[OT] What is Open Source? (long)

Ken Seehof kseehof at neuralintegrator.com
Thu Aug 15 13:25:18 CEST 2002

> > live in a democracy, which is a whole 'nother debate.  If this is a
> > democracy, then copyright law is a contract among all citizens.
> A contract imposed by fiat, without the consent or even knowledge of
> some of the parties to said supposed contract?  I don't think so.

Touche.  That's a good point.  So agreements made by majority vote can't
be considered contracts (nor, I suppose, laws created by majority vote
of representatives engaged in continuous power exchange, but the question
of democracy is getting way off topic rather than off topic).
Let's just say I stand corrected.

> > that's just arguing semantics.  In practice, a copyright gives me more
> > flexibility in creating contracts involving buying and selling of
> > information.
> No it doesn't.  What does it do that real legitimate contracts can't?
> [If anything, it gives you less flexibility]

Okay.  Assume there are precisely 1000 people who can benefit from a
software program that I write.  Use of the program is worth $200 for
each potential user.  They are willing to pay $100.  Assume it costs me
$50,000 to create the program, and just for the sake of argument, none
of the 1000 users happen to be programmers.

Please construct a hypothetical contract with each individual client
in which all 1000 users pay me $100.00 for creating the software.  Keep
in mind that I do not know who these users are or how to contact them
directly, I only have faith that there are about 1000 of them, and I
can't in practice sell to these picky customers without a finished
product.  Thus I can't simply invite them into a room and make a
collective deal.

I'm not sure how to do this, and I'm not trying to be argumentative.
But if you have a practical general solution to the above challenge,
I will never copyright my software again.  Really.  I'd rather not
use such a crutch if I don't need to.

Perhaps it is sufficient to simply implement a license agreement that
forbids redistribution by my customers.  This would presumably be a
binding contract.  It seems like this would have essentially the same
effect as a copyright, but explicit rather than implicit and only
binding to my direct customers.  This hypothetical contract may be
philosophically superior to copyright protection, but nothing prevents
an "accidentally" leaked copy from being distributed, so for practical
purposes is unenforcable (a big with for the freedom of information,
but unfortunately, in this scenario I am not motivated to create the
program in the first place).

If such a contract is not feasable without the help of copyright law,
then I can't afford to create the program.  That's why the existence
of copyright law increases flexibility.

On the other hand, the existence of copyright law does not prevent
or in any way hinder our ability to create and release anything we
like into the public domain.

I agree copyright law is not a contract.  Let's say we recind all
copyright law.  Suppose I sell a book.  On the first page is a license:

 "By reading beyond this page you agree not to reproduce any of the
 content within this book."

If binding, this contract would have the same effect as copyright law.

Zipping back to this universe, with copyright law, one can place the
following statement:

 "The contents of this book are hereby released to the public domain."

In both cases, the author gets to decide whether or not copyright, or
it's logical equivalent apply.  The difference seems to be whether the
limitation is explicit or implicit.

> > To me, the distinction between information and corn is that corn has
> > a per-barrel cost, whereas information has essentially zero cost for
> > replication once somebody creates it.
> Read Bastiat's "Economic Harmonies", available online at econlib.org,
> wherein he argues that the per-barrel cost of corn (does corn come in
> barrels??) is in fact zero...

I don't know if corn comes in barrels.  I was borrowing the concept from
a previous post. :)

> > The capitalist naturally argues that it is necessary to allow and indeed
> > encourage the corn maker to make a profit by selling the
> "zero-cost" corn
> > because the incentive is necessary for people to do all the research and
> > development necessary to produce the corn maker in the first place.
> Some might, but the argument is wrong on it's face.  It's neither
> necessary to "allow" not to "encourage" the corn-maker to do anything;
> it's necessary only not to stand in his way -- "allow" implies that
> you have some right of choice in the matter.
> If the corn maker wants to impose conditions on the use of the corn he
> disburses, contract law can deal with that.

Can it?  I sincerely would like to be convinced.  I'm not being sarcastic.
I really would like to learn how to make copyright law obsolete.

> > If copyright laws did not exist, and/or crackers manage to break my copy
> > protection scheme (which they will, I'm sure)
> I though copy protection went out of fashion 20 years ago?!

