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Weblog:   Dragging the Butter
Subject:   BountyQuest founder, is this opinion inconsistent?
Date:   2001-11-27 13:23:06
From:   fredsmoothie
Tim,


How do you know that "to see as much good software created as possible ... we need a range of licensing models?" This does not seem as self-evident to me as it apparently does to you.


This reminds me of the recent assertion by Daniel Weitzner, chair of the W3C's patent policy committe in his Slashdot interview that "Disallowing technologies which may only be available for a fee (RAND terms) would deny the Web access to the best technology available." As I pointed out in that forum in response to Dan, Ogg Vorbis is arguably a superior technology to MP3 for audio compression, and it's non-patent-encumbered, in addition to being GPL'd. I believe that there was a whole lot of innovation in software prior to it being considered copyrightable, and it quite a lot of innovation in the Open Source and Free Software communities.


While I don't object to the idea that strong IP protection necessarily fosters creative achievement -- though I don't agree with it -- I find it curious that so often people state this assumption as fact without any sort of supporting evidence -- unless the fact that our omnicient and benevolent slave-owning founding fathers believed it was can be taken as evidence. I find it especially ironic that someone such as Tim, with his publicly avowed aversion to software patents -- founder of BountyQuest, no less -- can believe that software patents stifle innovation but strong copyright protection combined with proprietary licensing somehow spurs it!


Tim, do you have any evidence which would indicate that the net level of software innovation during the period between the recognition of software as copyrightable material and the advent of the GPL was higher than at other times before or since? Can you point to any other set of data which supports this otherwise seemingly unfalsifiable position?

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  • Tim O'Reilly photo BountyQuest founder, is this opinion inconsistent?
    2001-11-28 12:55:19  Tim O'Reilly | O'Reilly AuthorO'Reilly Blogger [View]

    Whoa...! You're reading a whole lot into my message that isn't there. You seem to have translated my statement that ""to see as much good software created as possible ... we need a range of licensing models" into the oft-repeated statement that "strong IP protection necessarily fosters creative achievement".


    I believe the former. I don't believe the latter.
    I am not a believer in strong intellectual property protection. I'm a believer in "just enough" intellectual property protection to remind users of the right of creators, for a limited time, to set the terms on which their work is used. That's a very different thing. If my favorite author wants to burn his letters or her unpublished manuscript, that's the author's right, much as I might deplore it. Likewise, if an author wants to charge me more than I want to pay, that's also the author's right. If an author wants to give me his work for free and only wants to make sure that I must pass along that same right to others, that's also the author's right. This is a moral position, just as much as Richard's, and as such, needs no quantification.


    Nonetheless, I did make a quantitative assertion, which you refer to above. I don't have quantitative backup, though economists might. I believe it is self-evident, if only because people do have different beliefs and values about what they want to happen to their work. If we say that all intellectual creations must fit a single licensing model, we are saying that all creators are motivated by the same values. And there is a substantial amount of evidence that free market economies (for all their ills, which are many) do in fact produce more goods and services because they let individuals set the terms of exchange, rather than having a single top-down set of rules. As William Blake said in The Marriage of Heaven and Hell, "One Law for the Lion and the Ox is oppression."


    My concerns about the GPL are actually the same as my concerns about the numerous extensions of copyright that have happened in the 21st century. Both seem to me to over-reach themselves, and try to give too much control over what the user does with an intellectual product he or she receives. Both are in fact examples of overly strong "intellectual property" protection. (And yes, I know that Richard doesn't like the term "intellectual property" because copyrights, patents, and trade secrets are all different, and besides, the notion of property brings with it inappropriate assumptions of scarcity.) I completely support the right of Richard or any individual author to make his or her work available under the terms of the GPL; I balk when they say that others who do not do so are doing something wrong.


    I am willing to accept any argument that says that there are
    advantages and disadvantages to any particular licensing method. What
    I liked so much about Eric Raymond's ideas in The Cathedral and The Bazaar was that he did try to move the discussion to "what works" about
    free software and open source. While I said above that my position is a moral one, just as much as Richard's, it's also a pragmatic one. My moral position is that people should be free to find out what works for them.


