August 20, 2002

Comment on the Winer/Lessig Brouhaha [6:38 pm]

(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?

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