Subject: Re: open source definition
From: Craig Burley <>
Date: Mon, 27 Apr 1998 09:38:33 -0400 (EDT)

>> There's something else about music that's importantly different
>> from software.  In fact, it's what makes software inappropriate
>> for coverage under copyright law in an "ideal" world:
>>   Software is functional.  Music is a creative, artistic expression.
>I thought about composing a long, reasoned reply to this,
>but decided that my disagreement is rather simple and
>fundamental. Suffice to say, I disagree with your point of
>The creation of software *is* a creative act. Some aspects
>of the mechanics are not creative, but imagining and
>bringing into existance software, to me, is most certainly
>a creative, artistic endeavour. I'm sorry you don't see
>the beauty and art involved.

(I guess it's impossible to post anything reasonable on the Internet
without *somebody* claiming he knows what's going in your brain.)

For the rest of you who can *think* about what I actually wrote,
I hope it's clear enough that I never said *anything* about there
being no beauty or art in the *act* of creating software.

What *wasn't* quoted from my original post was this:

>>(No question software includes
>>artistic expression, or that art includes functional elements; I'm
>>not talking about the exotic fringe stuff, because that's not
>>what people care about in either instance.)

(I think it was plenty clear that, by "people", I meant those
actively interested in exchanging goods and services for
the ability to obtain, especially copy, software.  Certainly I,
and many others, care about artistic expression when we *write*
software, but that's not when we're considering how much to
pay for someone else's software.  Nor, if we're going to expect
to have a clue about how much our software is worth to someone else,
is it when we're considering how much to *charge* for our own

There's also beauty and art in the act of human procreation.  If any
of you think the *product* of that act, and hence the reasons billions
of creatures engage in it every day, is fundamentally "to produce art"
as much as painting on a canvas or composing a new tune, rather
than "to produce offspring" (human, animal, whatever), feel free to
chime in -- I could use a good laugh right about now.

The reason I posted my points was to get people *thinking*.  Peter
chose not to do so, IMO, instead just decided to react and claim I
couldn't see the beauty and art involved in creating software.

Look, I've been writing software *and* playing music since I was
in the 4th grade.  I.e. around 9 years old.  I know *everything*
there is to know about the *fundamentals* (hardly all the skills)
of what it takes to do both, plus I'm (slowly) getting a handle
on composing music.  If anything, I know more about software than
about music.  (I didn't do much of anything else, including dating,
until I was in my late '20s.  So I don't mean "I did some occasional
programming and toodling of a sax starting at age 9"; I mean "I
pretty much was a software and music nerd with little else that
distracted me from age 9 through about 28".  :)

So I know first-hand how much creativity and artistic expression
goes into writing software; and how much "functional" stuff goes
into composing.  (I've probably got a fair mixture of both, but my
lack of functional composing skills prevents me from enjoying
actually undertaking that activity; I compose plenty of new music
in my head lots of the time, but don't yet have the ability to
efficiently write it down, nor to play it on any instrument.
When it comes to programming, I try to keep my very strong creative
and artistic urges in check, at least for most of the sorts of work
I'm doing for others.)

*The* reason software copyright issues are so widely and heatedly
discussed; *the* reason you can get federal prison time for making
10 or more copies of a floppy containing Microsoft Excel; *the*
reason people pay so much more for a *single* copy of a really
important piece of software than they will have for their entire,
largish collection of CDs is:

  Becuse 99.5% (or so ;-) of the people who buy software care not
  one *whit* for the creative and artistic elements that went into
  its *creation* -- they care almost *exclusively* about whether the
  software *does its job for them*.  And that job is almost entirely
  functional, one they need or want to have done, and are willing to
  pay some serious money for.

I know what I'm talking about.  I've been working mostly on Fortran
compilers for more than ten years now, and getting paid quite a bit
for some of it (the rest of the time, I'm volunteering).  Nobody
has *ever* asked me how creative I am in this work, or gathered some
info on my artistic abilities, or commented on how graceful my code
is; they pay me because I get the job done.  (Yes, *I* think Fortran
has a certain inherent beauty deep in its soul...kind of like
Barbara Bush...but that's not why most people pay big money for
Fortran and related iron!)

Now, with the fairly notable exception of the MacOS and stuff like games,
few people give the creative and artistic elements more than about
.5% consideration before plonking down a huge amount of money to
buy software.

Yet, somehow, when it comes to auditioning to sing in a chorus
or some such thing, my artistic sensibilities are *so* much more
of an issue, even though functional things (like the degree to
which I'm able to sight-sing new music) are still involved to
a degree.

Why do you think that difference exists?  *I* think it's pretty
obvious: that people paying me to write software just care a lot
less about how artistically I do it than people paying me (well,
I'm an amateur, so really "allowing me to take up some time in
a public performance they'll be putting on") to sing.  The end
product in the former case is not fundamentally an artistic one;
in the latter case, it is.  I know you disagree with that, Peter,
even though I think it's as plain as the nose on one's face,
so can *you* explain why I so *consistently* experience these
distinctions between software-programming and singing "auditions",
if it's not due to any big difference between software and music
as regards the importance of artistic expression in the final product?

