Subject: Re: In defense of Bill
From: Tom Lord <lord@regexps.com>
Date: Tue, 25 Sep 2001 03:35:28 -0700 (PDT)



    Tom> It does.  Sorry.  Open source gives a smooth, gentle
    Tom> transition path but doesn't change the basic fact that Free
    Tom> Software does challenge the form and function of intellectual
    Tom> property law in the U.S.

       Either you misunderstand the meaning of property under law, or you are
       confounding "free software" with (a certain subgroup of) the free
       software movement who would like to change the law.

       Neither open source nor free software qua softawre threatens
       _anybody's_ property in any way shape or form.

On the contrary, though the point is a subtle one.

We are speaking specifically of intellectual property, not property in
general.  Intellectual property exists only by virtue of laws 
passed in response to the congressional mandate to promote progress in
the sciences and useful arts by providing authors and inventors
exclusive right to their respective writings and discoveries for
limited times.  Thus, property rights in general, and intellectual
property rights specifically, are quite distinct.

Congress does not have free reign to define the rights to intellectual
property.  Our civil liberties, for example, must be balanced against
those rights.  Where does that balance come out?  Well, our civil
liberty guarantees are broad and open-ended.  In contrast, our
intellectual property rights are specifically limited both in time and
purpose (they must "promote progress").

Free Software and FSBs challenge our accepted notions of what it takes
to "promote progress" -- they require weaker intellectual property
rights than more traditional means of promoting progress.

At the same time, digital technology creates a rapidly escalating
conflict between our civil liberties, and enforcement of traditional
intellectual property rights.

Something has to give under that tension: will it be civil liberties?
or will it be I.P.?  The more successful Free Software, FSBs, Free
Information, and FIBs become at "promoting progress" -- the closer we
come to a situation where our civil liberties will be strengthened,
and intellectual property rights will be weakened.

Perhaps a better way to put it, though, would be to say that digital
technology itself threatens I.P., and Free Software is simply part
of a truly American, liberty defending response.


-t