Subject: Re: proprietary -- a truism
From: hecker@netscape.com (Frank Hecker)
Date: Mon, 12 Apr 1999 08:00:26 -0400

Ian Lance Taylor wrote:
> I guess it depends upon what you mean by proprietary.

Exactly; see my rather long-winded post from last night.  (Sorry -- I
was tired and got to rambling.)

> If you can do something more cheaply than somebody else, and that
> somebody else wants the thing to be done, then you have something to
> sell.  What you are selling is your special skills.
> 
> These skills are not proprietary in the sense of something which you
> own which nobody else can own.  In fact, there may be many people with
> these skills.

I think you are confusing "proprietary" with "not fungible".  Your own
special skills _are_ "proprietary" in the sense that you ultimately
control how they are exercised; in this sense they are uniquely
associated with and exclusive to you.  However "there may be many people
with these skills", which means that they are fungible.

Maybe this is better illustrated by an example.  Consider a free
software business which releases a software product under a libre
software license, say the GPL.  Then let's consider the items in the
proposed list of things that are proprietary to that business.

>    Proprietary things:
>     1) Reputation.

It is unethical for someone to claim to be associated with the FSB if in
fact that person is not.  If the free software business owns trademarks,
then it is illegal for someone not associated with or authorized by the
FSB to use those trademarks in selling their own products. Thus the
reputation of an FSB is a proprietary asset of that FSB, as are
trademarks and related marks.

>     2) People's time.

It is illegal for someone else to compel (i.e., by force) the employees
of the FSB to work on projects for that person.  Thus the time of the
employees of the FSB is a proprietary asset of that FSB.

>     3) Physical copies.

If the FSB creates physical media (CDs, etc.) containing the libre
software, it is illegal for someone else to take (i.e., by theft) those
physical media and sell them as their own. Thus the physical media
created by the FSB (but _not_ the software on them) are proprietary
assets of the FSB.

>     4) Some of your software.

It is assumed that this other software is _not_ licensed under a libre
software license.  Thus it is illegal for someone else to use or
relicense that software without executing a proper license agreement
with the FSB.  Thus this other non-libre software created by the FSB is
a proprietary asset of the FSB.  (Whether the software is on physical
media or not is irrelevant in this case.)

>     5) Documentation.

It is illegal in any case for someone else to take by theft physical
copies of documentation and sell them as their own. If the documentation
is copyrighted and not released under some sort of "open content"
license, then it is also illegal for someone else to distribute that
documentation whether in physical or online form. Thus the documentation
created by an FSB is a proprietary asset of that FSB.

>     6) Datasets.

This case is similar to that of documentation: assuming the data are
copyrighted, it is illegal for someone else to distribute that data
whether in physical or online form. Thus data created by an FSB is a
proprietary asset of that FSB.

>     7) Hardware.

This case is similar to that of physical copies of software,
documentation, or data: it is illegal for someone else to take by theft
the hardware items and sell them as their own.
Thus hardware created by an FSB is a proprietary asset of that FSB.

> If you do consider people's time as proprietary, then I think it is
> indeed a truism that an FSB keeps something proprietary.  In fact, I
> think it follows that anybody who sells anything keeps something
> proprietary.

Well, yes.  For an FSB the only things that are _not_ necessarily
proprietary in the sense I've used (which I think is also the sense used
by Russ Nelson) are

* libre software in its electronic form

* documentation in its electronic form, if and only if it is placed in
the public domain or released under some sort of libre license

* data in electronic form, if and only if released into the public
domain or under some sort of libre license

So in fact you are right, "it is indeed a truism that an FSB keeps
something proprietary."
But even though it's a truism it still expresses a useful truth: those
things which are proprietary are exactly those things which an FSB can
legally and ethically attempt to sell for money.

Now, it is a different question to ask how successful the FSB will be in
selling these items, especially in competition with other vendors
selling similar items. That has more to do with how fungible those items
are, which is the question I touched on in my previous message.

Frank
-- 
Frank Hecker            Work: http://people.netscape.com/hecker/
hecker@netscape.com     Home: http://www.hecker.org/