Software copyright
Dave Winer's comments in the famous Winer-Lessig-various people discussion are really starting to get to me. I'd like try to explain a few of the reasons.
First, re Lessig's proposals, or ideas:
Lessig suggested that software copyright holders should have to provide their source code to the Library of Congress, in escrow, so that it could be released when its copyright expires. Winer wants to know how this is going to be enforced.
Source code escrow is enforced by making it a condition of copyright, the way there used to be a deposit requirement. The deposit requirement has now been wiped out, but in the past there used to be certain expectations of anybody who wanted the benefit of a copyright. It really ought to be called source code deposit instead of source code escrow.
Source code escrow is not enforced by making it illegal to publish binary-only software. Critics of critics of software copyright keep on saying "Do you want it to be illegal to ...?". That happens to the Free Software Foundation, too: they get accused of wanting to imprison people who publish proprietary software, or something. At most, the FSF would like to cut away some of the legal mechanisms which facilitate keeping software proprietary. (One way to do that is to abolish software copyright, and another is to limit software copyright in any number of ways. Source code deposit could be one of those; compulsory licenses could be one of those; reducing the term of software copyrights could be one of those. I can think of three or four others. All of these are just limitations on what you get with a software copyright or how readily you can receive one.)
Lessig talked about a program Winer developed called MORE (which has disappeared, having been discontinued by the company which bought it, and can't be legally obtained now for love or money). Winer replied with a claim that Lessig's proposals would have precluded MORE's creation:
Had we been forced to release the source, I don't think we could have sold our investors on taking a chance on us, or realized the great return we got from the Symantec deal, and gone on to develop more software. The system you describe just wouldn't work, you wouldn't get any of it.
But this is ridiculous: Lessig suggested that source code needed to be escrowed, not released. There's no reason that the knowledge that the Library of Congress has a copy of your source code in a vault should make it any more difficult to bargain with investors, especially if all of your potential competitors' source code is also in that same vault.
Winer goes on to quote another MORE developer, Brad Pettit, in particular support of his position. Pettit does suggest that the source code wouldn't be very useful to the public today:
Probably 99% MPW Pascal with a little C and even a bit of 68k ASM for good measure. All pre-Universal Headers. Pre-PPC. Dense code. Lots of Pascal language features taken full advantage of: nested procedures, function parameters, etc. But you know that.
Fair enough (though Pascal's an awful lot easier to read than machine code, and it's not as though there aren't Pascal programmers out there; there are even COBOL programmers). Pettit also provides some direct support for Lessig's suggestion that source code ought to be escrowed somewhere:
A few years ago, Symantec asked me where they could find the code (how f-ing irresponsible is that?). I never could quite understand because the source for every release, on multiple floppies, was to have been in some vault somewhere. Go figure. Anyway, they were going to show the source to an outside party, but I don't know why. They tracked it down when I told them about the drive.
That's right: the copyright holder almost lost the source code forever after allowing the project to die. That's a large part of why there used to be a deposit requirement for copyright in general, to prevent creative works from being lost to posterity after they disappear from the mainstream commercial market. According to Pettit, that kind of loss nearly happened with MORE.
Second, in general:
Winer repeatedly accuses Lessig and other proponents of copyright reform of threatening Winer's profession and livelihood. (Sometimes he makes this accusation very vividly, but, hey, Dave Winer's a vivid writer, and I know some others of those.) He responds with a threat of his own: if copyright (after reformers get their way) is not sufficiently protective of his interests, he'll lose his incentive to develop software, and he'll go off and become a potter!
If n years of copyright for published software are not good enough for Dave Winer and he goes off to make pottery, that doesn't mean the end of software development. There was software development long before there was copyright for software at all. There are software developers who don't rely on copyright as any part of their incentive to develop software. I surmise from some of Winer's rhetoric that he doesn't think that those developers are, in general, "innovative" or "original" and that they're all just re-doing things which, you know, the real software developers (who like copyright) actually thought up years and years ago...
