Ted Shelton of Borland is arguing with Larry Lessig about copyright and software, following up on the rather nasty brouhaha that Dave Winer got going a couple of weeks ago. While I think I agree with Larry’s current rejoinder, Ted’s blog has the following argument to support copyright protection in the absence of the release of source code (a “transparent copy”).
If oblique creativity does not receive the same protection as transparent creativity it seems to me that we will be creating an enormous problem in determining just what is an oblique creation, and what is a transparent one. The other example in my earlier note is an interesting one — should the romance novels generated by an automatic novel writing software receive copyright protection if I do not submit my software to the escrow plan? What about special effects in movies — should Pixar be required to escrow their animation software for Toy Story to recieve copyright protection? How about the musician that programs a sound into a synthesizer — should the musician be compelled to escrow the specifics of this wave form in order to receive protection for the song? [emphasis added]
Ted is touching upon the issue that I raised parenthetically a couple of days ago. Ted is conflating the expression, which is copyrightable, and the tools employed to create the expression (or, alternatively, the tools used to convert the expression into an experience). Ordinarily, one would assume that protection of a tool would be the domain of patent. But, because software patents are only a recent construct, software has been protected by copyright instead.
Ted’s romance novel example seems to argue that Larry’s approach says that a robotically-created novel would only be copyrighted if the plans for the robot were part of the escrow. I fail to see this point. The expression, in this case the novel, is immediately accessible without the intermediation of the robot. Rather, the robot is only needed to reproduce the novel in a rather difficult way; Xerox offers a much simpler mechanism.
But, note that Ted’s example introduces the same issue that I mentioned earlier. While I talked about the alienation of the user from the process of converting an expression into an experience, Ted is describing a process where he is alienating the artist from the process of creating the expression - the romance novel.
And this may be why Dave Winer and Ted Shelton get so upset about the idea of releasing source code: programmers are alienated from the process of creating the expression that they wish to copyright. The programmer doesn’t really create the thing that the user buys; a compiler, plus a packager (e.g. InstallShield), plus a bunch of other tools do the actual work of producing the expression - the programmer conducts and leads this process and knows what he wants to get, but the actual, formal expression is the product of other instruments, many outside of the programmer’s control. A new compiler with new algorithms, or a new compiler for a new architecture, will take the same set of source code and produce a completely different object code. That object code may generate the experience that the programmer wanted, but it may also produce something completely different - ranging from a hung computer on up.
And therefore the programmer’s only way to retain power over his creation is to claim exclusive ownership of the meta-instrument of creation that he makes. As far as he is concerned, the source code is akin to a record-playback CNC tape of Auguste Rodin carving The Kiss from a block of marble. Once you have the tape, you have the process of creation, as well as the expressive object. On the other hand, if you start with a piece of granite, it might not cut properly or, worse, it will look wrong and the sculptor has no opportunity to rework it to get the effect he wants.
And now we maybe begin to get to the heart of the fight over copyright and software. Frankly, I don’t think the argument about source code has to do with the next piece of gamer software - at least, I could care less. But I really care to have access to the source code that alienates me from my created objects - papers, presentations, drawings. Because, by using Microsoft Word on top of Windows XP, I no longer control the process of creation - Word and Windows alienate me from my work, just as the compiler alienates the authors of Word from their product. And what we see here is that we’re both struggling to retain control — to own — the things we have created.