IMO, it's all that *money* going into the hands of *software* producers
on a per-copy basis that drives VCs and other investors to be willing
to provide the capital to spend more and more money up front to
design and deliver a huge, expensive software package that then
must have its "security" defended by a vast array of laws (mostly
copyright and patent), lawyers, and other enforcement mechanisms
to make sure that all that planned-upon income from the software
actually materializes, assuming people really want to run it in enough
numbers.  If it *wasn't* for that, I'd probably not have gone into
writing software, but into composing music (probably not performing,
I don't find it that rewarding, although that's about the limit of
my current involvement these days) -- not just because of all the
money that comes from this mechanism, but because I'm so much more
certain that lots of people will "enjoy" (get good work done using)
my programming efforts than I fear would enjoy my compositional
efforts, since they're spending so much more money for good bits
of software than they do for good bits of music.

The same mechanism governs a *small* portion of the arts, e.g. the
pop-music industry.  Due to the fact that art is *not* functional
in any important way, people just don't expect to pay $500 for a
CD containing the latest Gloria Estefan album, despite all the
*incredible* technical effort that might have gone into it.  (Any
unusually high prices people are willing to pay are almost certainly
going to be for one-of-a-kind, or artificially constrained, cases,
where even copies made by the recipient, if legally distributable,
would not have nearly as much value; few people want to spend a
lot more for a *software* product on the basis that "then I'll be
one of the few who owns a copy of Prototyper 3.0".)

I've yet to see *any* proposal that comes close to preventing
me from doing what I regularly do: hear a pop song on the radio
or TV a few times, and, without making any purchase, listen to it
whenever I like (too often, when I'd rather not ;-) from memory.
They can't keep people like me from doing that, so they don't
bother going to a lot of trouble (and expense) trying to make
songs difficult to reverse-engineer, which, in today's terms,
means, at least, delivering software without source code, but
usually involves more active mechanisms (like copy protections
or software/hardware license-dongles).

Nor can I recall getting any important work done using an in-my-head
copy of Emacs.

This helps explain why it's comparatively rare for capital to be
deployed in the creation of a large-scale new artistic work,
say a new symphony, in the art world; whereas it's relatively
frequent for the equivalent thing to be done in the software
world.  (And if you look at enough actual examples of large-scale
funding of new, long-time-in-creating, art, you'll probably notice
that most of it is very caught up in being functional, such as
new buildings designed by a novel architect.  In such a case,
copying is almost not worth worrying about!)

>> Copyright law is fundamentally designed to promote creating unique
>> works.  It does that by providing a dis-incentive for copying, or
>> building on, someone else's work.  . . . 
>I refer back to the point about allowing others to
>reproduce a song. Joe Cocker's version of "House of the
>Rising Sun" is seminal, but it's certainly not the only
>one. In fact, it wasn't even the first. Some of the things
>rappers do With "deejay" effects, combining existing
>songs, etc clearly build new boides of work from old.

What people do in fringe cases is interesting, but not what I was
talking about.  Though, it's exactly those fringe cases in which
art becomes correspondingly more like software in terms of how
the copyright and licensing issues are worked out; and vice versa,
I suspect, for fringe cases of software that is more like art.

Bach was happily copying, and modifying Vivaldi before copyright
law came around.  I find Bach's version of Vivaldi's Concert for
Four Violins preferable (Bach uses harpsichords).  Copyright law
and licensing did *not* enable the sort of building-upon-other-
works activity you go on about; in fact its purpose is to
provide a dis-incentive for it, by transferring some of the
necessary incentive to the "owner" of the original work, who
tends to prefer *not* having people freely copy his stuff (that
is, without some sort of recompense he gets to agree upon).

If you think software and music are so much alike, and you think
it's great for people to be able to freely put out new versions
of existing tunes, then you'd be all for getting rid of copyright
law entirely, since that's how it *used* to work.  My points
gave some bases for why that would be a *bad* thing for software-
creating; but it'd be great for music-making.  (It'd be bad for
people on the music-buying end, though, because it'd get to
where everybody and his brother would "write" stuff like Beethoven's
"Ode to Joy" and sell it.  Copyright law, with revolting stuff
like DAT tax and other impediments to technical merit in the
equipment, is quite well-suited to music, IMO; it's not ideal
for software, but it's probably much better than nothing.)

>Sorry, my disagreement with you is fundamental on this
>point. Since I disagree with your axiom, I shouldn'shall
>not go into your conclusions...

Maybe if you *think* about the distinctions I was making more, you'll
realize your only disagreement is with what you *thought* I wrote,
instead of what I actually did write.

I've reviewed my original points carefully and still cannot see
anything at all wrong with them.  In fact, that was, IMO, one of
the best things I've written in quite a long time.  (I've spent
a number of years as a technical writer as well.  If you want to
get into an *informed* discussion about the distinctions between
creative and artistic *activity* vs. the *product* of that activity,
technical writing being a much better example of the subtlety
of those distinctions than programming, you can contact me via
private email; I doubt the discussion would be of much interest
here.  In summary, tech writing is paid for on bases not unlike
games or the MacOS, in that artistic qualities are often most
effectively included in a subtle way, while functionality is still
highly important and the essential governing element in deciding
the purchase price.)

Remember, the foundation of the discussion *I* came into was, IIRC,
how, why, and from where *money* came into the picture when it
came to free software, possible ways to raise money to write it,
to license it, and so on.

I believe I provided some excellent points as to why the money-
raising, licensing, and IP picture is so different between software
and music.  I really wasn't intending to get into a discussion
about all the creativity and artistic sensibilities that might
go into the *act* of creating a work, because, AFAIK, sewer workers
do some pretty nice ballet moves underground, but I don't *think*
our tax dollars are paying them for that.  My points focused
primarily on the differences at the *paying end* of the process,
i.e. the consumer, including consumers who might someday want to
become producers.

        tq vm, (burley)