Subject: Re: Successful FSBs
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Mon, 30 Sep 2002 16:03:17 +0900

Executive summary:  Lynn's flames are neutralized via reflection.  FSB
relevance:  how liberal thinking leads directly to a successful _pure_
free software play (Cygwin and Ghostscript (probably could have been
pure)), and a partial economic analysis of defects of the "ransom
model" of funding free software development (footnote 2) as compared
using a proprietary license of a certain form.

>>>>> "Lynn" == Lynn Winebarger <owinebar@free-expression.org> writes:

    Lynn> What part of life in the company of other humans doesn't
    Lynn> have some dependence on the existence of social order?

None.  That's why I'm a liberal and a free software advocate.

    Lynn>       You'll have to explain further how this is "market
    Lynn> power" for the FSF (and no one else has the same,

Huh?  My point is that it _is_ exactly the _same_ market power that
all intellectual property uses.  The FSF chooses to use it in
different ways from Microsoft, which is good but not the point.  The
fact that it's the FSF's choice, and not mine, is what matters.

    Lynn> If you find the GPL onerous, you can and should write your
    Lynn> own version.

s/GPL/Microsoft EULA/ (or any or all Microsoft license(s)).  Score:
Lynn 1, anti-Lynn 1.  Dead heat.

In fact, I do not find the GPL onerous.  I don't hesitate to work
within its restrictions when that's to my advantage, which is often.
Neither did Perry and Beopen.  But I don't see the point in claiming
that it is not restrictive or that those restrictions are not backed
by the coercion of the state.

The point is that if the GPL is coercive, but we put up with that
because of the net social benefits generated, then we had better
provide a full account of the social losses _and_ the social gains
derived from "Microsoft coercion" (to the extent that it is legal,
which most of it is).  Maybe we should put up with that, too.

Maybe, and to some degree.

    Lynn>    You have a funny notion of "monopolization".

That's precisely why I put it in quotes.  It's a metaphor, not a
precise statement.

This is no different from the kind of metaphors that socialist FS
advocates are wont to use: "social responsibility" and (for extremists
like RMS) "slavery".  It just happens that I like the monopolization
metaphor, and you don't, and you like the "social responsibility"
metaphor, and I don't.  Well, you probably don't realize that "social
responsibility" is a metaphor[1], so I'm +1 there.

    Lynn> I don't believe RMS wants power over all software.

RMS wants to prevent me, and everybody else, from making certain
contracts with _all_ software developers for _all_ products.  I didn't
say he wants absolute power over any software.  But to the extent that
he wants power, he wants it for all software.

    Lynn> Copyright is a completely artificial construct.  Nobody has
    Lynn> any inherent right to play with different licensing models.

All property rights are artificial.  If your shoes fit me, why
shouldn't I take them if you're not wearing them?  No two-year-old
understands _others'_ property rights.  Even five-year-olds have
trouble with the concept.  It's unnatural, learned thinking.  As any
Native American or Australian aborigine can tell you, to his dismay
and my shame.[2]

As for the inherent right to play with licensing models, that's called
"freedom of contract."  It _is_ that simple.  For liberals.

    Lynn> Quite the opposite.  Any restriction on our fundamental
    Lynn> right to copy what we see should be on the terms of the
    Lynn> people as a whole, not on the terms of those who would
    Lynn> restrict our rights merely to serve their business model.
    Lynn> If you can't make money within the terms set by (a properly
    Lynn> balanced) copyright, you should take your ball and go home.
    Lynn> I for one don't need your invention/work that badly.  If
    Lynn> there are people who do, you can sit down negotiate a
    Lynn> private agreement with them.  Just don't try to take
    Lynn> advantage of selling on the public market.

Quite the opposite.  Any restriction on our fundamental right to to
show our product to only those we choose [privacy], should be on the
terms of the people as a whole, not on the terms of those who would
restrict our rights merely to serve their consumptive appetites.  If
you can't sate them within the terms set by (a properly balanced)
copyright, you should take your ball and go home.  I for one don't
need your money that badly.  If there are people who do, you can sit
down and negotiate a private agreement with them.  Just don't try to
take advantage of buying on the public market.

Score: Lynn 1, anti-Lynn 1.  Dead heat.

This moralizing is pointless.  Our arguments have exactly the same
form, they just give priority to different rights.  It's a dead heat,
and you can't avoid that.  Neither of us denies the right the other
cites, we just evaluate their importance differently.

I do think that you should consider that the historical assignment of
copyright to authors has a big practical advantage over the opposite
assignment (to readers).  Assigning copyright to readers prevents the
vast majority of license contracts from ever being written.  They
involve unborn readers, while an unborn author has nothing to contract
over, so it's no problem.  So assignment of copyright to authors
vastly expands freedom of contract (and therefore the possible a
priori _social_ gains from trade).