    Of course the real debate here is just how far the rights of creators
    ought to extend. When are they reasonable and fair, and when do they
    overreach themselves?


    There is one really big variable in all of this: beliefs do influence behavior. In the introduction to his book The Open Society, George Soros makes the point that people spend a lot of time trying to decide if
    assertions are either true or false, when instead, there is a third category, namely things that are true or false to the extent that people believe in them. He cites markets (his specialty) and history as fields in which what people believe are key drivers of what happens. That's why people spend so much time (as we are doing now) trying to influence what other people believe!


    For some things I've written on related topics, see:
    http://tim.oreilly.com/publishing/copyprotection.html,
    http://www.oreilly.com/ask_tim/orabooks_os.html

    • BountyQuest founder, is this opinion inconsistent?
      2001-11-28 13:45:05  fredsmoothie [View]

      Tim,

      Thanks for the reply. Your point about your position being a moral/ethical/philosophical one is well taken; I'm glad that both sides of the debate can explicitly acknowledge that, because hopefully it adds some clarity to the debate.

      However I feel that your response begs the question, "if strong IP protection doesn't *necessarily* foster creative achievement, why do we *need* a range of licensing models?"

      I seem to understand from your answer that you think the "need" stems from different individuals' divergent wants and beliefs. From which I take it you mean that "some talented individual may *want* to get financial reward for problem solving or creative activity in a domain, and may not do it otherwise."

      However, do you really think that problem solving and creativity in important domains works that way? Will someone who's incredibly talented solve a problem in a domain that's of no interest to them because they're paid a lot of money (the fact that I'm typing this instead of doing what I'm supposed to leads me to the answer "no", BTW). If someone is working in a domain that doesn't engage them in and of itself, are they likely do a good job?

      As a thought experiment: what do you expect the outcome would be if almost anyone were told, "I'll give you 7 million dollars if you will sit in this spot and count to 7 million." Despite the vast appeal to most people of $7 million, I doubt *anyone* would do this, even if their material needs were met in the meantime.

      What I'm saying is, I think someone who is good at solving problems that can be solved by software probably likes solving that kind of problem enough to do it even without promise of riches. Likewise, I think individuals who are talented musicians and artists probably enjoy art and music in and of themselves; I believe that there is a strong correlation between ability and desire.

      Of course, everyone needs to eat. I get paid an hourly rate to write software. If someone wants a software problem solved enough, they will pay me. If a problem is interesting enough to me, I will work on it without pay. Likewise for artists. They will create, and if we as a society value that creativity, we'll find ways to pay them.

      I suspect that there was a time that no one got paid for making art, yet they did it anyway. Likewise, people told stories. Did the author(s) of the Gilgamesh epic enjoy copyright protection? I doubt it. Same probably goes to the oral progenitors of the Homeric epic, and Homer himself.

      So yes, if the argument is entirely a moral one, then the argument "some 'creators' may *want* to be compensated for their 'creation' in a fashion consistent with the monopoly power embodied in the concept of copyright" holds some weight. However, I can't see how anyone could assert (as you do) that that selfish want of one individual person carries greater moral weight then the desire to eliminate the harm of the restriction of the users' rights by the creator that Stallman and Kuhn speak of.

      Thanks for engaging so intelligently and earnestly, Tim.
      • Tim O'Reilly photo Why we need a range of licensing models
        2001-11-28 18:22:39  Tim O'Reilly | O'Reilly AuthorO'Reilly Blogger [View]

        Some people definitely create art, and literature, and programs, without the need for any IP protection whatsoever. We talk all the time about people writing open source software to "scratch their own itch." But it's also clear that many people write programs, and create works of art (books, movies, paintings, music) specifically to make money, and over time, a system of "intellectual property" protection has evolved to enhance the ability of these folks to maximize their return on their effort. Sometimes "maximize" goes too far. But it's also clear that there are some works that just don't get done when anyone can benefit as much (or more) than the creator. If you are creating something of value, and a freeloader can get it for nothing, they actually have a marketplace advantage over the creator, who has to incur the cost of development. Copyright and other forms of IP protection were originally designed to address this imbalance.