Yes.  That's what I've been arguing too.  My partner managed to convince
me otherwise.  The particular target audience, in this case, seems to fit
a conventional commercial approach rather than an open source approach.
Also, our copy protection is not particularly annoying.  Essentially, you
can install it on multiple machines, but only if you know the purchasing
information (e.g. credit card number), which the owner won't want to
divulge, at least not massively.  I'm just hoping to delay the warez
releases for a few weeks.  The music market is very well connected and
I want word of mouth to help me rather than hurt me.

> > I think that in this particular case, the world benefits from my ability
> > to copyright and hoard my creation, and sell it for a profit.
> The one has nothing to do with the other.  [And "hoard" is such a
> loaded word; I don't like that]

Are you proposing that I can make the same amount of profit without
copyright?  How?

> > Most commercial copyrighted material would not exist (free or otherwise)
> > if copyright laws didn't exist.
> Clearly /no/ copyrighted material would exist if copyright laws did
> not exist.

Um.  The copyrighted material which would have been copyrighted but wasn't
because there would not have been copyrights at all might exist and yet
not be copyrighted except that it would not exist due to lack of motivation.
There.  Is that more clear? :-)

> In any case, you're provably wrong: an awful lot of material that
> would be copyrightable today was produced during the many millenia
> before copyright was "invented"...

That doesn't prove me wrong.  "An awful lot" is not necessarily more
than half of what would have been, if there had been copyright law.
(Ack, my grammer is on a downward spiral and it's all your fault)

Anyway, my comment referred to "commercial copyrighted material", by
which I mean material that is created for the purpose of making a profit
through sales.  This includes off-the-shelf software at Fry's.

> (much of it much better than what is produced today, and all of it
> involving enormously more work than anything produced today)
> [Nevertheless, don't misunderstand; I'm not really anti-copyright
> (yet; I used to argue for it, but found my arguments unsupportable and
> now I'm on the fence...it's possible I may come down on the other side
> eventually...)]

Heh.  I'm on the fence too.  Nevertheless it is interesting to have
a heated debate with an intelligent individual sitting on the same
fence.  We may disagree on whether copyright increases or decreases
flexibility.  I would argue that copyright gives more flexibility by
allowing the authors to choose whether, and to what extent, the
information that they create should be free.

> > It doesn't make much sense to
> talk about
> > the hypothetical free distribution of something that does not exist.
> > Therefore by objecting to copyright laws, one objects to the
> existence of
> > material whose creation was motivated by those laws.
> You're assuming there is any material whose creation was motivated by
> those laws.  Do you actually have any evidence of the existence of
> such?  (Even if you do, which I'm confident is not the case, is it so
> valuable that anyone other than the copyright holder would care if it
> didn't exist, and of such uniqueness of construction or design that
> noone to whom it is of great value could have produced it, or arranged
> to have it produced, themselves?)

Well, yes, I think that I do.  The software that I'm about to release is
motivated by copyright law.  I do not think we would be able to sell
enough copies to make up for the time that we have spent over the last
several months, if one of the first copies were made available for
free on the internet.  Yes, I'm actually quite certain that we would
not have started on the project at all without copyright, or equivalent.

It is not likely that anyone would value our program enough to pay,
say, $50,000 for it.  It's really not worth that much.  It's worth a
few hundred perhaps to a million or so musicians though.

There are many different kinds of software.  Some kinds lend themselves
to open source models, while others (a shrinking minority, it turns out)
fit the commercial model better.  Factors include:

Distribution of value (small value for many vs. large value for few)
Programming talent within target audience
Capacity to support a service based business

> > Open source and free software are the most efficient models when you
> > look at distribution of wealth once it is created, and often the best
> > for reducing cost of development.  Capitalism and copyrights are often
> > most effective for motivating production of that wealth in the first
> Are you drawing a distinction between "free software" and "capitalism"
> here?  None exists.

In the sense that capitalists make money and free software developers
also make money, I agree that there is no distiction there.

The connection between copyright and capitalism that I perceive is a bit
more subtle and I should have made it more explicit.  By capitalism I'm
refering to ownership of the means of production.  What is being produced
are copies of software.  What is owned is the original copy.  Copyright
allows one to own and control the means of production, and therefore
copyright is a capitalist concept.

The open source movement is largely driven by a gift economy, which is a
different system, though completely interoperable with capitalism (of
course interoperability can sometimes be thwarted, which brings to mind
a little guy in Redmond) :)

OSS projects have been able to gain a foothold in many server
applications because of the wide utility of highly commoditized,
simple protocols. By extending these protocols and developing new
protocols, we can deny OSS projects entry into the market.
   -- Microsoft internal memo

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