September 15, 2002

2002 September 15 Links [10:00 am]

(entry last updated: 2002-09-15 14:41:17)

So far, the best "link" I can suggest is only available in hardcopy - Steven Levy profiles Larry Lessig and the Eldred case in the October edition of Wired. I remember Steven as spending a lot of time around Larry during ILaw, it’s clear from this article that it was no accident. Moreover, the article really does capture a lot of what Larry’s like in person, and as a lecturer. Well worth a read now, or wait until it’s available online next month.

There is an interesting article at ZDNet on the Morpheus case that starts to show the outlines of the pending arguments. And it looks like Larry is continuing (with Ted Shelton - his permalinks are a mess, so look for his Sept 14 posting) the earlier discussion of his copyright proposal (here and subsequent.) Interestingly, Dave Winer is monitoring, but not discussing - yet anyway. More interestingly, Ted raises a different concept in his argument with Larry that touches on a problem I’m thinking about (see below).

(4 items listed below)

  • John Borland writes about the KaZaA/Morpheus case, with particular attention paid to the current struggle to define the issues at contention. A notable quote:

    “Owning copyrights doesn’t give you the right to dictate to people how to build their products,” said Fred von Lohmann, an Electronic Frontier Foundation attorney who is representing Streamcast. “If that were the rule, it would make Microsoft, with Internet Explorer and Outlook, an infringer. It would make virtually every software company liable for copyright infringement.”

    We’ll see.

  • BusinessWeek Europe has a great article on the Verizon/RIAA dustup over consumer privacy and the DMCA

    The good news is that, unlike past legal battles, the RIAA is picking on someone its own size. The defendant isn’t some underfunded, inexperienced dot-com but a telecommunications giant. And the outcome will affect all ISPs, from AOL (AOL) and EarthLink (ELNK) to SBC (SBC) and AT&T (T). That means sharp lawyers will be fighting hard to ensure that copyright holders — or anyone else — aren’t given access to identifying information without a judge’s approval.

  • And it’s probably worth bookmarking this link to the BusinessWeek ongoing collection of their articles on Digital Music’s Future
  • 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.

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