        In an ideal world this wouldn't be necessary. But I don't think we live in an ideal world. As Lao Tzu said, "Losing the way of life, men rely on goodness. Losing goodness, men rely on laws."

        As to your point that you can't see how anyone could assert that the desire of the individual to have power over their creations could be stronger than the desire of others to ensure that users have free access to those creations...well, I have an equally hard time seeing the opposite point of view. I have great respect for Richard's desire to have that outcome for his own work. But when he starts telling other people that they have no right to seek other outcomes, and to persuade users to accept restrictions in exchange for some value, we have to part ways.

        But this all digresses from my original point. Whether or not companies use IP restrictions to cause harm is moot. We know they do. But I argue that it's the excesses (e.g. the abuse of monopoly power to distort what would otherwise be a free exchange between buyer and seller) that are the problem, and not the fundamental choice of a creator to put some restrictions on the use of his or her work. And what's more, I argue that the GPL relies on this very right, this most fundamental right, as the basis for its own assertions about what users MUST do if they accept the terms on the use of GPLd software.
        • Please don't muddy the waters
          2001-11-28 21:44:26  fredsmoothie [View]

          Hmmm.

          I thought we were nearing consensus on some essential points, but perhaps I was mistaken.

          First off, I never said anything to the effect that I "can't see how anyone could assert that the desire of the individual to have power over their creations could be stronger than the desire of others to ensure that users have free access to those creations." We were talking about the moral weight attached to different desires, NOT the strength of the desires themselves.

          We had agreed, I thought, on the following points:

          1) That the argument is *primarily* a moral, ethical, and philosophical one;

          2) That the main practical consideration (the possibility that the promise of the benefits associated with exploiting an unnatural monopoly would spur creative output) rests on assumptions -- that this mechanism works or is neccessary -- that are currently unproven and possibly unprovable.

          Are you saying that the strength of one's desires is the sole determinant of moral value? That seems frighteningly relativistic; Hitler's desire to eliminate the Jews of Europe was extremely strong and I hope you and I both share a worldview which does not correlate the strength of that desire with a corresponding moral value.

          What I said was (and this is specifically in regard, remember, to your core concept of "freedom zero" and Kuhn and Stallman's response that freedom zero is not about freedom, but power), that I don't see how someone can attach greater MORAL WEIGHT to the desire of one individual to control what others do with information they've been given (with or without compensation) than to the right of those users to know what the software does, to fix it themselves if need be, and to help others fix it.

          I don't believe that there's any proof that proprietary software licensing is *needed* to spur creative output; you have not provided any such proof (though you still keep repeating that the assumption is valid without supporting it). In fact, it seems to me there is more evidence to the contrary in the long stream of creative effort throughout human history prior to the 300 or so years since copyright came into being.

          So if we agree that the idea that monopoly protection of IP in the form of copyright spurs innovation is a faith position, HOW DO YOU JUSTIFY ASSIGNING A GREATER MORAL VALUE TO THE CREATOR'S DESIRE TO CONTROL HIS CREATION AFTER IT'S CHANGED HANDS THAN TO THE RECIPIENT'S DESIRE NOT TO BE CAPTIVE TO THE WHIM OF THE CREATOR IN THE FACE OF THE NEED FOR CHANGES OR THE DESIRE TO ENRICH OTHER RECIPIENTS WITH A GIFT OF THE CREATION? Especially with regard to software, which, please remember, sometimes controls airplanes and nuclear reactors which have the power to take human life, AND OFTEN THE END CONSUMER HAS NO FREEDOM TO CHOOSE OTHER SOFTWARE. I can't choose what software is in my car or my cellphone; I should be able to fix it. The air travel authorities should be able to inspect and fix the software which runs out air traffic control system because NO SANE PERSON THINKS THE LIVES OF TRAVELERS IS WORTH LESS THAN THE LEISURE OF SOFTWARE AUTHORS.
  • Self-correction
    2001-11-27 14:57:36  fredsmoothie [View]

    Ogg Vorbis is LGPL'd, sorry for the goof.

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