This gets to me, too. I've shipped tens of thousands of physical copies of my software product, I've just now spent a couple of hours checking patches into CVS, but I feel like I'm not to be considered a real software developer (by Winer) for some reasons, which could include:
- my product wasn't "technically innovative" (even though it was the first such product in its category)
- my coding contribution was short (on the order of 1KLOC instead of 10KLOC or 100KLOC) and the majority of the product's content is derived (with permission) from other people's work
- I didn't try to control how people used or copied the product
- the work on the product was underwritten by organizations which did not derive revenue from it (and, even worse, were funded by venture capitalists during the late 1990s, or, what comes to the same thing, by charitable donations)
- I don't make a living from software copyright, or even from writing software at all, and I've never made a living for more than a month or two developing software
On the other hand, I did develop a software product and shipped tens of thousands of physical copies and I have a couple of dozen glowing reviews from users floating around. (They are really glowing; they say things like "indispensable" and "saved my ass" and so on.) So I say that is real software development experience, even if not in Dave Winer's corner of the programming world.
Part of my confidence that software copyright reform could be non-catastrophic comes from my confidence that the free software community is making steady and substantial progress. I recently installed Debian GNU/Linux on an iBook -- not Debian's native platform -- and I had a couple of observations:
- The installation was actually pretty easy.
- The software works well, is fairly well integrated, and isn't horribly buggy.
- The software supported most of my hardware right away, even though I was on a Mac, including things I didn't expect to work, such as sound, the AirPort wireless card (with DHCP), and a battery status indicator.
- I was able to get XFree86 working in about 10 minutes, which may seem like a long time, but is impressive when you consider that XFree86 is also not native on this platform, and that I spent practically an entire summer internship in 1995 getting it running properly on a single Intel machine.
Now, before I installed Debian on this machine, I pronounced myself impressed with MacOS, and what you can accomplish by way of integration and functionality when you have proprietary control over hardware and software. It's really well integrated, and, as people have pointed out, generally easy to use. Apple has been able to define and enforce some very detailed standards for APIs and UIs all throughout the system, and they've been able to debug extensively against a closely controlled platform. And the results of that are impressive. You can expect programs to work together; you can expect aspects of the system to have been thought out with Single Vision (notwithstanding Apple's attempts to contrast themselves with other people who exerted a lot of control over their platform and their users). So, for example, on Linux, your printing subsystem may have been provided by any of several different groups of developers. (I can think of BSD lpr, lprng, and CUPS offhand, and I think there are one or two more. It's complicated enough that, like rival superpowers, the developer groups gathered at a Printing Summit, and it's still pretty complicated, and you're likely to run into integration glitches. And that's not because the software isn't good, necessarily, but it's at least in part because there isn't a single vendor-mandated printing infrastructure that everybody uses.)
But back to my experience with Debian on this Apple hardware.
My experience tends to confirm for me what I already believe: computing works well without proprietary software. Proprietary programs are still ahead in the mindshare and marketshare race, but I think they're still losing ground, and the alternatives actually work.
It's way beyond experiments with fuzz in 1990. I notice that most of the programs which Debian installed weren't even written at all when I started using Linux at home in 1995. (I used to install Slackware, and it used to show me each package it installed before installing it. It could even be instructed to prompt me about whether or not I wanted to install a package.) I noticed this because I literally didn't recognize most of their names. So people keep writing free software all the time.
Very few free software developers are relying on commercial incentives provided by copyright law. But, somehow, they're still writing software. I remember that somebody wrote, in response to a suggestion that economics would preclude free software development, that free software development is a fact, so, if a particular economic theory can't account for it, that theory is deficient; reality isn't.
Software copyright is probably promoting the progress of science and the useful arts by providing people like Dave Winer the opportunity to write software commercially. But people shouldn't be intimidated if he threatens to go make pottery. No single incentive is adequate for everybody, is it?
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