Discrimination
One of many comments in a recent roundtable discussion showing the controversies about what it means to discriminate. So everyone here has the idea that discrimination is wrong, but people have vastly different concepts about what kinds of practices are wrong.
Some people say that everyone has the right to derive new programs using old programs written by others (and of course to distribute these new programs). According to these people, whoever tries to stop the programmers from doing this is doing something abusive (whether it's done by legal means or not).
Other people say that nobody has the right to derive a new program or to distribute it (always assuming that the original author has not consented, because supposedly volenti non fit iniuria). According to these people, whoever tries to force the programmers to be allowed to do this is doing something abuse (whether it's done by legal means or not).
The interesting thing is that there are legal means to try for each objective -- the GNU GPL, on the one hand, and Microsoft's licenses, on the other hand. But legal doesn't mean that everyone will approve or think that a tactic is ethical.
This particular debate was conducted between Brett Glass (an opponent of the GPL) and some GPL supporters. Brett Glass observed that the Free Software Foundation thinks that proprietary software is bad. (This is pretty easy to establish; you can start with "Why Software Should Not Have Owners".) Glass disapproves of the FSF's use of the word "proprietary" for various reasons; for purposes of this discussion, we can say that the controversy is about software for which copyright is used in the traditional way that the 1980s and 1990s software industry used it. Stallman thinks that this use of copyright was and is immoral; Glass thinks that it's perfectly moral. Stallman's strategy to fight against proprietary software was not to encourage copyright infringement, but rather to try to make proprietary software obsolete:
GNU is not in the public domain. Everyone will be permitted to modify and redistribute GNU, but no distributor will be allowed to restrict its further redistribution. That is to say, proprietary modifications will not be allowed. I want to make sure that all versions of GNU remain free.[...]
Many programmers are unhappy about the commercialization of system software. It may enable them to make more money, but it requires them to feel in conflict with other programmers in general rather than feel as comrades. The fundamental act of friendship among programmers is the sharing of programs; marketing arrangements now typically used essentially forbid programmers to treat others as friends. The purchaser of software must choose between friendship and obeying the law. Naturally, many decide that friendship is more important. But those who believe in law often do not feel at ease with either choice. They become cynical and think that programming is just a way of making money.
By working on and using GNU rather than proprietary programs, we can be hospitable to everyone and obey the law. In addition, GNU serves as an example to inspire and a banner to rally others to join us in sharing. This can give us a feeling of harmony which is impossible if we use software that is not free. For about half the programmers I talk to, this is an important happiness that money cannot replace.
Stallman thought that free software developers could outcompete proprietary vendors, by undercutting them in the marketplace with volunteer labor and royalty-free distribution. In addition, his license terms would provide an incentive for others not to use copyright in the typical software industry style.
These are serious problems for Glass, who feels that the typical industry practices ("marketing arrangements now typically used") are moral and that fighting to drive them out of the market is a very bad thing.
So Glass will talk about how the GPL discriminates against commercial software vendors. And people who are talking to him will say, what do you mean? Doesn't the GPL provide exactly the same terms to those vendors as it provides to everyone else?
(Actually, it doesn't: 3(c) says "(This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)" But it's extremely unusual for anybody to use the option in 3(c) at all, so it doesn't seem like a big deal to people.)
But Glass counters that the terms the GPL offers are by design only useful to people who aren't commercial software vendors! So such people get the same offer, but it's an offer that was set up bearing in mind that it would be an impossible offer for them to accept.
It's interesting to think about whether this should be called discrimination. The easiest argument to make is that it is not formal discrimination, because it does give the same treatment to everyone. But it could be substantive discrimination, because it's intended to favor the interests of one group (people who want to publish programs which provide Stallman's Four Freedoms) over another (people who want to publish programs which use copyright in accordance with the "marketing arrangements now typically used").
GPL supports don't tend to think of this discrimination as bad; in Stallman's view, those who are trying to sell proprietary software via typical marketing arrangements are doing something bad already, and so creating inconveniences for them is hardly a problem. In Glass's view, the same people are doing something perfectly honest, by way of earning a living, and Stallman's roadblocks are a terrible form of bigotry against them.
This discussion came up in the context of Craig Mundie's comments that he wanted end-users to have "choice" between free and proprietary software. This word is tricky: on the one hand it conjures up some of the antitrust issues which have been raised against Microsoft (and I will say nothing about the great old Windows Refund Day). On the other hand it is a clever attack against those who say, as Stallman does, that Microsoft by its perfectly legal use of copyright is already doing something bad to the public. Thus Mundie appears as the great defender of consumer choice -- saying that the free software movement has its way, and Microsoft has its own way, and neither way is better or worse than they other, they are just different.
That general message is one I think Brett Glass would endorse (as a supporter of both free and nonfree software, in the senses used by the FSF), but it's a clever trick, it seems to me, as a response to a criticism that has moral overtones.
That is, if you criticize an institution and say that people should behave differently than that institution does, or at least that it's particularly virtuous to behave in a different way, the institution can respond with the very broad-minded, open-minded, pluralist, pro-diversity message "Well, there are lots of different ways of doing things -- we just want to make sure that people have a choice".
And actually the institution may or may not care whether people have a choice (I don't think Microsoft feels that it's important that people can choose free software instead of Microsoft products, but I do think Microsoft feels that it's OK). But now its critics look bad -- "We don't want to ban your way of doing things, but you seem to want to ban ours!".
