Comments from Frankston, Reed, and Friends
Tuesday, August 20, 2002
DPR at 5:12 PM [url]:
Developers, copyright, and vengeance rights
Dave Winer called me and we talked for a while about my posting and his concern about Larry Lessig's views on copyright.
I think I'm understanding more clearly what most upsets Dave. As a developer, he doesn't want to be forced to give his creations free to the world. He likes copyright protection for software, and thinks developers should not seek patents. He sees Larry as opposing copyright on software in any form.
That's not how I read Larry's books. But Dave does, and I think that explains why he takes it personally, and why he's so angry at Larry's talks.
My own view is a little more complicated. I like copyrights for software for two reasons. First, you can only infringe a copyrighted work by looking at it (that's different than patents, where you can infringe even if you come up with the idea while sitting on a desert island, isolated from contact with culture and technology). So bad action is very clear. Second, the idea is excluded - only the expression matters. That is, what the user sees and values is protected directly and as a whole.
But there are problems with copyright in software. Software is different than the written word in a book. Talking about software as if it were a book is a metaphor. Metaphorical reasoning is always dangerous, especially when practiced by legislators, judges, lawyers - anyone who doesn't understand the limits of the metaphor. Asserting such a metaphor is what leads to bad laws - because those legislators, judges, lawyers all begin to assume that all they need to understand is the metaphor. Once the metaphor of "software as book" is established in the legal system, there is no incentive for the law-givers to understand that developers and computer scientists and system architects work in a system that is totally different than the system that puts books on the bookstore shelves or your library stacks. After all, you computer guys said that software is just another kind of book...
And also, copyright is not merely the "right" to copy. Copyright has evolved beyond that, to what the lawyers call a "bundle of rights". An artificial collection of things that are claimed to relate to copying a creative expression. In the case of software, we are starting to see this - for example the Berman-Coble bill creates a "vengeance right" for copyright holders to wreak havoc on people's computers if they are suspected of having illegal copies of software on their machine. Did the US Constitution, or the Berne Convention on copyright, envision or suggest that copyright holders ought to have unilateral "vengeance rights"? What does "vengeance" have to do with the "right to copy"?
It's in the nature of copyright law's process to invent these creative new rights. Rights the public might (rightly) think have little to do with rewarding the creators, and more to do with rewarding the politically powerful - for example, consider the "works for hire" laws that were put in place to create new rights for copyright assignees (such as the big media companies) while stripping those rights from the creators by default!
So I agree with Larry as well. Copyright, especially copyright in software, is out of control. If we are going to use copyright in software (and developers benefit a lot from it), we are also going to have to adapt it and limit it. The limits are not going to be comfortable to greedy developers who want as many rights as possible.
But we don't want to throw out the baby with the bathwater. The fundamental concept of copyright is sensible as a way to reward creative risk-taking. I know how much hard work and craftsmanship is needed to do the stuff Dave does, and his customers value it too.
DPR at 9:24 AM [url]:
Winer vs. Lessig
Dave Winer isn't Larry Lessig's buddy. To quote Dave, "To Lessig, ... up yours." Dave's latest rant is triggered by Larry's comment that developers aren't taking the battles about copyright and patent to Washington.
I guess Dave takes Larry's comment very personally. He's really excited about his latest fight against Berman-Coble, and complained privately to me that Larry wasn't returning his calls or emails on that issue. I pointed out that Larry might just be busy with preparation for Eldred v. Ashcroft, where he is lead counsel. Dave responded, in effect, we don't need him anyway.
Dave's point seems to be that he's a "real developer" and Larry is merely a lawyer who should not be speaking for real developers. As Dave says: "Related to that, where are the developers these days. I'm not talking about hoardes of people who clone Unix and Unix utilities. I mean people doing real new software, new ideas, patentable stuff, who aren't taking the patents. Those are the people we should be hearing from. I also like hearing from smart respected lawyers. I'm not one of those people who think all lawyers are slime. But something is really wrong when all we hear from re technology are lawyers. That's when you get disconnects like his oft-repeated mantra that developers aren't doing anything. Well, Larry, if you don't talk to developers, how could you possibly know?"
Sounds to me like the people who call themselves developers aren't doing anything, even from Dave's point of view. This category of "real developer" - and I know what Dave means - is pretty darn small, because risk-taking creativity is uncommon everywhere. I've often remarked that there is precious little breakthrough innovation in the Open Source movement - instead a lot of bug fixing and polishing in some very old designs (like what mostly happens in Linux).
Maybe, just maybe, the few real, creative developers are taking action, along with the few creative lawyers who are not corporate captives. But there's not enough there for a mass movement. If you want votes or mass civil disobedience, you need the masses. Let's stop the pissing contests among the few who really care. It doesn't help recruiting.
I like Larry and I like Dave. I've learned a lot from discussions with them. They share many of the same values, and their differences seem almost trivial. Both seem happy to engage in debates with others, explore new ideas, and learn.
So why does Dave have this need to start a pissing contest? I guess it's in his nature (as the scorpion said to the frog).