Subject: Re: on software freedom and patents
From: "David H. Lynch Jr" <dhlii@comcast.net>
Date: Tue, 05 Dec 2006 01:36:47 -0500

Stephen J. Turnbull wrote:
>
> Uh, what do you think Richard Stallman has been doing, with a complete
> lack of success, for the last 25 years?  
    RMS has been utterly unsuccessfully at directly persuading anyone of
anything. In that you are absolutely correct.

    On the otherhand, the views of the FSF as a whole are taken at best 
as mostly some utopian and unrealistic view of the world.
    Yet at the same time, Free and Open Source software are vastly more
significant and viable than they were when Richard started.
    The GPL is a fairly close approximation to the values of RMS and the
FSF. Most within the software community including the likes of Linux
Torvalds think Richard is lunatic fringe, yet Linux and most Open Source
software are Licensed under the GPL. And with all deference to Linus,
Linux at best would be another BSD like Unix wanna be without the GPL.
Sun is GPL'ing Java - too little and too late, but still they are doing
it. Through the GPL RMS has vastly reshaped the world. Patents,
copyrights and licenses have the force and immovability of legitimacy.
But the GPL has in essence co-opted the way the system to work - in the
instance of GPL'd software in a fashion very close to how Richard
believes it ought to. Richard is constantly on the defensive, but at the
same time he is also on the attack. There is enormous hand wringing over
the GPLv3. The kernel developers are wringing their hands of it and
declaiming it  - but then again in their hearts they do not really
accept the GPL that is very nearly their life blood. I think if most of
them thought it were truly possible, they would change to something less
radical and more to their liking. They do not fully appreciate the
significance of the GPL to their own success.
      The GPLv3 will come into being. Hopefully it will continue to
aspire to be what previous GPL's are  a subversive and radical license.
It is extremely important that like the GPLv2, it actually works. But if
all the GPLv3 becomes is a new coat of paint over the GPLv2 - then we do
not really need it. It is better for the GPLv3 to be the same kind of
shot accross the bow radical document as the GPL is and to fail, than
for it to whimp out. If all we need is something like the GPLv2 - we
already have it.

    For all of the purported extremism of the FSF, and the radical
nature of the GPL, what is most remarkable about it is that it works. It
is a license that defines Richards utopian vision of how software ought
to be, not how it is, and yet it works. I would argue that it does not
succeed in spite of the radical views of Richard and the FSF, but
specifically because of them. More interesting, it in essence uses the
law and the IP system against itself. I would be happy to see the courts
invalidate the GPL. It would be extremely hard to do so without
invalidating all software licenses - it might actually be harder to
invalidate than other software licenses - the GPL has an explicit quid
pro  - you get more rights that you would have had eitherwise in return
for abiding by its limitations. You are never restricted more than an
ordinary copyright.

    Don Quixote died without inflicting much damage on the windmill.
Richard has the blades of the windmill fighting amongst themselves.

    And finally, whether Richard persuaded anyone or not, altering -
limiting the IP system - in potentially radical  ways, is increasingly
being considered - not by ethical radicals, but by ordinary engineers,
and even big corporations looking at their patent portfolios, their
cost, and their purpose, and increasingly pondering whether the whole
patent system has merit at all.

    I think but for the pharmaceutical industry there would be extremely
radical patent reform NOW. Even in the area of Software Patents - while
I do not think software patents are any less absurd than other patents,
the view that software patents are a bad idea is nearly universally
accepted by all but a very small (and unfortunately powerful) minority
of players - and they are on the defensive. I am not trying to promise
that the EU will remain a permanent bastion against them, or that the US
will reverse itself on the issue tomorrow. IP still suffers from the
serious problem that ordinary people do not know why they should care.
Lessig lost against the Bono Patent extension act specifically because
valid arguments and passionate arguments people care about are not the same.

    I would be very hard pressed to name a software developer that
thinks software patents are a good idea. The only thing they are wrong
about is their belief that somehow software is special.
As other areas of engineering start to become more like software more
members of traditional bastions of the sacredness of patents and IP are
beginning to have second thoughts.

    One particularly troublesome problem is that as the expansion of
knowledge accelerates, the inherent unfairness of the proscription
against independent invention becomes increasingly absurd. The more the
pro-IP forces cast their arguments in real property terms using language
like "steal" and "theft" and "ownership", the more we are forced to face
some of the absurdities of the IP system.

    I beleive that IP is not only absurd, but also impossible. That
modern IP problems are the direct result of the fact that the more
technology makes things instantaneous the more it reveals the flaws in
concepts that depend on time for validity. IP is impossible because the
legal fictions it is based on depend on the fiction of distance and time
between idea and implementation.

    But it is not important what I beleive - even less people are
listening to me that Richard. But there is near universal concurrences
that the system does not work. There are only fundimentally three major
approaches to fixing it.

    Abandon it - the failure of the existing system is not so great that
stands much chance of happening, - though more an more people - people
that are not the hypothetical ethical intellectuals persuaded by Richard
are question the system - even positing if it is worth it at all. And
that is very significant.
   
    Try to fix it by tweaking it arround the edges. The most likely
approach. We can find all kinds of tweaks  that just might somehow make
the system  less dysfunctional. This is actually the most dangerous
approach. It solves nothing, but it forestalls the day of reckoning.
This is what is likely and the result is I will not likely live until
the inevitable collapse of the IP system - because I do beleive the
impossible must fail.

    Swing the other way - do what we have done with copyrights, make
them stronger and longer. I will  fight this vigorously - but it is also
likely to be the quickest route to the collapse of the system. Making
patents literally the ownership of ideas, making the terms longer,
making the strength of a patent greater, makes the absurdity more
obvious. If a stronger patent system fails we are not going to return to
the weak one we already know is failing.

    In the end software freedom, is in direct conflict with intellectual
property rights. It is not about some tangent niche community living on
the fringes, but a clash of ideals. To a large extent Richards
exhortations may have fallen on deaf ears, but the core of software
freedom is that ideas are not property. There can not be an exception
carved out in law for a position anti-antithetical to the law itself.
There is a large and successful free software movement, and beyond that
there is an order of magnitude (and increasing) larger Open Source
community that  is trying to find uneasy peace in an intellectual
quagmire. Without directly adopting the  positions of the FSF they are
still forced to defend them, because there is no way to sacrifice the
"extreme" views of the FSF and RMS without eventually sacrificing all
Open Source software.



-- 
Dave Lynch 					  	    DLA Systems
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