyright software, the author need not reveal the source code. Thus, while an English Department gets to analyze Virginia Woolf’s novels to train writers in better writing, the Computer Science Department doesn’t get to examine Microsoft’s operating system to train its students in better coding.

The next paragraph argues that, without access to source code, data encoded using programs may ultimately be lost because no one can know how to extract it

The next paragraph suggests that access to source code is believed to make software unprotectable, hence it is not supplied. However, technical copy protection tools can be used to protect the software, for example

If society is to give software producers more protection than they otherwise would get through technology, then we should get something in return. And one thing we could get would be access to the source code after the copyright expires. Thus, I would protect software for a term of five years, renewable once. But that protection would be granted only if the author submitted a copy of the source code to be held in escrow while the work was protected. Once the copyright expired, that escrowed copy would be publicly available from the U.S. Copyright Office server.

The Future of Ideas; Lawrence Lessig; pp. 252-253

Now, I can read many things into this, but an absolute assertion that there should be no copyright for software is a little strong. I read this as stating that, since copyright legislation has generally obviated the requirement for registration, it should be reinstated for software. Moreover, that registration should include the source code, held in escrow, and that source should be made a part of the intellectual commons after 10 years.

I can see arguing about this. Maybe the time table is too short or too long. Maybe there should be more opportunities to renew. Maybe there should be some kind of economic fee associated with renewal. But arguing whether or not Larry Lessig is a communist and doesn’t understand/like developers is a waste of a lot of smart people’s time, IMHO.

There definitely are things that Larry doesn’t get – the two-way nature of the Internet, for example. But the social need to have some way to replicate functionality precisely without being indefinitely indentured to a programmer seems like something worthwhile.

And I can’t believe that Dave thinks otherwise. Certainly the tools he creates are not about lock-in; and the creativity he engenders can be found all around.

I don’t think that Larry says all code must be open source. I think he believes it should be, but that’s a long way from a requirement. Certainly, the proposal he makes above suggests that he sees that there are business models that would require closed source – but is it really so crazy to ask for a guarantee of eventual availability of source in the long run? How much would Dave’s business model change in the face of Larry’s proposed plan?

2002 August 20 links

(entry last updated: 2002-08-20 18:39:24)

The “discussion” between Dave Winer and Doc Searls of Larry Lessig’s OSCON challege is ongoing, and getting hotter. Here’s the state of play so far:

  1. Dave Winer’s Scripting News (SN):Lessig asks….
  2. Doc Searls’ Weblog (DS): Who does what
  3. SN: Scroll down to Doc steps in…
  4. DS: All the colors in the monochrome
  5. SN: Making money with weblogs
  6. DS: Finding agreement
  7. DS: (new) Re: Sunday, August 18, 2002 – note that Dave Winer gets into it here in the responses below
  8. SN: (new) Doc did a bit of investigation to… and the next paragraph.
  9. SN: Disucssion with David P. Reed

It’s clear that Larry got the rise he wanted; it’s less clear that this is a particularly productive discussion. Doc is trying, but Dave is insulted at being lumped in with the “Evil Empire” just because he sees merit in copyright protection for software. Once again, the dangerous conflation between “copyright” and “(intellectual) property” gets people at each other’s throats.

In other topics – is Declan McCullagh losing it? ZDNet’s publishing of the Reuters newswire article on the recent RIAA suit of ISPs gets some great TalkBacks. A Christian Science Monitor bit on digital copying makes me think of a couple of questions. Julie Hilden and Findlaw analyzes Berman-Coble.

And Slashdot has a discussion about the ISP blocking access to the RIAA for the good of its customers that I talked about yesterday. The state of Russia CD production, and that of law enforcement, is discussed.

(6 items listed below)

  • The Christian Science Monitor has a brief summary piece on the state of play in digital copying. It gets a certain amount of play at Slashdot. This article raises a simple question: where’s the evidence showing that this is a good idea? A bad idea? In my opinion, giving Hollywood what they want will guarantee the death of digital media (e.g., DAT), while the MPAA believes that this is good for them. Is that because they expect that digital media will let them expand their market? Or does it mean that they, too, are trying to kill off digital media so they can retain their current business model? Is there any evidence at all?
  • ZDNet is carrying the Reuters newswire article on the RIAA ISP suit. Read the Talkbacks – see what the readership thinks.
  • Cory Doctorow thinks that Declan missed the point in his recent opinion piece on the DMCA. Frankly, I agree with Cory, and that makes Declan 0-for-2 on recent opinion bits (c.f. this one).
  • Julie Hilden at Findlaw’s Writ writes about the threat of Berman-Coble, and the long row ahead of the copyright industries. Her ultimate conclusion is worth a couple of reads, starting as it does with the assumption that the (il)legality of digital sharing is settled.
  • Glenn Harlan Reynolds points to an article on copyright and its Constitutional limits from 2000.
  • The New York Times writes about the CD business in Russia: “Legal music is a niche market in Russia — it’s strange but true.”