Subject: Re: open source definition
From: Craig Burley <>
Date: Mon, 27 Apr 1998 10:50:21 -0400 (EDT)

>The line I was responding to ("software is functional.
>Music is a creative...") seemed (to me) to imply that you
>didn't think software was a creative, artistic expression.
>I extrapolated out to talk about the creation of software,
>and thus perhaps missed your point.

Ok.  What I try to do, when responding, is, if I feel motivated
to react negatively to a line someone has written, to try and
closely examine the surrounding content and see if the author
might have been trying to say something different.  (Not that
I always do it, or, that it's always reliable anyway; I used
to, and probably still do, have this amazing (dis)ability to
write a paragraph that "clearly" says what I intended it to
mean and yet can be validly interpreted to say the exact
opposite, though I don't think I made that bad a mistake this
time!  :)

>In any event, if we agree that the creation of software is
>an artistic endeavour, then we arrive at the question of
>whether IP (such as music, software, etc) can and should
>be "owned". I'm sure there are any number who don't agree,
>but I take it as an axiom.

I take the idea of the works we're talking about, in general,
as constituting "expressions" as an axiom, indeed, and I think
you probably can deduce from the rest of my previous email that
I certainly support the idea that it's reasonable for government
to "intrude" upon our "natural" freedoms by creating and
enforcing the concept of IP.  I avoid saying "artistic
expressions" or "creative expressions" mainly to avoid the
endless silliness of "yes, but is it art?" and "yes, but is
it music?".  Also, I believe IP laws themselves use the
simple term "expression", or "creation".

>Starting with this axiom, you end up at the
>"implementation details" - to wit, what is the "best"
>mechanisms for promoting the creation and distribution of
>IP? (and if you don't buy this argument, you've already
>taken a different fork in the road at this point).
>So, we now have a thread discussing the intricacies of
>music copyright and how it applies (or can apply) to the
>software industry.

Well, I'm not sure it's gotten that intricate per se.  The
original question was (in essence, and I forget whether it
was you who posed it), "what is the difference between software
and music?"

I took that as "if music and software are so much alike, why
are they handled so differently as regards funding and

People have different ways of trying to find order in chaos
(a valid definition of "intelligence").  One of my pet
favorites is what I call "examine the deltas".  That is,
reason very honestly about, and look very carefully at,
the differences between things that seem similar in some
other ways.  (An alternate approach is to "simplify" by
hand-waving the differences, but I feel this too-often leads
to seeing chaos as, well, still pretty chaotic.)

The result of that exercise is often that I gain (what seems
like, anyway) a great deal of insight into why things that
seem outwardly similar behave, or are treated, differently.

In this case, I think the differences I pointed out probably
might well explain most of the outward differences we see
between the music and software industries.  (That's why I
pointed them out; I felt it was worth just talking about the
differences between the two without having to legitimize each
one from the standpoint of whether it supported a particular
point of view regarding free software.  I'd still like to
know just which of them are incorrect, and exactly how they're
incorrect, because they *still* look perfectly reasonable to me.)

But, sometimes, "examining the deltas" also gives plenty of
ammunition to concluding that most of the differences in
treatment or behavior aren't truly justified.  That might end
up being the case here; I just don't think I've seen any
evidence to counter my earlier conclusion that the
differences between the industries is explained largely by
the differences between the motivations for purchasing the
respective products and the ways those products are used
every day, instead of (say) that the industries "happened"
to pick different licensing arrangements, or got their "big
start" at different times in history (though the latter surely
plays *some* role).

>And we then recall that this thread started out discussing
>whether it is possible to interest the VC community in the
>free software model, and I replied "yes, if you realize
>they don't care about the free software model at all, but
>want investments in firms with good ROI and a commitment
>to profits". In such cases, they don't care if you use the
>free software model or not. This goes against some of the
>supposition I saw go by, which is why I posted.

Ah, okay.  BTW, I'm pretty sure I've agreed with pretty much
all you posted on that topic, though, I tend to lose track
of who said what, especially when the debate seems informative
and above-board, in which case I care much less about distinguishing
between those who I agree with and those who I don't.

>One final comment:
>> 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.  
>Actually, I didn't say I think people should be able to
>freely put out new versions of existing tunes. As I tried
>to make clear above, I believe in the concept of
>intellectual property. I want to encourage rights holders
>to permit othrs to build upon their work, but recognize
>their right to say "no" to reuse. 

Thanks for clearing that up.  It's important for people, in
general, to remember that, without IP laws, "I want to encourage
rights holders to permit others to build upon their work"
would be a somewhat silly statement as regards music, but
a much more substantial one as regards software.

But that's just in this day and age, when we have the
technology to fairly easily record and reverse-engineer
music, but not software, and in which selling merely the
opportunity to *use* (but not receive any copy of) software
is so much more reasonable than selling merely the opportunity
to *hear* (again, receiving no copy of) music.

(Years ago, only people like Mozart could go to a concert,
listen to a piece, and then reproduce it in sufficient
detail to "build upon it" without the composer's permission;
radio didn't broadcast the concert to many more people, recordings
didn't repeat it, and even the music itself was very difficult
to copy, especially if the composer "hoarded" the orchestral
score, in which case the only copies in "lots" of hands were
distinct copies of individual parts.)

See the French movie "Diva" for an enjoyable, slightly offbeat
illustration of what the kind of "music hoarding" I'm talking
about requires in this day and age.  See, for example,
<>, and a wide variety of
other sites, for plenty of examples of software lots of people
use every day (and could be asked, if they aren't already in
some cases, to pay to do so) but don't own any copies of.

The point being, encouraging people to allow others to build
upon their music does not really require IP laws today, but
it certainly does when "music" is replaced by "software",
as explained by some of the points I've been making -- the
IP laws are needed to encourage dissemination of software in
a form suitable for improvement.  Similar to how patent laws
are needed in the matter-transforming sciences.

I'm still not sure, or have probably lost track of, just how
my theses here relate back to the issue of making money by
writing free software, but it seemed worthwhile to offer my
perspective on the question about the differences between
software and music, which I find fascinating (probably because
I'm a big fan of using, and creating, both).

That way, I can hopefully add to this discussion and then sit
back and watch the rest of you somehow use my input in your
ongoing quest to solve the larger problem of funding free
software.  :)

        tq vm, (burley)