And this tactic can be used whether or not critics actually think the institution's behavior should be illegal, because there are lots of ways to criticize something without calling for laws to ban it. (A few people have wished that Declan McCullagh would bear this possibility in mind in his news reporting, although certainly plenty of the people he reports on really are trying to ban things.) You can think that something is obsolete and wish that it would fade away or that it would reform itself or that its relevance would diminish; it doesn't mean that the thing ought to be a crime. And there is clearly an interpretation, if you read Stallman carefully, that proprietary software is an unfortunate historical accident, and not exactly a vicious crime, but really a big mistake, and if the programmers would only be reconciled to their traditional cultural values, they could keep on programming in a much brighter future...
That phrasing might sound arrogant to some people, but I'm confident that Richard Stallman respects and honors the programmers at Microsoft and wants them to have freedom along with everyone else, and generally holds marketing strategists like Bill Gates responsible for what Microsoft has been doing.
Back to the "make sure that people have a choice" argument: I think this comes up a lot in environmental activism and also in criticism of the content of mainstream television and movies. A company which has been criticized for its products will say "We want to make sure that customers have a choice". (As opposed to our critics, who do not want customers to have a choice!)
It's easy to understand this complaint in the regulatory environment we know and love or don't love, in that a lot of people are, in fact, trying to get certain products banned at any given moment. But a result of this environment is that a spokesman for some company will interpret any criticism as a call for regulation, which is not always accurate.
Jerry Mander's book Four Arguments for the Elimination of Television is fascinating, not just because of the "proposing to eliminate a technology" angle. I mean, I agree with several of his arguments (he actually has many more than four of them), but I would hardly want to suggest that the elimination of television should be effected through government regulation. (I did suggest in a high school debate tournament that the FCC's long-time policies on spectrum treated television broadcasters quite favorably, at the expense of other possible spectrum users.) I think of TV as having fewer harms and more redeeming qualities than drugs, which I think should be legal. There again there is something of the same issue -- why do drug prohibitionists own the "drugs are bad for you" territory and why are decriminalization supporters so often expected to be found saying "Oh, drug X isn't actually that bad for you"?
Well, I think I would not cry if drugs went away, or broadcast television as we know it went away, but certainly I think of the things I can do about either as very limited. But if I said (as Jerry Mander does) broadly critical things about TV, people might feel threatened by this, defensive -- "Are you saying TV should be banned?" "Are you saying we're bad if we watch TV?" "Are you saying TV should go away entirely?" Mander wouldn't be unhappy if TV went away entirely. It doesn't mean that he knows a way to get there or has a political program around banning TV. (I remember next to nothing from his book about political agendas, whether they're present or absent.)
From my very limited experience of Jerry Mander in that one book, he reminds me of Richard Stallman. (They are certainly very different; Mander is not an enthusiast of computing, to put it mildly, and Stallman is so much an enthusiast of computing that he has dedicated his life to preserving a particular set of traditions and practices within the computing world.) They seem like men of comparably high intelligence who are willing to make really broad criticisms when they think something in the status quo is harmful.
They both say that, if something looks bad, they're going to point out why it looks bad, however prevalent it is, however many people are making a living from it nowadays, and whatever else. I think there is a certain sense of anachronism that you get when you read this kind of criticism, as though Stallman and Mander really belong to a bygone era. One part of this is the way in which they each defend something from the past (a world of free software, a world of immediate experience) and criticize a well-established trend (the software industry, the TV industry; and extensive public experience as consumers, frequently highly satisfied consumers, of each industry's products). So Stallman is saying that we should go back to a world from the 1970s in computing (though transformed in the light of subsequent experience and cultural changes) and Mander is saying that we should go back to a world from even longer ago in media (though also transformed in the light of subsequent experience and cultural changes). In this way we can see each as a conservative, although each is also a radical. But the other anachronism that I was thinking of is that Stallman and Mander are not cynical.
(Of course, there is much more to Mander than his opposition to television; he's kept working since the 1970s, and I know very little about what he's been up to.)
In the passage I quoted above from the GNU Manifesto, Stallman says that many programmers, faced with the dominance of programming by the "marketing arrangements now typically used",
become cynical and think that programming is just a way of making money.
Note that Stallman isn't saying that these programmers like the industry or value what it has done. But he's saying that they grow cynical and abandon their previous hopes about what programming was or what it could accomplish or how it could be integrated with their other values; we could say again that they become alienated.
Not only does Stallman not become cynical in this way, but it's clear that he feels sorry for those who do, and wants to rescue them from their cynicism (by reviving the free software community of old). And his lack of cynicism is the other thing that feels funny these days; it's a matter of taking things seriously, including values and social criticism. So Stallman also feels that he is fighting against the greater darkness of programmers' disallusionment and disaffectation with their practice and with their communities. This is a big deal; this is a reason for him to take really seriously the criticisms he lodges against the industry.
How do you dig out from under the "we just want people to have a choice" argument if you really do object to what somebody is doing, and want it to stop, and think of it as obsolete or counterproductive? I mean, even people in the great wilds of Southern California may not be too happy with car culture, but it doesn't mean that any one of them is prepared to turn in his or her automobile.
A status quo is a tricky thing. Richard Stallman is careful to use only measures that are legal, and only measures that he thinks are moral, to try to change the status quo in software dramatically. Brett Glass thinks that the status quo, in broad outline, is fine. They really ultimately disagree about ends, about whether or not it is OK when people use copyright law in the common software industry way, about whether the status quo is seriously defective. And what could bridge that difference?
High school and college debate, once upon a time, were fascinating experiences.
