[OT] What is Open Source? (fwd)

[Alex Martelli]

David Mertz, Ph.D. wrote:
        ...
> pretending that you "contract" for "intellectual property", you create
> the illusion that IP is something inherently in your possession.  I can

Maybe not "inherently", in that an idea is not "in my possession" until
I've thought of it (on my own or on others' prompting).  But then, neither 
is a bushel of corn "inherently in my possession" until somebody's
harvested it (which implies it's been grown first), etc.  So I may
be missing the distinction.

Let's take an example.  Say that my family works in the pottery gilding
trade.  It's a reasonable business, although it takes extreme care and
skill to use just the minimal possible amount of gold to give the gilded
pot the right appearance, and it's quite specialized-labor intensive.

Now, maybe by accident and maybe because I'm inherently motivated to
tinker in strange ways, I come up with a huge enhancement on the classic
gilding technique I learned at grandpa's knee.  By making a pile of
rags soaked in appropriate solutions, and putting the pot to be gilded,
well-rubbed with graphite powder, and a lamel of gold, in appropriate
places, I find out the pot does get gilded, slowly but surely, with an
extremely low amount of gold compared to what it would take in order
to get it that good manually -- and while it's being gilded I can read
the Baghdad Times, or whatever passes for it in the (I believe) 9th
century.

Yes, it does seem incredible one could actually come up with such a
thing as electricity and galvanic effects on one's own in such fashion,
but, according to some archaeologists, this MAY have happened in 9th
century Baghdad -- at least, it's one way to explain a certain rather
mysterious archeological find.  If this specific technological piece
of luck should be fictitious, no matter -- you can most certainly think
of other analogous possibilities.

Now, absent any concept of "IP", what shall I do with my find?  Most
assuredly, unless I have an unusual amount of goodwill towards mankind,
I'll endeavour to keep it a secret of my trade.  Isn't "trade secret"
the oldest form of "IP"?  By exploiting my new technique, I can get
results similar to, or better than, those of my competitors, with less
effort and (crucially) much less gold for a given gilding task.  I'll
only teach the secret to my oldest son, as soon as he's old enough to
be trusted to keep it and familiar with the basics of normal gilding
technologies of the time.  Similarly, he'll only teach it to his own
oldest son, and so on.  We can't afford to let the secret escape, or
it's bye bye to our competitive advantage -- if other gilders learn of
the new trick, they'll start using it, and the price of gilded pots
will fall accordingly.

Of course, by keeping this a secret, we're making it quite likely that
the secret will be lost one day -- maybe not to resurface for the
better part of a millenium.  Well, tough -- if society grants me no
benefit or protection for revealing my discovery, I sure owe society
no such revelation if I can possibly avoid it, no?

We do know for sure that such secrecy was the norm, much later (in
the late Renaissance) for such techniques as solving 3rd and 4th
degree polynomial equations.  Niccolo` Tartaglia, or whoever it was
who first came up with that idea, held it as his own peculiar secret
as long as he could -- basking in the glory of being the only one
learned and clever enough to accomplish such tasks, and teaching it
only for princely sums and avowals of secrecy (one such was broken,
which is how the technique then spread).

If a non-disclosure contract had been recognized in law at the time,
I guess Tartaglia (or whoever) might have managed to keep it a
secret quite a bit longer.  Working on "just word of honor" proved
less reliable.

Now, the "contract" idea may be a bit clearer.  We, collectively,
want to encourage people who have thought up, discovered, etc, nice
and clever ideas, to share them.  For that purpose, it may be in
society's collective advantage to award some prize for such sharing.
It's quite hard to come up with equitable ways to determine such
awards so they'll indeed encourage the sharing (and indeed the
investment in the thinking-up) without also rewarding useless ideas.

A temporary monopoly is a clever, market-oriented way to let the
appropriate award values be determined mechanically -- revealing the
idea is deemed to be worth whatever 15 years' (or other fixed
amount of time) of exclusive exploitation of the revealed idea
may be.  In some cases, of course, this will be too high, and in
others too low (when it's far too low, the idea won't be revealed,
which is why we still DO have trade secrets these days, of course).
But, take some give some, it's still a neat hack overall.

By raising the value of discovering things, it also produces more
discoveries, of course -- since when you discover something you may
still try to gain from your discovery the old way (keep it secret)
OR avail yourself of the new mechanisms, the discovery is made more
valuable, so you're incentivated to expend more time and energy in
the hope of making discoveries.

Now, of course, there are inherent weaknesses, and, like for just
about any social arrangement, ways and means to work around it,
exploit it for rent-seeking, and so on.  Many discoveries could not
be usefully exploited without revealing them anyway: in this case,
rewarding the revelation may turn out not to be in society's overall
interest (unless the "encouraging more discoveries" factor should
dominate).  Some discoveries are "in the air" when the time is "ripe"
for them -- then, awarding a temporary monopoly to whoever happens
to come up with them first is rather arbitrary.  Classifying the
various kinds of discoveries and adjusting per-kind the amount of
time of the temporary monopoly might help -- but of course the
rent-seekers may fight this by lobbying.

But for each of these issues one needs to get down to specifics
rather than just take some kind of overall philosophical and moral
stance.  There's no misconception involved as you state...:

> actually hold my bushel of corn, and as long as I hold it someone else
> can't.  By pretending IP has the same nature, one falsely
> naturalizes--us Lukacsian's say "reify"--the "thing" that one "has."

Consider a field of grass.  The fact that my cow is grazing there
doesn't, per se, impede other people's cows.  But if everybody can
graze their cows at will, overgrazing will irretrievably damage
the field, and all involved -- the 'tragedy of the commons'.  To
avoid it, it may be in society's best interest to recognize the
concept of 'property' -- empower a single individual or firm to
stop others' cows from grazing on each piece of land.  A society's
choice to acknowledge and protect the property of land is just as
"artificial", or "falsely naturalized", as that to acknowledge and
protect a temporary monopoly in exploiting some idea.  The fact that
a field of grass is something you can touch and an idea isn't is
quite besides the matter -- one could easily philosophize about
the field of grass and find out it has nothing but social "reality"
anyway (at the very least, what distinguishes THIS field from
THAT field -- except, e.g., fences that our social contract may
let us put up?  Or just a social covenant that "Jim's cows and
his ancestors have been grazing there exclusively since time
immemorial"?  Etc, etc -- and indeed, what the land's "property"
protects is not really the physical object, but the less tangible
concept of USING certain sets of physical objects in socially
sanctioned ways, &c).

Land property is quite as subject to abuse, rent-seeking (indeed,
'rent' was first used specifically for land!-), etc, as any other
social arrangement.  Look at the vicissitudes of land reform in
various countries and eras to see how hard it has generally been
to adjust this social contract in ways that would in fact keep it
in society's overall benefit.  That doesn't condemn the concept of
"land property" nor the "reification" of property, any more than
your arguments, or the current abuse-ripe state of many aspects of
intellectual property, condemn that of "intellectual property".


Alex