It also makes contracting much cheaper.  Authors generally do not know
with whom they want to contract.  Even modern marketing methods are
very poor at identifying potential partners (thus the popularity of
spam).  Readers, on the other hand, invariably immediately associate
author with title, and therefore can cheaply zero in on appropriate
partners (even if the author has transferred copyright).  "Properly
balanced" _from society's point of view_ arguably means the extreme of
assigning all copyright to authors![3]

Why should you care about these hypothetical contracts and a priori
gains from trade, when what you really want is access to Microsoft
Windows code for your own projects, and publishing source would be a
minimal resource burden on Microsoft compared to the social gain?

Here's a practical example.  Another way to think of proprietary use
of copyright is as an improved "ransom model": early buyers get the
software faster, and sellers get the money earlier (and more
certainly), than in the basic ransom model.  Everybody wins.  We
deal---theoretically---with the late buyers' losses by limiting term
of copyright to the ransom date.  In practice, that's difficult to
guess, of course, and will also be different for each product.  But
every scheme has practical problems.[4]  The theory is valid as far as
it goes.

Interestingly enough, two of the successful free software development
businesses (Aladdin and Cygnus) both have easily identifiable partners
for contracts concerning as yet nonexistent products: printer/fax
manufacturers and platform (CPU) manufacturers, respectively.  The
"nonexistent" is important, because it means copying is not possible,
or, equivalently, the copyright for the "first copy" is assigned to
the author.

Isn't it interesting how the liberal view of society so quickly leads
to identification of a successful _pure_ free software business model?

    Lynn>    The problem is that it isn't for "your own good", it's
    Lynn> for the good of human society as a whole.  Two different
    Lynn> things.

You are declaring my right to decide things for myself to be
irrelevant is irrelevant to my own good.  Word play aside, have you
thought that through?  How do you reconcile that with your "love of
freedom"?  Ie, under what circumstances would you deny the good of
human society as a whole because of one person's freedom?

    Lynn>      As long as it's not an attempt to exclude those freedom
    Lynn> loving individuals who recognize that living in a society
    Lynn> comes responsibilities, and it's not their right to decide
    Lynn> what those responsibilities are.

It does exclude such thinking.  A liberal believes that an
individual's freedom limits the responsibility that society may
impose.  You clearly believe the converse.  Choose a different halo
word for your own beliefs, please.  We had "liberal" first.

Please note that I do not reject the values of the "good of human
society as a whole" and "social responsibility" on which you place
such high weight.  I also place great value on them.  However, as a
liberal I _construct_ them based on aggregations of _individual_ good
and responsibility to _individuals_, and therefore end up weighting
freedom more highly than you do.

    Lynn>      As I understand it, the FSF's copyright assignment form
    Lynn> gives the original author complete rights to distribute
    Lynn> his/her code under other licenses.

My take is that it does not allow that author to relicense (that would
nullify the assignment), which is what would be necessary for
_Aladdin_ to do the distribution.  But ask a lawyer; I have yet to
find one who is willing to interpret that clause, even off the record.[5]


Footnotes: 
[1]  Yes, it's a metaphor.  Making sense of it requires either
accepting the metaphor or a multivolume philosophical dissertation.  I
doubt that you can come up with a terse definition that a liberal can
accept.  OTOH, I'm pretty sure your definition of "freedom" is usable.

[2]  Yes, an American liberal can feel shame about the massive land
fraud called "the United States of America."  I don't know what to do
about it, but it is a shame.

[3]  Note that, once again, the principal economic argument against
lengthening copyright term (for new IP) has exactly this form.  Ie,
over the years it becomes hard to find and identify authors, so that
requiring readers to get permission becomes an unacceptably large
transaction cost.  See also the discussion of the ransom model.  So
"properly balanced" surely does not mean infinite term, and is
possibly compatible with fairly short term.

[4]    But ransom has its own problems.  The obvious one is the free
rider problem that implies that the ransom date will be later than it
"needs" to be, and perhaps will never come.  The less obvious one is
that in order to compute one's own "fair share" of the ransom, each
would-be buyer has to solve the firm's "customer identification"
problem.  (This is independent of, but made worse by, the free rider
problem.)  This is wasteful duplication---the firm should do that.

[5]  One did joke that a lawyer's first guess would be that in that
clause "use as the Author sees fit" refers to _running_ the code.
This is actually plausible in that there is no obligation for the FSF
to distribute your code, and therefore you may have no rights to it
at all in the absence of explicit FSF permission, unless you have
previously distributed it under a free license!  This is of practical
significance for those who have, as I have, signed assign.future.


-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
 My nostalgia for Icon makes me forget about any of the bad things.  I don't
have much nostalgia for Perl, so its faults I remember.  Scott Gilbert c.l.py