I have not yet found the time to make this shorter ... On 5/10/05, Raul Miller <[EMAIL PROTECTED]> wrote: [snip] > The only reason copyright applies to computer programs in a > legally significant fashion is through the concept of derivative works. > Computers operate by transforming the representation of a program > from one state to another. If you claim that these translations are not > derivatives of the original,and that no creative work went into the > translation, then you're claiming that they're not copyrighted works, > and thus not subject to copyright protections.
It's simpler than that, and a whole lot more complex at the same time. Copyright does apply to computer programs (even when compiled down into blobs not intended to be read by humans) in a legally significant fashion, for a simple human reason. Judges caught in the middle of shotgun cross-complaints resulting from failed business relationships couldn't figure out how the heck else a computer program was supposed to be tradable property under existing statutes. (For once, I'm not going to cram in links to enough case law to supply the hypothetical d-l reader who cares with a month's bedtime reading; I'm winging it here.) When I try to reconcile early case law -- just from the US circuit courts -- on the copies, derivative works, collections, and dungheaps made during run-time, and which routine uses are infringing and which aren't, the little engine in my non-lawyer head threatens to throw a rod. And that's still how it is thirty years later, because the people whose job it is to do something about it have run aground. Instead of a workable Federal statute, parallel to copyright, patent, and (Federal) trademark -- something that balances public and special interests to set ground rules for fair trade in this new class of intangible goods -- we in the US get abortions such as patents on mathematical laws and business models on one hand and UCITA (a dead letter outside the DC catchbasin) on the other. And can you really say that Europe or Latin America or Australasiafrica is doing any better? What do we have in place of law? Fun-house-mirror parodies of contracts called EULAs. The other day, I bought a "digital pen" and a notepad with a funny dot pattern that it needs to work its magic. Of course the pen comes with its own EULA, as does each layer of the associated software stack. I looked through it a second time to see if there was a EULA for the obscenely marked up paper in there too, got a headache from the fine print and the mush-mouthed gobbledygook, and I'm still not quite sure. EULAs aren't a tradable property right, they're concentrated essence of FUD. Whatever happened to "possession is nine tenths of the law"? Copyright alone is not the right answer, even for source code. Annotated source code, in a condition that humans can access the ideas and expression it contains, is near the goal-oriented end of the spectrum of "literary or artistic works". It's sort of like a dress pattern or an electronics project book -- or indeed an "arrangement of music". You read it for enlightenment and entertainment, and then you start monkeying around with it. And when you interpret it to create your Very Own Project, you can make it look Just Like The Cover Model's, you can ad lib it and wind up with a Halloween costume, or if you're the Flying Karamazov Brothers you can knit the electronics project into the dress and make it play the arranged music when you juggle. That's some derivative work! Now, the _perfect_ Little Black Dress isn't made by picking the Right Pattern; you gotta pick the Right Pattern for You. That's why certain genius designers, and a lot of mere programmers, like the GPL. Construed under a legal theory that isn't total crack-smoking lunacy, it's a superb way to deal with the large and growing corpus of source code that consists of a few familiar ideas -- hopefully expressed by now with vigor, style, and a mature perspective on what works and what doesn't -- floating in the soup of mundane arcana needed to make it work (even turn heads) on the hardware you happen to have. You're going to need that collective wisdom, a modicum of technical expertise, and all your sense of style, and then you start hacking things away right and left because you're making an LBD, not a gunny sack to keep the rain off. But almost no one buys a dress pattern just for the entertainment value, or to keep their brain's /dev/random stocked with entropy; they buy it so they can make That Dress. Sure, in some sense That Dress is a derivative work of the pattern, but who really cares? It's not like somebody's going to set up a women's (men's too, where I live) clothiers by ripping off that one pattern. A dressmaking business is hard work, takes materials and labor and eagle-eyed inventory management, and reaps economies of scale in design and distribution. What capital you do invest is needed to buy a few machines, finance a lot of receivables, and survive the day you run a batch of a thousand XXXL instead of P and the summer that sundresses just won't sell. Generally the amateurs worship the pros at a distance and maybe golf with them if they get lucky. Publishing dress patterns on tissue paper isn't a whole lot different from making and selling dresses. Sure, you've got authors to deal with, but you hire manuscript readers and copy editors and hand-holders and there's a process to follow from one year to the next, and you've still got a few machines and a lot of receivables and that last print run of XXXL For Dummies (TM Wiley Publishing Inc.) to remainder or shred. And golf. That's the world that copyright is tailor-made for, with all its translations and adaptations and anthologies and agencies so you don't have to deal with Hunter S. Thompson in person (God rest his soul). A publisher does need a little help from the law, over and above some binding statutory codification of the practice in his industry; but not too much. The "customer" who rips off a hundred dress patterns seriatim, or runs a few through today's fine home copier technology and sells the copies through eBay, needs to be given something to fear. A preliminary injunction is a clumsy club to wield against the small-time chiseler, but using a tissue-paper-printer-locked-e-book rapier blindfolded is apt to skewer a more or less innocent bystander. And it engenders more puzzlement than fear for the law in the kid who fails to feel lightning strike when his school librarian lectures him for doing a little desktop republishing of the textbook page he spilled cherry pop on. That kid is now your customer, your employee, you. That's part of why Software is Different. The rest you've heard. Wacked economics. Wacked personalities. This guy in the basement who wore a dress the one time you met him gets startup fever and leaves, and all of a sudden you can't make release builds of your bloody product anymore. You never know where you stand on license residuals, what kind of skills to hire this year, or how to identify that one indispensable guy (hint: he probably looks like RMS and codes like Linus Torvalds) so that you can fire him before everyone around him becomes incapable of functioning without him. Your