[OT] What is Open Source?

[David Mertz, Ph.D.]

"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.

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.

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.

--
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!
-------------------------------------------------------------------------