Subject: Re: Soul of a New Economic Idea?
From: (L. Peter Deutsch)
Date: Sun, 7 Feb 93 17:47:50 PDT

> If FSBs do manage to become successful in the marketplace (the beauty
> of capitalism, despite the claim of being movtivated by "anarcho--
> socialist" tendencies), patents will eventually be the undoing of the
> FSB. But FS and FSBs are not the solution to the demise of patents;
> FS and FSBs could leverage patents themselves. Given that copyrights
> on software are not protective enough of intellectual property, what is?

I disagree with your underlying premise that the concept of
"intellectual property" is sound, defensible, and worth maintaining.

I argued recently at a Usenix panel that since concepts and ideas, unlike
real property, can be disseminated (replicated) at nominal cost, and
provide greater value to society the more people can build on them, they
should be removed from the (capitalist) economic system, since their
nature does not match the underlying zero-sum concept of ownership that
this system is based on.  On the other hand, creative works, which are the
traditional subject of copyrights, derive their value from their physical
existence, so they should be treated more like real property.

As you can see, I think copyright protects those things that should be
protected, and I think that patents, by and large, protect things that
should not be protected.  The concepts, ideas, or algorithms embodied in a
piece of software should not be protected.  I believe software per se
should be protected on the same grounds that music and art are protected:
respect for the work that went into the embodiment outweighs the value of
free replication.  (This is, of course, a matter of social agreement, not
of natural law, and in a world where replication is very inexpensive, I'm
less sure what the answers should be.  For example, I believe that John
Perry Barlow, who is a professional in both music and software, argues
that copyright even for music may not be necessary -- that trademark and
brand naming are sufficient for a fair return to the artist, and allow
greater social value through copying and derivation.)

The standard counter-argument to this line of thinking is that monopoly
protection (patents) for inventors is necessary to provide motivation.
The basic counter-counter-argument comes from the observation that there
are many scientific and technological milieux in which invention is
carried on without an expectation of monopoly protection -- in which time
to market, excellence of product, etc., etc. are viewed as appropriate
competitive mechanisms.  This includes a lot of basic science, and, until
fairly recently, software.  In other words, we can exhibit both evidence
to indicate that the motivation is not necessary, and successful examples
of social agreement that certain activities should not be placed within
the zero-sum system.

There is also the argument that the system is not zero-sum -- that
invention creates value, and that the system works better if that value
can be monetarized to its greatest extent.  I would suggest that it is a
matter of belief (religion, if you wish) that only monetarized value is
worth considering.  Indeed, I have heard Objectivist arguments that it is
immoral not to derive the greatest possible monetary (or equivalent) value
from one's work.  Since religious and moral beliefs are, by their nature,
not subject to rational argument, I don't want to argue that point here.

I agree that FS and FSB *could* leverage patents.  But I consider it more
beneficial to society on a larger scale to participate in the development
of FSB that does everything possible to undermine the patent system for
software.  If one result of patenting is to drive up the cost of software,
then patent-free FS should be able to compete effectively with software
that has to pay license fees, and may ultimately change the social
consensus about the value of patenting.

L. Peter Deutsch :: Aladdin Enterprises :: P.O. box 60264, Palo Alto, CA 94306, ...decwrl!aladdin!ghost ; voice 415-322-0103 ; fax 322-1734
	    "Implementation is the sincerest form of flattery."