sales are 99.3% gross margin but Engineering can't predict a deadline to within six months. Your customers love you and hate you and burn phone support time like it was Iraqi oil and will steal you blind if you stop to read your e-mail. You get to where the only people you can stand talking to are your house lawyers. They get out of bed with the handsome twins from Marketing Communications just long enough to tell you they've got a brilliant scheme to lock up this year's laser-focus target market of People Who Can't Live Without A New Little Black Dress. So you cross your fingers, tell QA to quit harassing Engineering about spontaneous reboots, and send your software out into the world while it's still in training pants, EULA loaded for bear. All of a sudden the shreds of tissue paper on my sewing room floor are a Derivative Work, and my living room is a Copyrightable Collection, and I'm not buying the pattern at the fabric store any more but downloading it and clicking through a seventeen-page Limited License to Make One or Fewer Dresses. My license key comes in the mail with a hologrammed Certificate of Dress Authenticity that I have to attach to my right butt-cheek before my dress will let me zip it up. God save me if I put it on the left. Fetching dress accessories pop up, suggesting that I invite Big Brother in to answer my questions about hem measurements and licensing compliance while kneecapping me just in case. You don't need this BS when you're dealing in a legally and socially well understood intangible good and your customers can't kid themselves or anyone else when they rip you off. Contracts aren't for retail, they're for B2B relationships and bank loans. So copyright alone clearly doesn't work for software, or for that matter anything else whose end-user format is a blob of bits. Too damn easy to steal, and anything you try to do about that makes it suck more than it already does. Unless, of course, you give it away. Then you start charging people a dollar a minute for answers and five dollars a minute for right answers, unless Mystery Guy's already looked at it in which case it's a hundred-dollar flat fee (it's going to be a hard one but you'll get net help out of him). That's based on some kind of rational cost + profit economics instead of an endless overhang of sunk costs and residuals. Dumb looks, of course, are still free. This, surprisingly enough, works even though it makes sense -- ask IBM. Hmm, that only matters for stuff that raises questions instead of answers them by itself. But that, actually, is where the money in _software_ is (as opposed to software monopolies) -- stuff that lets you do more, better, so you have new questions to ask. Add a premium for real originality, too, if it's clear that some kinds of innovation can't be funded without it. Software patents are anathema around here and I'm not even going to try to root for them when today's USPTO is playing goalkeeper; but believe it or not, that would be fixable if software economics wasn't a pipe dream. But patents aren't enough; we need a tradable property right in brain candy. Copyright we already gave up on. Trademark solves a real problem for businesses with a reputation to protect, but doesn't do a damn thing to create a tradable property right at the retail level. Not unless you pull a Red Hat and use it as a hook to hang a EULA on. Trade secrets aren't tradable, they're torts waiting to happen. What's a girl to do? For starters, you recognize that bits on disk aren't really a single type of good, they're two. No, not 0s and 1s. Not Program and Data either, that's so 1950. You've got your digital "soft goods" like recorded music and movies and e-books and video games and other kinds of e-toys -- consumables that people feed into orifices other than their mouths. And then you've got the software that runs the world. Who really gives a rat's ass what the digital world's rules for the e-toys are? It's not like we can't fall back to vinyl and videotape and paperbacks and non-3D-graphics-assisted wanking if we can't make the digital versions work without the Bit Police. Oh yeah, Big Entertainment is Big Money; they don't follow rules, they make them, and they like their zero COGS. Fine, let them make the rules -- for the e-toys. Let them do it the old-fashioned way, by fighting it out in court while you referee. If you work at it -- and if you don't play the FSF's "can't link my peanut butter against your chocolate" mind games -- you can probably find a nice bright line between toys and important stuff. That leaves the software that runs the world. You know it when you see it, though sometimes it sneaks up on you; Emacs and Linux started as e-toys. Which brings us around full circle back to the non-crack-smoking GPL; only this time as a matter of public policy instead of as a model of how genius designers work anyway. I don't want my 911 dispatcher's computer to be wearing a gunny sack, or for that matter the sort of LBD that won't zip up unless you remember to stick a hologram on your butt. Tends to distract from getting the ambulance there before I bleed out. So look really hard at the law and figure out what the GPL means. Now look at public policy and figure out what it should mean. And then say that's what it means after all, and by the way if anybody wants to be the couturier to an emergency dispatch system five years from now they have one and only one option in LBD EULAs, and that's the GPL. Because it _works_, even though people can't agree on what it means; and that's a sure sign of good law. And the dog's breakfast of software license agreements, end-user and otherwise, that we have now _doesn't_. Same for my taxman and for crying out loud my legal system. Same for the giant industrial combinations that have far more control over the details of my life than any government in the history of mankind. Same, even, for Big Entertainment -- although if you look past the soft-goods aliasing factor, they're already figuring it out for themselves, probably because porn, gambling, and Make-Money-Fast have been the economic drivers of the Internet since before the Year September Never Ended. Oh yeah, we have all of those Intellectual Property Assets on corporate America's balance sheet to protect. Well, I've got good news and bad news. The bad news is that they don't exist; the market for true "intellectual property" is a labor and services market -- not retail and certainly not capital. What you're doing is capitalizing the caput of Mystery Guy and hoping that he stays in the basement. The good news is that, once you admit that it was all a Wall Street fantasy, you can relax; Wall Street sustains its fantasies without need for judicial assistance. And they'll never miss Mystery Guy as long as you find him and fire him and then buy his services on an hourly or weekly or project basis like God and RMS intended. Oh, and if he's really _that_ good, he'll look like Linus Torvalds and code like RMS. So yes, U. S. Federal District Court of Indiana, take the GPL away from us open-source zealots. And put it in the law books where it belongs. Cheers, - Michael (RMS, Linus, if you ever read this I hope you think it is funny and not insulting.)
