[OT] What is Open Source? (long)

Ken Seehof kseehof at neuralintegrator.com
Wed Aug 14 23:06:11 CEST 2002

> "Clark C . Evans" <cce at clarkevans.com> wrote previously:
> |I don't.  I firmly believe that copyright and patent are
> |fundamentally good ideas (trademark is the best of the three).
> |They are a contract between the public as a whole to a inventor/author.
> The only problem with this belief is that it is completely, totally,
> 100% wrong.  A copyright is, quite simply, a legally enforced artificial
> monopoly--not a contract.  These are quite different things.

I agree that a copyright is artificial, but not that it is a monopoly,
since a competitor is free to independently create information of similar
or greater value and sell it at a lower price or give it away for free.
A patent, on the other hand, creates a monopoly.  I am basically opposed
to software patents for practical reasons (copyright and time to market
are sufficient to motivate innovation but patents just make lawyers rich
while suppressing small software companies by adding an extra $20K to
startup costs just to protect against getting sued).

Whether or not it is a contract depends on whether you believe that we
live in a democracy, which is a whole 'nother debate.  If this is a
democracy, then copyright law is a contract among all citizens.  But
that's just arguing semantics.  In practice, a copyright gives me more
flexibility in creating contracts involving buying and selling of
information.  If the information costs me something to produce, then
copyright laws empower me to make contracts that spread my cost to more
than one user.

> A contract involves an agreement between or among two or more parties
> concerning the exchange of goods or services.  Any time I contract for
> something, I give up something in my "natural" possession.  It could be
> some bills of currency, it could be some bushels of corn, or it could
> be some hours of my labor-time.  But in fulfilling my end of the
> contract, I give up the right to use a consideration.  In fact, I could
> contract to sell you a physical copy of my forthcoming book... thereby
> parting with the object for some amount of money (or a trade for
> something else).
> Copyright has nothing to do with this contract I have made, except in
> the sense of artificially inflating prices, in some contexts.  I can
> deliver the physical book as a contractual matter, copyright is a
> restriction on what you can do with the book once it is in your
> possession--specifically, it is a state mandated prohibition on you
> entering into contracts with other people to deliver other objects that
> are "abstractly similar" to the object I delivered to you.  Of course,
> quite unlike a contract, you are subject to this restriction whether or
> not you have bought the physical book from me, entered into any contract
> with me, or even ever met or heard of me.  On the other hand, a contract
> to sell you bushels of corn cannot legally contain the same restriction
> on the use to which you put the corn... once you buy it, it's yours to
> do with as you wish.

The author of the book may choose to release the content of the book to
the public domain.  So in effect, any restriction is mandated by the
author, not the state.

> One could imagine that copyright was like some odd sort of covenant:  I
> "sell" you the corn, but with the covenant that it be made only into
> corn muffins, not polenta.  A covenant like this is -conceivably-
> enforceable, and does have a superficial similarity.  But for a covenant
> to be binding, you (the "buyer") have to actually enter into it.
> Copyright restrictions require no such entry; a copyright restriction is
> much more similar to a prohibition on murder or drug-possession.  The
> state decides (rightly or wrongly) that its citizens should do certain
> things rather than others, and mandates such.  Contracting parties have
> nothing to do with the legality of murder--and any contract requiring it
> is void on its face.  Likewise, copyright.

Copyright laws are quite different from the other laws you mention.  I
can't give someone permission to murder me, and I can't make it legal
for someone to maintain possession of drugs that I give them, but I can
(and do) produce open source and public domain software.  The state has
no power to limit distribution of that software.

> --
> mertz@  | The specter of free information is haunting the `Net!  All the
> gnosis  | powers of IP- and crypto-tyranny have entered into an unholy
> .cx     | alliance...ideas have nothing to lose but their chains.  Unite
>         | against "intellectual property" and anti-privacy regimes!
> -------------------------------------------------------------------------

I like the communist reference :-)

I think of software as the mathematical limit of capitalism in general
where the cost of capital (software development) is high and the cost
of production (electronic distribution) goes to zero.  The big question
is how to motivate creation of capital while maximizing distribution
of wealth.

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.  Hence, if you only look at the
distribution side of the picture, clearly the optimal distribution of
information is to distribute it freely to everyone who can benefit from
it.  Likewise if somebody has machine that can produce an unlimited
quantity of corn and teleport the corn instantly to every location on the
planet, it would be in the interest of society that the corn replicator
be made available to everyone for free.  Many would, of course, argue
that the owner of the corn replicator is evil for hoarding and selling
corn for a price rather than giving away free corn to everyone.

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.  If
the inventor has no way to make a profit by creating the corn replicator,
the corn replicator will not exist, unless she really likes corn (i.e.
unless the cost of inventing a corn maker is less than the value of the
amount of corn that the developer can consume).

Open source free software is often produced by people who benefit from
the software they produce enough to offset the cost of production.  Also,
open source software is often much cheaper to produce due to cooperation
between multiple developers.  The economics are favorable for the production
of open source free software when the cost of production is less than the
benefit to the producers of the software (ignoring the value to potential
users of the software who are not producers).  The problem with this model
is that the benefit to the masses who use the software do not necessarily
translate into incentive to develop the software in the first place,
therefore the software might not be produced at all even though society as
a whole could benefit from it.

In a truly free market, one would expect that free open source software
will crush closed source commercial software precisely when the free open
source model becomes profitable (i.e. when the producers benefit enough
to offset cost of production).  At that point, Linux crushes Windows
instantly.  (But this is not a free market.  Microsoft has many clever
tricks to manipulate the market, such as strange license agreements that
limit use of their software in conjunction with open source software.)

My company is developing a commercial software product that will save
musicians around the world many hours of time.  The total development
time is about six man months or 1000 hours.  We will price the software
at $189.00.  If we sell 1,000 copies we will be adequately compensated
after considering advertising costs and the risk that maybe noone would
have bought it.  Of course, we hope to sell much more than that.

There isn't any way that I can think of for this product to be developed
as open source at this time, since the individual benefit isn't sufficient
to offset the cost of development.  If I am wrong, somebody else will
independently develop an open source version and knock us out of the
market.  I expect this to happen eventually, when software development
becomes cheaper than it is now, and when this happens, the public will

If copyright laws did not exist, and/or crackers manage to break my copy
protection scheme (which they will, I'm sure), and my first and only unit
sold were doomed to be efficiently distributed for the benefit of all, I
would not have started this project in the first place, and nobody at all
would benefit from this software.

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.  I would
also argue that copyright laws are generally beneficial because they do
not prevent public domain competition from existing (except in unnatural
cases such as Microsoft* as mentioned above).  If it is possible for a free
open source product to be created at a profit, that product will render
the copyrighted competition obsolete in the marketplace.

Most commercial copyrighted material would not exist (free or otherwise)
if copyright laws didn't exist.  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.  I don't believe
that copyright laws discourage the creation of free information.

Eventually all information will be free.  The sooner the better.  But
not by removing or weakening copyright laws, which will continue to be
beneficial until they become obsolete.  We should be thinking of new
ways to make open source software more profitable.  Ideas that facilitate
larger numbers of end users to absorb the cost of development would be

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
place, at least in the context of our current exchange economic system
(that's a whole 'nother debate too:

No need to fight.  There is enormous wealth available to anyone who
learns to tap the space in between.

*For more about Micro$oft, see Eric Raymonds anti-Microsoft jeremiad:

Copyright (c) 2002 by Ken Seehof
Permission granted to distribute freely without fear of police brutality,
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Quoted sections copyright (c) by their respective authors.

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